Phillips v. Hackler

• Decision Date: 21 December 1915
• Docket Number: 6580.
• Citation: 153 P. 863,49 Okla. 586,1915 OK 1087
• Parties: PHILLIPS ET AL. v. HACKLER.
• Court: Oklahoma Supreme Court

153 P. 863

49 Okla. 586, 1915 OK 1087

PHILLIPS ET AL. v. HACKLER.

No. 6580.

Supreme Court of Oklahoma

December 21, 1915

Syllabus by the Court.

All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of the case-made within the time prescribed by the statute must be had against all parties who do not join in the appeal as plaintiffs in error, but who are made parties thereto as defendants in error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge.

Action by Mary Hackler against Charles A. Phillips and others. Judgment for plaintiff, and defendants bring error. Dismissed.

Victor C. Phillips, of Durant, for plaintiffs in error.

Hatchett & Ferguson, of Durant, for defendant in error.

KANE, C.J.

This cause comes on to be heard upon a motion to dismiss, filed by the defendant in error upon the following ground:

"The judgment rendered herein is a joint judgment in favor of Mary Hackler against three defendants Sam Dane, Chas. A. Phillips, and Victor C. Phillips. The defendants Chas. A. Phillips and Victor C. Phillips filed motion for new trial, which was overruled and time given in which to serve case-made. No case-made was ever served on the defendant Sam Dane. There is no showing of service on Sam Dane and no waiver by him. This renders the case-made void; and, since this is an appeal by case-made, there is nothing for the court to consider, and hence the same should be dismissed."

This contention seems to be well taken. It is supported by National Surety Co. v. Oklahoma Presbyterian College, 38 Okl. 429, 132 P. 652, cited by the movants, and by many other cases.

The motion to dismiss is sustained.

All the Justices concur.