Ralls v. Caylor Lumber Co.

• Decision Date: 09 January 1917
• Docket Number: 8426.
• Citation: 162 P. 711,67 Okla. 242,1917 OK 68
• Parties: RALLS ET AL. v. CAYLOR LUMBER CO.
• Court: Oklahoma Supreme Court

162 P. 711

67 Okla. 242, 1917 OK 68

RALLS ET AL. v. CAYLOR LUMBER CO.

No. 8426.

Supreme Court of Oklahoma

January 9, 1917

Syllabus by the Court.

In an action brought by a subcontractor to recover a personal judgment for building materials furnished a contractor, and to enforce a materialman's lien for the amount due and unpaid upon the lands, buildings, and appurtenances of the owners, personal judgment was rendered in favor of the subcontractor against the contractor, and a lien adjudged and ordered foreclosed upon the premises. From the judgment the owners prosecuted error without making the contractor a party to the proceedings for review. Held, for the reasons stated in the opinion, that it is unnecessary, to the owner's right of review, that the contractor be made a party to the proceedings in error.

Error from District Court, Atoka County; J. H. Linebaugh, Judge.

Action by the Caylor Lumber Company, a partnership consisting of Floyd Caylor and R. A. Caylor, against Eva A. Ralls, Joseph G. Ralls, and E. W. Steward. Judgment for the plaintiff, and defendants Eva A. Ralls and Joseph G. Ralls bring error. Motion to dismiss overruled.

J. G Ralls, of Atoka, for plaintiffs in error.

A. A McDonald and A. M. Works, both of Hugo, for defendant in error.

SHARP C.J.

In October, 1914, in the district court of Atoka county, the Caylor Lumber Company brought an action to recover a personal judgment of E. W. Steward for the amount of a bill of lumber sold him, and the foreclosure of a materialman's lien upon certain real estate of Eva A. Ralls and Joseph G. Ralls. Trial being had before a jury, the following verdict was returned in favor of the lumber company:

"We, the jury do on our oaths find for the plaintiff Caylor Lumber Company, and against the defendant E. W Steward in the sum of $1,183.55 and further find a lien in favor of the plaintiff Caylor Lumber Company, and against the defendants Eva A. Ralls and Joseph G. Ralls in and to lot 3, block 26, in the city of Atoka, Atoka county, state of Oklahoma, according to the official plat and survey."

Thereupon the court made and entered its judgment, the pertinent parts being as follows:

"It is therefore considered, ordered, and adjudged by the court that the plaintiff Caylor Lumber Company, a partnership consisting of R. A. Caylor and Floyd Caylor, do have and recover of and from the defendant E. W. Steward the sum and amount of $1,183.55, and all its costs in this behalf expended; said principal sum of $1,183.55 to bear interest from this 23d day of November, 1915, at the rate of 6 per cent. per annum, and for all of which execution may issue. It is further considered and adjudged by the court that said judgment in the sum and amount of $1,183.55, with interest as aforesaid, is a first and valid lien against the property of the defendants Eva A. Ralls and Joseph G. Ralls, said property being described as follows, to wit [description]."

Motion for a new trial was filed by the defendants Eva A. Ralls and Joseph G. Ralls, and, being overruled, they bring the case to this court for a review of the judgment rendered against them. No motion for a new trial or proceedings in error were filed or prosecuted by the defendant Steward.

The defendant in error has filed a motion to dismiss the appeal because Steward was not made a party to the proceedings in error. It is not contended that the judgment against the defendants was a joint judgment, the sole proposition urged in support of the motion to dismiss being that the defendant Steward would be adversely affected by a reversal of the cause, and therefore, under the decisions of this court, he is a necessary party to the appeal. Clearly he is not. In Jones v. Balsley & Rogers, 25 Okl. 344, 106 P. 830 138 Am. St. Rep. 921, a very similar state of facts was before the court for consideration. There the action was to recover the price of material furnished by Jones to Balsley & Rogers, contractors, which material was used in the construction of a building on the property of Muldrow, Bledsoe, and Colbert, and also to have a lien declared and enforced upon the property of the latter. Judgment was rendered in favor of the owners or proprietors on the issues joined, and a default judgment taken in favor of the plaintiff and against Balsley & Rogers. Jones appealed from the judgment, but the case-made was not served on Balsley & Rogers, for which reason, among others, a motion to dismiss was filed by the defendants in error. In determining whether Balsley & Rogers were necessary parties to the appeal, upon whom service of the case-made ought to have been had, the court considered...