Routh v. Tonini

• Decision Date: 25 May 1943
• Docket Number: 31340.
• Citation: 141 P.2d 287,193 Okla. 87,1943 OK 213
• Parties: ROUTH et al. v. TONINI et al.
• Court: Oklahoma Supreme Court

141 P.2d 287

193 Okla. 87, 1943 OK 213

ROUTH et al. v. TONINI et al.

No. 31340.

Supreme Court of Oklahoma

May 25, 1943

Rehearing Denied Sept. 28, 1943.

Syllabus by the Court.

By virtue of 12 O.S.1941 § 958, the case-made, or copy thereof must be served upon all opposite parties, as prescribed therein, within the time allowed by law or by the court order extending such time.

Appeal from District Court, Comanche County; J. I. Goins, Judge.

Action by Laura Tonini and another against Alice Routh, George I Routh, R. D. Cravens, and others to foreclose a mortgage. From judgments for plaintiffs and defendant Cravens defendants Routh appeal.

Appeal dismissed.

WELCH J., dissenting.

Robert W. Maupin and Denham A. Maupin, both of Oklahoma City, for plaintiffs in error.

Hemry & Hemry, of Oklahoma City, Robert S. Landers, of Lawton, and Rittenhouse, Webster, Hanson & Rittenhouse, of Oklahoma City, for defendants in error.

ARNOLD Justice.

Laura Tonini and North River Insurance Company, a corporation, filed an action against Alice Routh and George I. Routh, Leila Thurman, C. C. Goble and R. D. Cravens, to foreclose a mortgage on certain real estate located in Comanche County, Oklahoma. Leila Thurman filed a disclaimer. During the trial C. C. Goble also disclaimed any interest in the property. Cravens, one of the defendants-in-error, set up a judgment lien against the Rouths, plaintiffs-in-error. Plaintiffs-in-error denied that the mortgage was in default. As to the judgment lien claimed by Cravens, they alleged payment. The trial court, after hearing evidence, entered a judgment in favor of the defendants-in-error, Tonini and North River Insurance Company and determined therein that the mortgage lien was a first lien and superior to the judgment lien claimed by Cravens. It then ordered the property sold and the proceeds therefrom used: First, to pay the costs of the action; second, to pay the judgment of Tonini and the North River Insurance Company, and third, to pay the judgment due Cravens. After motion for new trial was overruled plaintiffs-in-error gave notice of intention to appeal to this court. The record discloses that the case-made was served on the attorneys for Tonini and the North River Insurance Company but does not show any service on Cravens or his attorney; neither does it show proof of the service of a written notice of the filing of same in the office of the clerk of the trial court on Cravens or his attorney. The petition-in-error contains two assignments of error relating to the judgment in favor of Cravens. The other assignments of error go to the judgment in favor of Tonini and the North River Insurance Company.

The defendant-in-error, Cravens, filed a motion to dismiss the appeal for the reason that the plaintiffs-in-error failed to serve the case-made on him, as required by 12 O.S.1941 § 958. The defendants-in-error, Tonini and North River Insurance Company, filed a motion to dismiss based on the same ground.

By virtue of 12 O.S.1941 § 954, the giving of notice of appeal automatically made all parties of record in the lower court parties herein. See City of Sapulpa v. Young, 147 Okl. 179, 296 P. 418; Mires v. Hogan, 79 Okl. 233 192 P. 811. As provided therein, since Thurman and Goble disclaimed any interest, they are not parties to the appeal and it was not necessary for the case-made to be served upon them. However, it was necessary to serve the case-made upon all the opposite parties or their attorneys in the manner prescribed by Section 958, supra. The petition-in-error sets forth two assignments by reason of which...