Scott v. Amis
Decision Date | 31 December 1928 |
Docket Number | Case Number: 18617 |
Citation | 276 P. 215,1928 OK 767,136 Okla. 72 |
Parties | SCOTT et al. v. AMIS et al. |
Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Necessary Parties on Appeal.
All persons who are parties to the proceedings in the trial court, and whose interests will be adversely affected by a reversal of the judgment, must be brought into the appellate proceedings.
2. Same--Dismissal of Appeal for Defect of Parties.
If the interests of those who are brought into the appellate proceeding as parties will be injuriously affected by a reversal or modification of the judgment complained of, without a reopening of the case at to the other parties, as to whose interest the judgment has become final by the failure to appeal, the appeal will be dismissed.
3. Same--"Adverse Party to Plaintiff in Error."
An adverse party to the plaintiff in error on appeal is one who is interested in upholding the judgment sought to be reversed.
4. Same--Nullity of Case-Made Where not Served on Adverse Party.
A failure to serve case-made on an adverse party whose rights might be injuriously affected by a modification or reversal of the order or judgment appealed from, renders such case-made a nullity and by it nothing is brought before this court for review.
Error from District Court, Tulsa County; R. D. Hudson, Judge.
Action by Mildred Amis against J. M. Scott, Phillips Petroleum Company, and Devonian Oil Company. From judgment in favor of plaintiff against defendants Scott and Phillips Petroleum Company and in favor of defendant Devonian Oil Company, the defendants first named bring error. Dismissed.
Ross & Thurman, for plaintiff in error J. M. Scott.
R. H. Hudson, H. H. Barth, H. R. Hudson, and W. L. Barnes, for plaintiff in error Phillips Petroleum Company.
Ford & Montgomery, for defendant in error Mildred Amis.
¶1 This is an appeal from the judgment of the district court of Tulsa county rendered in an action wherein Mildred Amis, as plaintiff, sought to recover damages from the Phillips Petroleum Company, the Devonian Oil Company, and J. M. Scott.
¶2 Cause was tried to a jury. At the conclusion of the introduction of the evidence by the plaintiff, the Devonian Oil Company demurred thereto, which demurrer was by the court sustained.
¶3 At the conclusion of the taking of the evidence and after the court had given its instructions to the jury, the plaintiff's cause of action as against the defendants Phillips Petroleum Company and J. M. Scott was submitted to the jury and verdict rendered in favor of the plaintiff and against the defendants Phillips Petroleum Company and J. M. Scott. Judgment was rendered in favor of the plaintiff against the Phillips Petroleum Company and J. M. Scott, and against the plaintiff in favor of the Devonian Oil Company.
¶4 Motion for new trial was filed by the plaintiffs in error, Phillips Petroleum Company and J. H. Scott, and by the court overruled, and from the judgment of the court and the order overruling the motion for new trial, the defendants Phillips Petroleum Company and J. M. Scott have appealed to this court.
¶5 At the time the motion for new trial was overruled plaintiffs in error gave notice of appeal in open court, which action automatically made Mildred Amis and the Devonian Oil Company parties to this appeal.
¶6 The plaintiffs in error in their petition in error made the Devonian Oil Company a party to this appeal, but the appeal has heretofore been dismissed as to said Devonian Oil Company for the reason no case-made was served upon it.
¶7 The defendant in error Mildred Amis has filed in this court her motion to dismiss the appeal on the ground that no case-made was served upon said Devonian Oil Company, whose rights might be prejudicially affected by the modification or reversal of the judgment appealed from, and which is a necessary party to this appeal.
¶8 Plaintiffs in error have responded to this motion and admit no case-made was served upon the Devonian Oil Company, and this admission is supported by the record filed in this court.
¶9 The plaintiffs in error assert in said response that the Devonian Oil Company is not an adverse party; that its rights will not be affected by a reversal of the judgment and it is not a party to the judgment appealed from.
¶10 By this motion and response two propositions are presented. First. Is the Devonian Oil Company a necessary party to this appeal? Second. If so, was it necessary to serve case-made upon it?
¶11 The first proposition is answered affirmatively in a number of cases decided by this court as follows: Humphrey v. Hunt, 9 Okla. 196, 59 P. 971; Kansas City, M. & O. Ry. Co. v. Williams, 33 Okla. 202, 124 P. 63; Ft. Smith & W. Ry. Co. v. Wilson, 33 Okla. 280, 124 P. 948; Denny v. Ostrander, 33 Okla. 622, 127 P. 390; Chickasha Light, Heat & Power Co. v. Bezdicheck, 33 Okla. 688, 126 P. 821; Gwinnup v. Griffins, 34 Okla. 117, 124 P. 1091; C. R. I. & P. Ry. Co. v. Austin, 63 Okla. 169, 163 P. 517; City of Lawton v. Burnett, 72 Okla. 205, 179 P. 752.
¶12 In the case of City of Lawton v. Burnett, supra, this court announced the following rule:
¶13 In the case of C., R. I. & P. Ry. Co. v. Austin, supra, the court announced the rule as follows:
¶14 In that case at the former trial the court sustained a demurrer to the evidence as to the defendants composing the train crew, and in each of the cases cited above the judgment was rendered in favor of the plaintiff as against some of the defendants and in favor of others, and in each case this court held that the defendant in whose favor judgment was rendered was a necessary party to the appeal, and the reasons given therein are applicable to the facts in this case, and present a reason why the defendant Devonian Oil Company is a necessary party to this cause on appeal. The judgment rendered in this case being a joint judgment, reversal of the cause and the granting of a new trial would reopen the entire judgment and require the defendant Devonian Oil Company to again defend.
¶15 In the case of Wade v. Hope & Killingsworth, 65 Okla. 69, 162 P. 742, this court announced the following rule:
"The reversal of a joint judgment on appeal by one of the defendants against whom such judgment has been duly rendered of necessity opens up such joint judgment, which otherwise, as to them, would become final by the failure of such parties to appeal, or by a failure on the part of those appealing to duly and properly bring such parties into the...
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City of Sapulpa v. Young, Case Number: 20699
...their respective demurrers to the evidence offered by the plaintiff. The plaintiff, to sustain her motion to dismiss, cites: Scott v. Amis, 136 Okla. 72, 276 P. 215; Houghton v. Sealy, 129 Okla. 168, 264 P. 140, and cases therein cited. ¶14 In Scott v. Amis, supra, the action was originally......
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Sherry v. State ex rel. Bd. of Com'Rs of Tulsa Cnty.
...appealed from renders such case-made a nullity, and by it there is nothing brought before this court for review. Scott et al. v. Amis et al., 136 Okla. 72, 276 P. 215, and cases therein cited. ¶5 Wayne L. Dickey and the Maryland Casualty Company being necessary parties to this appeal, and t......