Smith v. Curreather's Mercantile Co.
| Decision Date | 24 June 1919 |
| Docket Number | 8084. |
| Citation | 184 P. 102,76 Okla. 170,1919 OK 187 |
| Parties | SMITH v. CURREATHER'S MERCANTILE CO. et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Oct. 14, 1919.
Syllabus by the Court.
In an appeal to the Supreme Court from a determination of a district or a county court, persons not affected by or interested in the result need not be made parties.
In an action by S. to foreclose a chattel mortgage given by H. and H. and to secure possession of the personal property described therein, the defendant mortgagors defaulted whereupon C., who secured a mortgage from H. and H. upon the same property after the petition of S. had been filed intervened, whereupon the cause proceeded between S. and C for the sole purpose of determining their rights under their respective mortgages, final judgment being rendered in favor of C., whereupon S. appealed without making H. and H parties. Held, that H. and H. were not necessary parties on appeal.
On the merits it appeared that S. failed to refile his chattel mortgage within three years from its original recordation as required by section 4035, Rev. Laws 1910, and that thereafter, and after the filing of the petition herein, C. secured a chattel mortgage upon the same personal property. S. concedes that by virtue of the foregoing section of the statute his mortgage ceased to be valid as against subsequent incumbrancers in good faith, but contends that, inasmuch as his mortgage continued to be valid as between the parties, the doctrine of lis pendens applies, by virtue of section 4732, Rev. Laws 1910, which provides: "When the petition has been filed, the action is pending, so as to charge third persons with notice of its pendency, and while pending no interest can be acquired by third persons in the subject-matter thereof as against the plaintiff's title; but such notice shall be of no avail unless the summons be served or the first publication made within sixty days after the filing of the petition." Held: (1) The failure to refile a copy of the chattel mortgage was not fatal to the instrument, nor did it affect its validity as between the parties or those with actual notice thereof; (2) that section 4732, Rev. Laws 1910, applies to personal property; (3) that when the petition was filed it protected the plaintiff to the extent of preventing the acquisition of any interest by third persons, in the subject-matter thereof, as against the plaintiff's title; (4) that the plaintiff's title was sufficient to entitle him to the benefit of the statute.
Error from County Court, Kiowa County; J. S. Carpenter, Judge.
Action by A. J. Smith against T. D. Huckaby and N.D. Harris to foreclose a chattel mortgage and to secure possession of property, in which defendants defaulted, and the Curreather's Mercantile Company and another appeared as interpleaders. Judgment for interpleaders, and plaintiff brings error. On rehearing, reversed and remanded, with directions.
Wylie Snow, of Coalgate, for plaintiff in error.
Zink & Cline, of Hobart, for defendants in error.
Upon rehearing we are convinced that the order dismissing the appeal should be set aside and the cause decided on its merits.
The facts, briefly, are these: That A. J. Smith, plaintiff in error herein, filed his petition in an action in replevin and brought suit on the 20th day of February, 1915, to foreclose a chattel mortgage given by T. D. Huckaby and N.D. Harris. Said mortgage was filed for record on the 29th day of December, 1911. On the 24th day of February, 1915, the Curreather's Mercantile Company and G. W. Green filed for record in the office of the county clerk a mortgage given by Huckaby and Harris on the same property; said mortgage being given to secure a debt for merchandise sold the year prior.
When the case came on for trial in the county court, Huckaby and Harris made default and dropped out of the case, and, Curreather's Mercantile Company and G. W. Green appearing as interpleaders, a trial was had for the sole purpose of determining the respective rights of the mortgagees under their respective mortgages. Upon judgment being rendered in favor of the interpleaders, Smith appealed to this court, but did not join Huckaby and Harris as defendants in error. In an opinion prepared by Mr. Commissioner West, which is pending on rehearing, this court dismissed the appeal for failure to make Huckaby and Harris parties to the proceedings to reverse the judgment of the lower court.
The opinion of the commissioner which was filed November 20, 1917, overlooks an order of this court of April 11, 1916, overruling motion of defendants in error to dismiss appeal, wherein this court considered the precise question upon which the commissioner dismisses the appeal. The grounds urged by defendants in error for dismissal were, of course, not briefed by counsel for plaintiff in error, in view of the prior order of this court. Regardless of the order of this court overruling the motion of defendants in error to dismiss appeal, the opinion of Commissioner West seems to be wrong as to the law.
The rule covering appeals of this character is stated in 3 C.J. 1007,§ 958, as follows:
"Where a judgment or decree is rendered against a part only of coplaintiffs or codefendants, an appeal on writ of error may and should be prosecuted only in the names of those prejudiced, and, where those not prejudiced are joined therein, the petition or writ will generally be dismissed."
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