Springfield Fire & Marine Ins. Co. v. Gish, Brook & Co.

• Decision Date: 12 May 1909
• Docket Number: Case Number: 273
• Citation: 102 P. 708,1909 OK 127,23 Okla. 824
• Parties: SPRINGFIELD FIRE & MARINE INS. CO. v. GISH, BROOK & CO.
• Court: Oklahoma Supreme Court

1909 OK 127

102 P. 708

23 Okla. 824

SPRINGFIELD FIRE & MARINE INS. CO. v. GISH, BROOK & CO.

Case Number: 273

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. APPEAL AND ERROR -- Dismissal -- Defect in Petition in Error. A petition in error, in the title of which defendants in error are designated by their firm name only, is not fatally defective, and will not, on such account, be dismissed without first giving leave to plaintiff in error to amend, where the judgment appealed from is correctly described in the petition in error, and where such petition in error, aided by the case-made, which is attached to, and made a part of, the petition in error, discloses the names of the individuals constituting the partnership.

2. APPEAL AND ERROR -- Dismissal -- Defect in Summons in Error. A summons in error, in which defendants in error are designated by their firm name only, and which has been served upon the attorney of record for the defendants in error, is not absolutely void on account of failure to designate the defendants in error by their individual names, and such irregularity, under the provisions of section 4343, Wilson's Rev. & Ann. St. 1903, is remediable by amendment.

3. APPEAL AND ERROR -- Case-Made -- Order Extending Time. Where a motion for a new trial in the trial court is necessary in order that the matters complained of by plaintiff in error in his petition may be reviewed by this court upon a proceeding in error, an order of the trial court, made within three days after the entry of the order overruling the motion for a new trial, by which the time for making and serving a case-made is extended, is valid, although the judgment is not entered until after the entry of the order overruling the motion for a new trial, and after the making of the order extending the time in which to make and serve a case.

4. SAME. A purported order of the trial judge, extending the time in which to make and serve a case-made, is without force, where the case-made fails to show affirmatively that such order was made, and where it does not appear that such order was ever filed in the case in the lower court, or entered of record upon the journal of the court, as required by section 4731, Wilson's Rev. & Ann. St. 1903.

Error from District Court, Caddo County; Frank M. Bailey, Judge.

Action by M. N. Gish and others, co-partners, doing business under the name of Gish, Brook & Co., against the Springfield Fire and Marine Insurance Company. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss the petition in error. Motion sustained.

Fulton, Stringer & Grant, and Wm. Thompson, for plaintiff in error.

A. J. Morris, for defendant in error.--Time in which to make and serve case-made--order of extension--insufficiency of record: Devault v. Merchants' Exc. Co., 22 Okla. 624; Homer v. Christy, 4 Okla. 553; Gardenshire v. Burdick, 7 Okla. 212; Sproat v. Durland, 7 Okla. 230; Ford v. McIntosh, 22 Okla. 423; Sigman v. Poole, 5 Okla. 667; Board of Com'rs v. Burrow, 8 Okla. 212.

HAYES, J.

¶1 This proceeding in error is brought from a judgment rendered in the district court of Caddo county, in an action wherein M. N. Gish, T. H. Brook, and G. W. Baker as joint plaintiffs, doing business under the firm name of Gish, Brook & Co., sued plaintiff in error on an insurance policy issued by plaintiff in error to said partnership, Gish, Brook & Co. Defendants in error have entered their special appearance in this court for the purpose of filing and presenting a motion to dismiss this proceeding upon several grounds.

¶2 The petition, after the caption, giving the style of the court, is styled as follows: "Springfield Fire & Marine Insurance Company, Plaintiff in Error, v. Gish, Brook & Co., Defendants in Error." Plaintiff in error complains of the defendants in error, and alleges that the defendants in error, Gish, Brook & Co., at the January, A. D. 1908, term of the district court of Caddo county, recovered a judgment against it. The names of the persons constituting the partnership appear neither in the body of the petition, nor in the title thereto. This is the first objection for which dismissal is asked. It is insisted that a partnership is not a legal entity, and that therefore there is no defendant in error in this proceeding, and that the parties to the action in the trial court, whose interest in the judgment will be affected by the reversal thereof, have not been made parties to this proceeding. Plaintiff in error has asked leave to amend its petition by stating therein the names of the persons constituting the partnership. The case-made is attached to the petition in error, and by specific language of the petition in error is made a part thereof. The case-made fully discloses that the said M. N. Gish, T. H. Brook, and G. W. Baker constitute the firm of Gish, Brook & Co., and that they are the real defendants in error. The petition, aided by the case-made, readily informs any one who the parties defendant in error are, and the objection made by the motion is one of technical irregularity, rather than an irregularity that affects the substantial rights of the parties, and it is evident that the designation of the defendants in error by their firm name in the title is the result of inadvertence or loose practice on the part of counsel, into which counsel for plaintiff in error seems not alone to have fallen, for the findings of the trial court and its judgment appear to have been in one entry, and is styled as follows: "Gish, Brook & Co., Plaintiff, v. Springfield Fire & Marine Insurance Company, Defendant"--and there is nothing in this entry which discloses who the members of the firm are. It recites that the judgment is rendered in favor of the above-named plaintiffs, which results in the judgment being rendered in favor of the plaintiffs in their firm name. The judgment, therefore, is correctly described in the petition.

¶3 It is not contended that, by failure to state in title the names of the individuals composing the partnership, defendants in error have been misled, or that the petition in error is insufficient to inform them in what action it is taken, or what judgment is sought to be reversed. Under the provisions of our Code providing for amendments, which we shall discuss more fully in the consideration of the next proposition which arises on this motion, we think that a motion to dismiss this petition should not be sustained, without an opportunity being given to plaintiff in error to amend its petition, for the reason that the only defect appearing therein, when the petition is read in connection with the case-made, is that the petition is incorrectly entitled, and this is not an error for which it should be dismissed. Missouri River, F. S. & G. R. Co. v. Owen, 8 Kan. 409.

¶4 In this jurisdiction where the mode of review is by writ of error, such proceeding is generally classed as an original action, and the formal requisites necessary to the institution of a new suit must be strictly complied with. Webster v. Gaff et al., 6 Colo. 475; Ripley v. Morris, 2 Gilm. (Ill.) 381; Eldridge v. Walker et al., 80 Ill. 270; Allen, Ball & Co. v. Mayor, 9 Ga. 286; Gregg et al. v. Bethea, 6 Port. 9; Macklin v. Allenberg et al., 100 Mo. 337, 13 S.W. 350. And the rule generally prevails that a writ of error, prosecuted by or against a partnership without setting out the names of the members of the partnership, is a fatal defect, and confers no jurisdiction upon the appellate court (Godbe v. Tootle, 154 U.S. 576, 14 S. Ct. 1167, 19 L. Ed. 831; Mussina v. Cavazos, 6 Wall. 355, 18 L. Ed. 810; Samuel Smyth v. Strader, Pevine & Co., 12 HOW 327, 13 L. Ed. 1008), but in those jurisdictions where appellate proceedings are had by other modes than by the writ of error, and where the distinction between an appeal and a writ of error has not been preserved, an appellate proceeding is not generally regarded as an original action. 2 Enc. Pl. & Pr. 35.

¶5 The distinction between an appeal and a writ of error has not been preserved by the statutes of this state. In civil cases, but one mode of review by this court of a judgment or final order of a district court or county court is provided. That mode is generally known as a proceeding in error, and is effected by filing a petition in this court, together with a case-made or a transcript. A proceeding in error under the statutes of this state has many features of a new action, and the provisions of the statutes for taking and prosecuting an appeal or proceeding in error are, in some respects, the same as for the commencement and prosecution of an original action in the trial court, but such proceeding is rather a continuation in this court of the original action begun in the lower court than a new action. It is a subsequent proceeding in the same action, but in a different court, to the taking and prosecution of which the statutes prescribe the thing necessary to be done, and such provisions of the statutes are mandatory. A proceeding in error cannot be begun in this court without a petition, nor by petition without either a case-made or a transcript, and the issuance of a summons, the service of which upon the necessary parties gives this court jurisdiction; but the purpose and object of a petition are only to inform the court and the interested parties of the action in which the appellate proceeding in this court is desired, and of the judgment or order of the trial court sought to be reversed, vacated, or modified, and of the errors of the trial court for which a reversal is sought. The petition in error in the case at bar, aided by the case-made, accomplishes all these objects. There can be no uncertainty in the mind of any one who reads the petition filed in this court as to the action in which this proceeding is brought, nor as to the judgment sought to be reversed, nor as to the actions of the trial court of which the plaintiff in error complains. The...