Springfield v. Thompson

• Decision Date: 08 June 1915
• Docket Number: Case Number: 6227
• Parties: SPRINGFIELD et al. v. THOMPSON et al.
• Court: Oklahoma Supreme Court

1915 OK 427

149 P. 1093

47 Okla. 565

SPRINGFIELD et al. v. THOMPSON et al.

Case Number: 6227

Supreme Court of Oklahoma

Decided: June 8, 1915

Syllabus

¶0 1. APPEAL AND ERROR--Case-Made-- Service--Dismissal--Necessary Parties. Where a joint judgment has been rendered against three defendants, and the case-made is not served within 15 days, and an order is made on behalf of two of said defendants extending the time for making and serving case-made, and such case-made is not served upon the third defendant, nor the service thereof waived, amendments suggested, nor appearance entered at the signing and settling of the case, by said other defendant, the appeal will be dismissed for want of necessary parties.

2. SAME--Failure to Serve Case-Made--Cure of Error. Naming said defendant as a defendant in error in the petition in error, and the issuance and service upon her of a summons in error, does not serve to cure the failure to service the case-made on such defendant.

Error from District Court, Ellis County; G. A. Brown, Judge.

Action by Edward H. Thompson against W. H. Springfield and others. Judgment for plaintiff, and certain defendants bring error. Dismissed.

C. B. Warren and W. O. Cromwell, for plaintiffs in error.

C. B. Leedy, for defendant in error Edward H. Thompson.

SHARP, J.

¶1 This appeal is prosecuted from the judgment of the district court in favor of defendant in error Edward H. Thompson against plaintiffs in error, W. H. Springfield and John R. Thompson, and defendant in error Amanda J. Hankins. The last three named parties were defendants in the trial court. The decree was for the cancellation and annulment of certain deeds of conveyance made in fraud of the rights of the plaintiff, Edward H. Thompson, one of which deeds was executed by the defendant W. H. Springfield to his codefendant, Amanda J. Hankins. Motion for a new trial was filed by defendants John R. Thompson and W. H. Springfield, which motion was on October 7, 1913, overruled, to which action said last-named defendants excepted. The defendants were then given 90 days from date thereof in which to make and serve case-made for appeal. Thereafter defendants Springfield and Thompson obtained an order extending the time in which to make and serve a case. On February 28, 1914, the case-made was served upon A. M. Appleget, attorney for plaintiff, Edward H. Thompson, but was never served upon defendant Amanda J. Hankins. It is said, however, by the plaintiffs in error, in their answer to the motion to dismiss the appeal, that S. A. Miller and A. M. Appleget were also attorneys for Amanda J. Hankins. The latter, though duly served with summons, made no appearance in the lower court, and at the trial she was adjudged in default. That she may have consulted with either of the attorneys named is of no consequence, for it does not appear from the record before us that they were her attorneys of record. But even were our conclusions in this respect wrong, it would not benefit plaintiffs in error, as we shall see. The notice accompanying the case-made is addressed:

"To the Above-Named Edward (or E.) H. Thompson, and to His Attorneys of Record, A. M. Appleget, S.W. Miller."

¶2 And the acceptance which follows the notice reads:

"I, the undersigned attorney of record for the plaintiff, E. H. Thompson, hereby accept and acknowledge due, legal, and timely service of the above and foregoing case-made on me this 28th day of February, 1914, for and in behalf of said plaintiff, E. H. Thompson."

¶3 And it is signed:

"S. A. MILLER and A. M. APPLEGET,

"Attorneys for Plaintiff."

¶4 While the record fails to show that either Miller or Appleget was attorney of record for Amanda J. Hankins, yet, though they were, the case-made was accepted by them in behalf of E. H. Thompson alone. No other reasonable construction can be placed on the language of...