State ex rel. Hankins, Co. v. Holt

• Decision Date: 18 July 1912
• Docket Number: Case Number: 3641
• Citation: 125 P. 460,34 Okla. 314,1912 OK 506
• Parties: STATE ex rel. HANKINS, Co. Atty., v. HOLT et al.
• Court: Oklahoma Supreme Court

1912 OK 506

125 P. 460

34 Okla. 314

STATE ex rel.HANKINS, Co. Atty., v. HOLT et al.

Case Number: 3641

Supreme Court of Oklahoma

Decided: July 18, 1912

Syllabus

¶0 APPEAL AND ERROR--Parties--Defendants in Error. The rule of this court, requiring all parties who will be affected by a reversal or modification of the judgment appealed from to be made parties to the appeal, does not require persons over whom the lower court had not acquired jurisdiction by appearance or service of process to be served with copy of case-made or summons in error, although such persons may have been named as defendants in the petition below.

M. L. Hankins, Co. Atty., and Y. M. Williams, for plaintiff in error.

Garrett & Castleman, for defendant in error.

HARRISON, C.

¶1 This was an action, in the name of the state, by the county attorney of Jackson county against W. R. Holt, as principal, and S. J. Payne and D. B. Wade, as sureties, on a forfeited appearance bond. Summons was issued to all the parties, but served upon S. J. Payne only. Neither Holt nor Wade had any service of summons, nor made any appearance in the court below. Payne appeared and demurred to the petition for failure to state a cause of action, pointing out several specific instances wherein it was defective. On September 2, 1911, the demurrer was sustained, and plaintiff electing to stand on the petition, gave notice of appeal; 60 days being given to serve case-made, ten days for suggesting amendments, and five days for settlement. October 31, 1911, service of case-made was made on and accepted by defendant Payne. November 8, 1911, notice of settlement was served on and acknowledged by Payne. November 13th the case-made was settled and signed by the judge. February 29, 1912, petition in error and transcript of proceedings were filed in this court. On May 27, 1912, S. J. Payne, through his attorneys, Garrett & Castleman, filed a motion to dismiss the appeal, for the reason that no service of case-made has been made on either of the defendants W. R. Holt or D. B. Wade, and no summons in error issued to either of them. June 17, 1912, leave of this court having been obtained, plaintiff in error filed amended case-made by attaching copy of the summons issued out of the court below to the defendants, and on June 18th filed answer to the motion to dismiss. It is contended by counsel for the defendant in error that the suit being brought against Holt, Payne, and Wade, all were parties in interest, as defendants below, and necessary parties to the appeal, and, as Holt and Wade were not served with case-made or with summons in error, the appeal should be dismissed. The rule is well settled in this court, and, in fact, it is almost a universal rule, "that all parties interested in or to be affected by the reversal or modification of a judgment should be made parties to an appeal, and that they should be so made by the method prescribed by statute, such as service of case-made, summons in error, or waiver of same." But, as was said by the...