Steele v. Million

• Decision Date: 12 October 1915
• Docket Number: 7360.
• Citation: 155 P. 495,49 Okla. 728,1915 OK 771
• Parties: STEELE ET AL. v. MILLION ET AL.
• Court: Oklahoma Supreme Court

155 P. 495

49 Okla. 728, 1915 OK 771

STEELE ET AL. v. MILLION ET AL.

No. 7360.

Supreme Court of Oklahoma

October 12, 1915

Rehearing Denied Jan. 11, 1916.

Syllabus by the Court.

On appeal, all parties to a judgment which is sought to be reversed whose interests will be affected by a reversal of the judgment must either join in the proceedings in error, or be made parties defendant, and be brought into this court by service of summons within the statutory time, and where they do not voluntarily appear, or on motion, the appeal will be dismissed.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge.

Action between C. L. Steele and another and E. C. Million and others. From the judgment, the parties first mentioned bring error. Dismissed.

William T. Hutchings, W. T. Wisdom, and Claude L. Steele, all of Muskogee, for plaintiffs in error.

W. H. Twine, Rosser & Cochran and Andrews & Leidke, all of Muskogee, for defendants in error.

HARDY, J.

Defendant in error E. C. Million specially appears and files motion to dismiss for the reason that summons in error was not issued and served upon him within the time prescribed by law. Motion for new trial was overruled December 21, 1914, and petition in error filed in this court May 13, 1915. Summons in error was issued on May 13, 1915, which was returned not served. On May 28, 1915, alias summons in error was issued and was returned not served on June 22, 1915. Since the last-named date no further effort towards procuring service upon said defendant in error has been made.

The appeal will be dismissed. In White Lumber Co. v. Beasley et al., 146 P. 1082 (not yet officially reported), it was said:

"On appeal all parties to a judgment which is sought to be reversed whose interests will be affected by a reversal of the judgment must either join in the proceedings in error or be made parties defendant, and be brought into this court by service of summons within the statutory time, and where they do not voluntarily appear, or on motion, the appeal will be dismissed." Durant et al. v. Munford, 38 Okl. 552, 134 P. 50; School Dist. 39 v. Fisher, 23 Okl. 9, 99 P. 646.

It is so ordered.

All the Justices concur.