Strange v. Crismon

• Decision Date: 21 December 1908
• Docket Number: Case Number: 2143 OK Ter
• Citation: 98 P. 937,1908 OK 262,22 Okla. 841
• Parties: STRANGE et al. v. CRISMON.
• Court: Oklahoma Supreme Court

1908 OK 262

98 P. 937

22 Okla. 841

STRANGE et al. v. CRISMON.

Case Number: 2143 OK Ter

Supreme Court of Oklahoma

Decided: December 21, 1908

Syllabus

¶0 1. APPEAL AND ERROR--Dismissal--Defect of Parties. Every necessary party to an appeal must either make a general appearance within the year following the rendition of the judgment or the entering of the final order appealed from, or summons must issue within such time and service thereof be had upon the defendant in error, and when not so done, the appeal will be dismissed.

2. SAME. A petition in error by two of three defendants, against whom judgment was entered jointly for the recovery of a specified sum, to which the other defendant is neither made a party plaintiff nor defendant in error, must be dismissed for want of necessary parties.

Error from District Court, Pawnee County; B. T. Hainer, Judge.

Action by John Crismon against Edward Strange and others. Judgment for plaintiff, and defendants bring error. Dismissed.

On the 5th day of February, A. D. 1904, the defendant in error, John Crismon, as plaintiff, commenced this action in the district court of Pawnee county, Okla. T., against the plaintiffs in error, Edward Strange and his wife, Gertrude Strange, and S. E. Horton and others, as defendants, by petition, alleging that on the 14th day of October, A. D. 1902, the defendants Edward Strange and Gertrude Strange made, executed, and delivered to S. E. Horton their certain promissory note of that date, by the terms of which they agreed and promised to pay to the said S. E. Horton or order the sum of $ 1,000 on the 14th day of October, A.D. 1903, with interest thereon at the rate of 12 per cent. per annum from date until paid; that no part of same had been paid, and that there was then due and owing thereon the sum of $ 1,156.66, principal and interest, and an additional sum of $ 110 as attorney's fees, provided in said note to be paid by said defendants in the event that the same should be given to an attorney for collection; that said attorney's fee therein provided is reasonable, just and fair for the collection of said note, and that there was then due and owing on said note, including interest and attorney's fees as aforesaid, the sum of $ 1,266.66.

It is further alleged that prior to the maturity of said note, in the ordinary course of business, the said S. E. Horton sold, delivered and indorsed the same to the plaintiff, who ever since then had been, and still is, the owner thereof. Said note was dated at Pawnee, Okla. T., October 14, 1902, and payable on October 14, 1903 after date, without grace, to the order of the said S. E. Horton in the sum of $ 1,000, for value received, in Pawnee, Okla. T., to bear interest at the rate of 12 per cent. per annum from date until paid; the interest, if not paid when due, to become a part of the principal, and to bear the same rate of interest, and if not paid when due, and the same should be given to an attorney for collection, it is agreed that 10 per cent. of the principal, and $ 10 additional to said 10 per cent., should be paid as attorney's fees.

Plaintiff further alleged that at the time of the making of said note by the said defendants they were seised with an indefeasible estate of inheritance in and to lot No. 15, in block No. 35, in the town of Pawnee, in Pawnee county, Okla. T., according to the official plat of said town, and whilst so seised they made, executed, and delivered to the said S. E. Horton, to secure the payment of said note, their certain mortgage on said real estate, conveying all of said tract of land, with covenants and warranty, to the said S. E. Horton; that said mortgage was duly filed for record on the 15th day of October, 1902, in the office of the recorder of deeds, and recorded in book 6 of the record of mortgages at page 418; that said note was indorsed by the said S. E. Horton and delivered to the plaintiff, by which plaintiff is entitled to all the benefits and rights under said mortgage, and that no part of said note has been paid, and by reason of the breach of the conditions of said mortgage plaintiff is entitled to a foreclosure thereof, by the terms of which appraisement is expressly waived; that the other defendants herein, Harve Adams, J. B. Friedman, and Minnie Friedman, and the partnership estate of Strange & Adams, composed of Edward Strange and Harve Adams, have, or claim to have, some right, title, or interest or equity in and to said tract of land or lot adverse to plaintiff's claim by virtue of said mortgage. Plaintiff alleges that all of said right, title, and interest, if any they have, is inferior and subject to said mortgage and all of its conditions.

Plaintiff then prays for a judgment against the said Edward Strange, Gertrude M. Strange, and S. E. Horton for the said sum of $ 1,266.66, with interest thereon from that date at the rate of 12 per cent. per annum, and that said mortgage be foreclosed as to all of the defendants therein named, and that they each and all be forever barred and foreclosed from all right, title, and interest to said lot or tract of land and every part thereof, and that all of their said interests be adjudged to be subsequent to said mortgage lien, and that said property be sold according to law without appraisement, to satisfy said mortgage and debt, and that the proceeds of such sale be applied to the satisfaction thereof. Said mortgage was acknowledged by the said Edward Strange and Gertrude M. Strange, as provided by law.

Afterwards, on the 24th day of February, A. D. 1904, the defendants Edward Strange and Gertrude Strange filed their separate answer to plaintiff's petition, wherein they denied each and every allegation contained therein, except as otherwise specifically admitted. Further pleading, they alleged that about 1902 the defendant Edward Strange and his codefendant S. E. Horton entered into a partnership for the purpose of conducting a meat market business in said town. That each put in as capital stock in said partnership the sum of $ 1,000, and the same was conducted under the firm name and style of Edward Strange, the said Horton being a silent partner in the business. That on the 14th day of October, 1902, the said partnership being in need of funds for the purpose of increasing the capital stock thereof, the said Edward Strange and Gertrude M. Strange executed and delivered to their codefendant S. E. Horton, the note and mortgage referred to in plaintiff's petition, and the said Horton, as a part of the consideration of said transaction, placed in said business the $ 1,000 represented by said note and mortgage, and for the purpose of securing further credit to said partnership deposited said note and mortgage in the Pawnee County Bank, and borrowed thereon, for the use and benefit of said partnership, the sum of $ 600, which was thereafter increased to $ 1,000. That said business continued until the 14th day of February, 1903, when the said defendant Edward Strange sold his interest therein to said S. E. Horton; the said Horton taking the assets of said partnership at the invoice price of $ 2,294.25, no part of which has ever been paid to said Strange. A memorandum of said agreement between said Edward Strange and S. E. Horton, dated on the 14th day of February, 1903, is as follows:

"The said Ed Strange and S. E. Horton are now equal partners in ownership of the Palace Meat Market, each owning one-half of its assets, and each liable for one-half of its debts. The said Ed Strange has this day sold to the said S. E. Horton his interest in said business at invoice price. They agree to this and make settlement on this basis according to invoice price which has been taken. In this case the book accounts are to remain the joint property of the two, each owning one-half of the same as they collect them. The said S. E. Horton has this day placed in the hands of the First Nat'l Bank of Pawnee, the sum of $ 500.00 as guaranty that he will carry out this agreement in good faith."

That the book accounts mentioned in said memorandum have since that date been collected, and the proceeds thereof divided equally between the said Edward Strange and S. E. Horton. That the indebtedness of the said partnership at the time of the purchase by said plaintiff of the note and mortgage mentioned in said petition had been paid. That at the time plaintiff purchased the note and mortgage sued on, the said S. E. Horton was indebted to the defendants upon the settlement of their partnership account, over and above the amount represented in said note and mortgage, and for which reason the defendants were not then indebted to said S. E. Horton in any amount whatsoever. That the exact amount is unknown to the defendants, and cannot be determined without an accounting between the said S. E. Horton and the defendant Edward Strange. That by the said offset the said note has been paid in full.

The defendants then prayed that the plaintiff take naught by reason of the action on said note, and that an accounting be ordered between these defendants and their codefendant S. E. Horton, and upon said accounting being taken, that the said, note and mortgage mentioned in said petition be by order of court cancelled, and the title to said real estate or lot be quieted in favor of the said defendants, who are the legal owners and in the peaceable possession thereof, and for such other and further relief as may be equitable and just.

On the 17th day of May, A. D. 1905, the plaintiff, by leave of court, filed his reply to said answer, wherein he admitted that the defendants S. E. Horton and Edward Strange were partners, as alleged, and that said Horton executed the memorandum agreement as alleged. Plaintiff further alleged that at the time of the execution of said memorandum agreement, and the purchase of said interest of said Edward Strange in said partnership business, the said partnership was largely indebted to plaintiff in an amount and to an...