Taliaferro v. Ballard

• Decision Date: 11 February 1941
• Docket Number: 30118.
• Citation: 111 P.2d 184,188 Okla. 465,1941 OK 55
• Parties: TALIAFERRO et al. v. BALLARD et al.
• Court: Oklahoma Supreme Court

111 P.2d 184

188 Okla. 465, 1941 OK 55

TALIAFERRO et al. v. BALLARD et al.

No. 30118.

Supreme Court of Oklahoma

February 11, 1941

Rehearing Denied March 18, 1941.

Syllabus by the Court.

All parties to an action whose interests will be affected by a reversal of the judgment appealed from must be made parties to the appellate proceeding.

Appeal from District Court, Marshall County; J. I. Goins, Judge.

Action by Viola Ballard, and others, against B. N. Taliaferro and Octavia Taliaferro, husband and wife, G. W. Taliaferro and another, to foreclose a mortgage. From a judgment for plaintiffs, the named defendants appeal. On motion to dismiss for failure to make second mortgagee a party to proceedings on review.

Appeal dismissed.

Reuel W. Little and Jack H. Smith, both of Madill, for plaintiffs in error.

Welch & Grigsby, of Madill, for defendants in error.

GIBSON Justice.

From a judgment and decree of foreclosure the mortgagors have appealed.

Defendants in error now move to dismiss for failure of plaintiffs in error to make the second mortgagee a party to the proceedings on review.

The second mortgagee, Commercial Standard Insurance Company, was a party defendant in the trial court. By the judgment its mortgage was held inferior and subject to the mortgage of the defendants in error, and all defendants, including said company, were forever barred and foreclosed from asserting any right, title or interest in and to the premises from and after the sale thereof. The company did not appeal; nor was it made a defendant in error in these proceedings.

Defendants in error say the second mortgagee is a necessary party, and failure to join it as plaintiff or defendant in the proceedings in error requires dismissal of the appeal. George v. Robinson, 47 Okl. 623, 149 P. 1087. They say further that a reversal of the judgment will affect the interests of the second mortgagee, and for that reason it is a necessary party to the proceedings on review. John v Paullin, 24 Okl. 636, 104 P. 365; United States F. & G. Co. v. Ballard, 44 Okl. 807, 145 P. 396.

The present motion seems well taken in view of the rule stated in John v. Paullin, supra. It was there held as follows "All parties to an action whose interests will be affected by a reversal of the judgment appealed from must be made parties to the appellate proceeding." See also Moser v. Board of Trustees, 48 Okl. 224, 149 P 1148, and cases there...