Tucker v. Hudson
| Decision Date | 03 June 1913 |
| Parties | TUCKER v. HUDSON ET AL. |
| Court | Oklahoma Supreme Court |
Rehearing Denied July 22, 1913.
Syllabus by the Court.
All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed and where a review of the judgment is sought by means of a petition in error and case-made, service of case-made must be had against all parties to the judgment before any question presented by the case-made can be reviewed by this court.
Under section 5629, Comp. Laws 1909, misjoinder of parties defendant is not a ground for demurrer.
Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto urged specially upon that ground, should be overruled.
Whenever the causes of action have been improperly joined, if no objection be taken thereto by demurrer, the defendant waives same.
Error from County Court, Pawnee County; N.E. McNeil, Judge.
Action by Frank Hudson and others against A. W. Tucker. Judgment for plaintiffs, and defendant, Tucker, brings error. Affirmed.
H. A Johnson, of Perry, for plaintiff in error.
W. L Eagleton, of Norman, for defendants in error.
This proceeding in error is prosecuted from a joint judgment against plaintiff in error and defendants in error Arkansas Valley Townsite Company and H. C. Hannah, in favor of defendant in error Frank Hudson for a specific sum of money and for costs. To the petition in error is attached both a case-made and a transcript of the record. The case-made was never served upon defendants in error Arkansas Valley Townsite Company and H. C. Hannah. It is therefore void, and no question which is attempted to be presented by the case-made can be considered. National Surety Co. v. Okla. Presbyterian College for Girls et al., 132 P. 652 (recently decided, but not yet officially reported); State ex rel. Hankins, Co. Atty., v. Holt et al., 34 Okl. 314, 125 P. 460.
The only question attempted to be presented for review upon the transcript is the overruling of the demurrer of plaintiff in error, Tucker, to the petition of defendant in error Frank Hudson in the court below. The grounds for the demurrer urged are misjoinder of parties defendant; but such objection does not constitute a ground for demurrer, and should have been presented by motion to strike out the unnecessary parties. Bourland v. Madill State Bank et al., 32...
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