Tupelo Townsite Co. v. Cook
| Decision Date | 16 November 1915 |
| Docket Number | 5102. |
| Citation | 153 P. 164,52 Okla. 703,1915 OK 925 |
| Parties | TUPELO TOWNSITE CO. v. COOK ET AL. [a1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
All parties to a joint judgment, who appear from the record to have a substantial interest in sustaining or reversing the judgment, order and decree of the trial court, or whose interests might be effected by a reversal, and new trial in the lower court, are necessary parties to an appeal, and this is not a question resting in the discretion of the appellate court, but is a fundamental question of jurisdiction, and where such parties are not brought into this court, either as plaintiffs or defendants in error, the appeal must be dismissed for want of jurisdiction.
Where a joint judgment and decree is rendered against four parties and the case-made is not served upon three of them, and they are not present, and have no notice of the signing and settling of the case-made, and not made parties to the appeal in any way or manner, the appeal must be dismissed for want of jurisdiction.
Commissioners' Opinion, Division No. 4. Error from District Court, Coal County; Jesse M. Hatchett, Judge.
Action by V. S. Cook against the Tupelo Townsite Company and others. Judgment for plaintiff, and the defendant named brings error. Dismissed.
See also, 43 Okl. 199, 141 P. 1167.
Fooshee & Brunson, of Coalgate, for plaintiff in error.
A. T West, of Coalgate, and Wimbish & Duncan, of Ada, for defendant in error.
This case comes from the district court of Coal county and was brought by V. S. Cook, one of the defendants in error herein to recover judgment on a promissory note, dated February 14 1911, and for foreclosure of mortgage of same date. The note was signed by the Tupelo Townsite Company, a corporation, as principal, and Ed King and C. I. Brewer as sureties, and the mortgage was on certain lands in sections 35 and 36 in Twp. 2, R. 8 E., in that county, signed by the Tupelo Townsite Company. The amount claimed was $5,395, with interest at 10 per cent. per annum from date, and attorney's fees.
The prayer of the petition is as follows:
"Plaintiff prays that defendants be cited to answer this petition and upon final hearing he have judgment against defendants Tupelo Townsite Company, Ed King, and C. I. Brewer, and each of them, for the principal sum of $5,395, the face of said note, together with interest thereon from date of said note until date, amounting to $741.88, and attorney's fee as provided in said note, amounting to $613.68, amounting in all to $6,750.56, and for his costs of this action, and for a judgment foreclosing the lien of said plaintiff on said property, to wit: The S.W. 1/4 and W. 1/2 of S.E. 1/4 of Sec. 36, T. 2 N., R. 8 E.; N.W. 1/4 of the N.E. 1/4, W. 1/2 of the N.E. 1/4 of N.E. 1/4, N. 1/2 of the S.W. 1/4 of the N.E. 1/4, all in section 35, T. 2 N., R. 8 E., except block 95--and for judgment quieting plaintiff's title and lien on said above-described premises and forever barring all of said defendants, J. E. Chriss, C. I. Brewer, R. E. Calloway, Ed King, George N. Gibbs, S. B. Brooks, Wiley W. Lowrey and W. L. Rucker, and Tupelo Townsite Company, and each of them from any lien, estate, interest, or title thereto, and that said mortgage premises be ordered to be sold to satisfy said judgment, and for such other, further, and special relief as plaintiff may be entitled."
Defendants were apparently served as required by law. All the defendants defaulted except Wiley W. Lowrey and S. B. Brooks, each of whom answered by general denial, and filed cross petitions.
The defendant Wiley W. Lowrey, in his cross-petition alleges, in substance, that on the 30th day of March, 1911, he entered into a written contract with the defendant C. M. Witter, for the purchase of the lands in sections 35 and 36 described in plaintiff's petition and mortgage, and 528 town lots in the town of Tupelo, upon which contract he paid to said Witter the sum of $1,000 and agreed to pay the further sum of $12,000 upon delivery of a good and perfect title thereto, and that said defendant Witter had wholly failed to convey said property as agreed, whereby said cross-petitioner claimed a lien on each and all of said property for the sum of $1,000 and interest, and for which he prayed judgment and decree of foreclosure as follows:
"This defendant prays that none of the parties hereto take anything whatever as against him by reason of this suit or have any liens adjudged in their favor prior to the lien of this defendant against any of the premises above described, and that he have and recover of and from the defendants C. M. Witter and Tupelo Townsite Company, a corporation, the sum of $1,000 with 6 per cent. interest thereon from March 24, 1911, until paid, and his costs herein expended and that he be adjudged to have a lien upon the premises above described to secure the payment of said sum, and that said premises be ordered sold according to law, and that from the proceeds of said sale payment be made, first, on the cost of said sale and this action; and, second on the judgment of defendant herein; and, third, that the surplus, if any, be paid out according to the order of this court."
The defendant S. B. Brooks in his cross-petition alleges in substance, that on the 25th day of April, 1911, the Tupelo Townsite Company, a corporation, made and delivered to this defendant its promissory note for $3,015, with interest, and that said note was duly indorsed by defendant C. M. Witter, whereby the defendants Tupelo Townsite Company and C. M. Witter became indebted to this defendant in the sum specified. That said note is long past due and not paid. That at the same time and place and as a part of the same transaction the defendant Tupelo Townsite Company, for the purpose of securing said note, mortgaged to this defendant the following described real estate. The mortgages include the lands in sections 35 and 36 described in plaintiff's petition, and a large number of lots and blocks in the town of Tupelo, covered by defendant Lowrey's contract, but not included in plaintiff's mortgage. The petition alleges a breach of the mortgage contract, and prays for judgment and foreclosure of mortgage as follows:
These mortgages and liens were recorded in the order as follows: Cook's mortgage on February 11, 1911, at 2:30 p. m.; Lowrey's contract May 8, 1910, 10:40 a. m. The record does not appear to be certain as to when the Brook's mortgages were filed for record.
Demurrers were filed to the petition and cross-petitions and overruled and exceptions saved. Answers and replies filed and issues duly joined. Trial was had, and judgment and decrees rendered as follows:
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