Walton v. Williams

• Decision Date: 30 July 1897
• Citation: Walton v. Williams, 49 P. 1022, 5 Okla. 642, 1897 OK 113 (Okla. 1897)
• Parties: WALTON et al. v. WILLIAMS et al.
• Court: Oklahoma Supreme Court

49 P. 1022

5 Okla. 642, 1897 OK 113

WALTON et al. v. WILLIAMS et al.

Supreme Court of Oklahoma

July 30, 1897

Syllabus by the Court.

1. A summons in error is not required to be issued and served within 60 days after the petition in error is filed in this court. It is required that the appeal shall be taken and perfected (which includes the issue of summons in error) within one year from the rendition of the judgment appealed from.

2. The transcript from a probate court must be certified to by the probate judge, and not by the clerk. There is no clerk of a probate court in the sense that there is a clerk of the district court. The act authorizing the probate judge to appoint a clerk is permissive merely, and there may or there may not be a clerk of a probate court, at the option of the judge of said court; and when one is appointed the judge is not disqualified or excused from performing any act or duty which by law he might perform if no clerk had been appointed.

3. In an action by sureties against their principal it is not necessary that the petition should allege that the sureties had settled or paid the debt for which they were bound by their obligation as sureties. Under section 546 of our Code of Civil Procedure, a surety may maintain an action against his principal to obtain indemnity against a debt or obligation for which he is bound before it is due, and without having first paid or satisfied the same, whenever any of the grounds exist upon which an order of attachment may issue.

4. A court has no authority, upon dismissing an action wherein a receiver has been appointed to tax, as costs in the action against the plaintiffs, the costs and expenses of running the business placed in the receiver's hands, or for clerk hire, rent, or for any unpaid allowance to the receiver. These are not items for taxation as costs, but must be recovered, if at all, in an action for that purpose, and where an issue may be framed and tried as to the amount and justness of such items; and such items only as the law fixes and designates as costs can be taxed as costs.

Error from probate court, Grant county.

Action by P. T. Walton and others against M. R. Williams and another. From a judgment for defendants, plaintiffs bring error. Reversed.

A. M Mackay, for plaintiffs in error.

Samuel Weston, for defendants in error.

TARSNEY J.

This case comes to this court upon petition in error upon a transcript of the record of the probate court of Grant county. There is pending a motion by defendants in error to dismiss the appeal. There is no merit in either cause assigned therefor. Whether plaintiffs in error caused to be issued from this court within 60 days, or any other time from the filing of their petition in error, a summons in error, is immaterial, provided the summons in error was issued, and the appeal perfected, within one year from the rendition of the judgment appealed from. The transcript need not be certified by the clerk of the probate court. There is no clerk of the probate court in the sense that there is a clerk of a district court. The law does not require that there shall be a clerk of a probate court. The provision in the Session Laws of 1895 (Laws 1895, 102) that "the probate judge may be permitted to appoint a clerk, who may issue process and perform such other acts ministerial in character as are performed by the clerk of the district court," does not take away the authority of the probate judge to certify to transcripts, or do any other act which he might lawfully do or that was his duty to do if such act had not been passed. It was a mere permissive act authorizing the probate judge to have the assistance of a clerk where the business of the court required it, and judges of probate may or may not appoint such clerks, at their option. The motion to dismiss is not sustained.

2. It appears from this record that M. R. Williams and George Blake were the agents at Pond Creek for the Pabst Brewing Company of Milwaukee, Wis.; that they gave a bond to the brewing company for the faithful performance of their duties; that plaintiffs in error and various other parties became sureties upon said bond for Williams and Blake. Plaintiffs in error, without joining the other sureties on said bond as plaintiffs, commenced this action in the probate ...