Wedd v. Gates
| Decision Date | 06 September 1905 |
| Citation | 1905 OK 92,15 Okla. 602,82 P. 808 |
| Parties | JOHN WEDD v. TOLBERT GATES, et al. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL SHOULD BE DISMISSED, WHEN--Parties. Under section 4452 of the Statutes of Oklahoma of 1893, which provides that: "No proceeding for reversing, vacating or modifying judgments of final orders shall be commenced unless within one year after the rendition of the judgment or making of the final order complained of." etc., every necessary party to the appeal must either make a general appearance within the year following the rendition of the judgment or entering of the final order appealed from, or summons must issue within such time and service thereof be had upon the defendants in error. Otherwise no appeal can be had
2. SAME--Statute of Limitations. By the terms of section 3892 of the Statutes of Oklahoma of 1893, an action is deemed to be commenced as to each defendant, at the date of the summons which is served on him; and where a plaintiff in error causes summons to issue on the last day within the year following the date of the final judgment appealed from, but fails to serve it on one of the necessary defendants in error, and also fails to secure service on him within sixty days after the issuance of the first summons (as provided in the same section) the appeal should be dismissed on the ground of defect of parties.
3. SAME-- Jurisdiction Not Conferred by Agreement. Where a party fails to commence an action in the supreme court to reverse, vacate or modify an order or judgment of the district court within one year after such judgment or order was made, the supreme court has no power to review such order or judgment, and jurisdiction to do so cannot be conferred by the agreement of the parties, or by the general appearance of the defendant in error after the expiration of such time.
1. APPEAL--Necessary Parties. One whose rights may be affected by a reversal or modification of a judgment appealed from, is a necessary party in the appellate court.
Error from the District Court of Pawnee County; before Bayard T. Hainer, Trial Judge.
McGuire & Clark, and Dale & Bierer, for plaintiff in error.
A. J. Biddison, and W. L. Eagleton, for defendant in error.
¶1 This action was commenced in the district court of Pawnee county by Tolbert Gates against the appellant, John Wedd, and the other defendants in error, alleging that the defendants had driven certain cattle across the quarantine line, and that they were at the time infected with Texas fever, which was communicated to the cattle of the plaintiff, from the effects of which they sickened and died, to the damage of the plaintiff in the sum of twelve hundred, thirty seven and 50/100 dollars.
¶2 Gates then filed an amended petition, in which he sought to recover against Wedd alone, and the other defendants, who also had cattle in the pasture in which Gates' cattle and the Wedd cattle had been kept. Then each filed his answer and cross petition, and alleged that his cattle had also caught the fever from Wedd's cattle, and prayed for affirmative relief against him. Wedd filed his answer, and in due time a trial was had in which Gates, Adams, Sousley, and Eagleton each recovered judgment against Wedd; and the court decreed that these judgments be a lien against the cattle belonging to Wedd, which it was claimed had communicated this disease to the cattle of the other parties, and that such lien be concurrent and co-ordinate, and that the cattle be sold to satisfy the same. In this judgment and decree the trial court was seeking to give force to the provisions of the quarantine act of 1897. This judgment was entered on April 20th, 1903. The case made was prepared, properly served on the attorneys for all of the other parties, settled by the trial judge, and filed in this court on April 20th, 1904, just one year after the rendition of the judgment. Summons in error was issued and service had as to all of the adverse parties, except Adams, and the return of the officer showed that he could not be found in the county. On January 3rd, 1904, Adams moved to dismiss the appeal because it had not been taken, as to him, within one year (the time allowed by the statutes in which an appeal may be taken) The other defendants moved to dismiss the appeal for failure to file briefs in time, and also because of defect of parties, (Adams not having been served). On August 29th, 1904, Adams and all of the other parties entered into the following agreement:
¶3 It is contended by the appellant...
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In re Water Rights In Big Laramie River
...in the above case the Court found a unity of interest within the meaning of the statute distinguishing the case from that of Wedd v. Gates, 15 Okla. 602; 82 P. 808; a unity of interest must be construed as meaning an similar to that of joint contractors, (36 Cyc. 1119). Constructive service......
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Wells v. Shriver
...75 Okla. 8, 180 P. 958; Phillips v. Dillingham, 44 Okla. 102, 144 P. 363; Dill v. Flesher, 53 Okla. 359, 156 P. 1191; Wedd v. Gates, 15 Okla. 602, 82 P. 808; State Savings Bank of Manchester, Ia., v. Bedden et al., 38 Okla. 444, 134 P. 20; Brown, Administrator, et al. v. Parks et al., 80 Ok......
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In re Big Laramie River
...where the same sections appear. (Thompson v. Wheeler & Wilson Mfg. Co., 29 Kan. 476, which reviews the Ohio decisions; Wedd v. Gates, 15 Okla. 602, 82 P. 808.) refers to the technical character of the defect existing in the summons. If it is intended to invoke Section 4309, Comp. Stats. 191......
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Howard v. Arkansaw
... ... State Savings Bank, etc., v. Bedden et al., 38 Okla. 444, 134 P. 20; Wedd v. Gates, 15 Okla. 602, 82 P. 808; Tishomingo, etc., v. Harris, 28 Okla. 10, 113 P. 713; Fairbanks, Morse & Co. v. Thurmond et al., 31 Okla. 612, 122 ... ...