Opinion
No. 7162
Opinion Filed May 18, 1915.
1. APPEAL AND ERROR — Parties — Joint Judgment. All parties to a joint judgment, either as plaintiffs or defendants in error, must be joined in a proceeding in error in this court to review such judgment.
2. APPEAL AND ERROR — Case-Made — Service — Parties. Where a judgment of the trial court is sought to be reviewed by means of a petition in error with case-made attached, the case-made must be served upon all parties required to be joined, either as plaintiffs or defendants in error, in the proceeding in error.
(Syllabus by the Court.)
Error from County Court, Stephens County; J. W. Marshall, Judge.
Action by Henrietta West against C. L. Grimes and another. Judgment for plaintiff, and defendant named brings error. Dismissed.
R. E. Bowling and Chas. M. Anderson, for plaintiff in error.
Chilion Riley, for defendant in error.
This action was instituted in a justice of the peace court of Stephens county, and from the judgment there rendered appeal was taken to the county court. Trial was had August 14, 1914, resulting in a judgment in favor of plaintiff and against defendants, C. L. Grimes and Frank Goodman. A motion of defendant C. L. Grimes to set aside the judgment, and for a new trial, was filed August 15th and overruled August 20th, from which action of the court said defendant appeals.
Defendant in error, Henrietta West, has filed a motion to dismiss the appeal upon the ground that Frank Goodman, who was a party defendant, has not been served with case-made in this action. An examination of the record discloses that there has been no service of the case-made upon Frank Goodman or his attorney, and the objection to the consideration of the appeal must be sustained, for it is a well-established rule of this court that where a joint judgment has been rendered against two defendants, they must be joined in a proceeding in error in this court, either as plaintiffs or defendants in error, before such judgment can be reviewed; and, where the review is sought by means of a petition in error and case-made, service of the case-made within the time prescribed by statute must be had upon each of them or their attorneys. A failure so to serve the case-made upon a party to a joint judgment who will necessarily be affected by a reversal thereof defeats the jurisdiction of the appellate court and prevents a review of the judgment. Humphrey et al. v. Hunt, 9 Okla. 197, 59 P. 971; American Nat. Bank of McAlester et al. v. Mergenthaler Linotype Co., 31 Okla. 533, 122 P. 507; Appleby et al. v. Dowden, 35 Okla. 707, 132 P. 349; School Dist. No. 29, McClain County, v. First Nat. Bank, 40 Okla. 568, 139 P. 989; Tucker v. Hudson et al., 38 Okla. 790, 134 P. 21; Bowles et al. v. Cooney et al., 45 Okla. 517, 146 P. 221.
For the failure to serve case-made upon defendant in error Frank Goodman the appeal is dismissed.
All the Justices concur.