Opinion
No. 4397
Opinion Filed May 13, 1913.
APPEAL AND ERROR — Parties. In an action between the bank and M. and M., J. and J. intervened praying judgment against M. and M. upon a promissory note and the foreclosure of a mortgage upon the property involved in the action between the bank and M. and M. M. and M. answered praying affirmative relief against J. and J. Upon the cause coming on for trial. J. and J. dismissed their petition in intervention and M. and M. offered no evidence tending to sustain the allegations upon which they based their claim for affirmative relief and no judgment was rendered in the cause which in any wise affected the controversy between M. and M. and J. and J. Held that, in a proceeding in error by M. and M., J. and J. are not necessary for proper parties.
(Syllabus by the Court.)
Error from District Court, Jackson County; Frank Mathews, Judge.
Action by the Oklahoma State Bank and others against A. J. Miller and another, and R. C. Johnson and another intervened. From a judgment for plaintiff, defendants bring error. Dismissed as to interveners.
T. T. Clark and E. E. Gore, for plaintiffs in error.
Everett Petry, for defendants in error.
The question herein arises upon a motion by the defendants in error, R. C. Johnson and S. H. Johnson partners, to dismiss the appeal, as to them, for the reason that they are not necessary or proper parties thereto. The action originally was one wherein the defendant in error the Oklahoma State Bank was plaintiff and the plaintiffs in error herein were defendants. The movants herein intervened, alleging that they were entitled to judgment against the Millers upon a promissory note and the foreclosure of a mortgage upon the property involved in the suit between the bank and the Millers. Thereafter the Millers answered, claiming affirmative relief against the movants. Upon the cause coming on for trial, the movants dismissed their petition in intervention, and the Millers offered no evidence tending to sustain the allegations upon which they based their claim for affirmative relief, and no judgment was rendered in the cause which in any wise affected the controversy between the Millers and the Johnsons. Under this statement of facts, the Johnsons are neither necessary nor proper parties to a proceeding in error, instituted by the Millers.
Their motion, therefore, to dismiss must be sustained.
All the Justices concur.