White Lumber Co. v. Beasley

PER CURIAM. In an action commenced in the superior court of Custer county by C. K. Harris -against W. W. Beasley and S. R. Hawks, the Mid-Continent Life Insurance Company and several others, the object of which was to establish and foreclose a mechanic’s lien on certain real estate the property of Beasley and Hawks, >the White Lumber Company, plaintiff in error, intervened and set up their claim against Beasley and Hawks in the sum of $2,250, and .prayed the court to- decree their lien to be prior to the liens of Harris, the Mid-Continent Company, and the - others, who were made parties defendant. The Mid-Continent Company thereupon filed its answer -and cross-petition, wherein it claimed a mortgage for $14,000 on said property, and asked that the -same be declared <a prior lien upon the property and foreclosed. On the/ trial of the cause, the ju-ry returned a verdict in favor of the White Lumber Company for $606.24, and the court, in deciding the priority of the liens, found that of the White Lumber Company to be prior’ to the lien of the Mid-Continent Company, and .accordingly, in rendering judgment, the ■court reduced the claim of the White Lumber Company from $2,250 to $606.24, and declared their lien to be prior to the liens of all others. From this judgment reducing -the amount of their claim the White Lumber Company brings the case here, making •all parties in interest defendants in error. The case is now before *773 us on motion, to dismiss for the reason that summons in error has not been served on the Mid-Continent Company, a. necessary party to this appeal, nor has it waived service of summons or entered a general appearance. The judgment in this case was entered on April 24, 1913. The petition in error was filed in this court on May 29, 1913. Thei records fail to disclose service of summons in error, a waiver of service, or a general appearance entered by tlie Mid-Continent' Company. Sess. Laws 1910-11, c. 18, p. 35, provides: “All proceedings for reversing, vacating or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order complained of. * * *” Construing the above section with section 4659, Rev. Laws 1910, this court has held that, where a summons in error has ■been issued within 'the 6-month period, and service has not been ■obtained, the plaintiff in error may have 60 days from the issuance of the first summons in which to faithfully, properly, and diligently follow up liis attempt to secure service. Durant v. Munford, 38 Okla. 552, 134 Pac. 50. But in this case the statutory period for service of summons has long since expired. As all the parties- to- the judgment sought to- he reversed whose interest will be affected by >a reversal of the judgment have not joined in the proceedings in error or been brought into this court :as panties -defendant by service of summons, or waived the same, or entered a general appearance, the appeal will he dis.mdssed. Hawkins v. Hawkins, 35 Okla. 641, 130 Pac. 926. It is- so- ordered. All the Justices concur.