Johnson v. Stoval

Opinion by HARRISON, C. This action was begun in the justice court of Kay county by C. A. Johnson againsr Guy F. Stoval for the sum of $92.30. At the beginning of the action Johnson also instituted garnishment proceedings against the Newkirk Oil Company and E. E. Faris, claiming in the affidavit of garnishment that E. E. Faris had in his possession and under-his control certain shares in the Newkirk Oil Company belonging to defendant Guy-F. Stoval. Faris answered the garnishment summons, claiming that he had no money or properties of any kind in his posesssion or under his control belonging to Stoval; that the four and one-half- shares of Newkirk Oil Company’s stock which- had been issued to Stoval had been purchased by him, Faris, and that the same was his own individual property. Plaintiff excepted to this answer. Faris hied an interplea, alleging title to the shares of stock in question, and from the judgment of the justice court that such shares of stock were the property of Stoval, Faris appealed to the county court. The transcript of the justice’s docket, together with the appeal bond, which' had been approved by the justice, were certified to the county court and docketed therein. Afterwards, on April 5, 1910, the plaintiff, Johnson, and his attorneys, and the in-terpleader, Faris, and his attorneys, appeared in the county court and tried the cause to a jury. The jury, being unable to agree upon a verdict, were discharged from further consideration and the cause continued. Thereafter the plaintiff, Johnson, filed a motion to dismiss the appeal on the alleged ground that the principal defendant, Guy F. Stoval, had not been made a party to the appeal. The ground upon which this allegation *445 was based was that- the interpleader’s appeal bond was made payable to C. A. Johnson, plaintiff, without naming Guy F. Stoval, as an obligee. The motion to dismiss was overruled, and Johnson, the original plaintiff, appeals to this court. In the former opinion, we followed Barnard v. Douglass-Whaley Grocery Co., 31 Okla. 124, 120 Pac. 563, wherein the court held: “A judgment was rendered, against two defendants in a cause tried before a justice of the peace. One of the defendants appealed to the county court in his own name, without joining the other. The appeal was dismissed by the county court, upon the ground that the county court was without jurisdiction to entertain the appeal, because the, appellant did not make his codefendant a party thereto. Held reversible error, overruling Brown v. Yates, 24 Okla. 231, 103 Pac. 667.” In this case the court overruled the opinion in Brown v. Yates because it seemed to follow the case of Baldwin v. White (Tex. Civ. App.) 26 S. W. 455, which had been overruled in Slayton & Co. v. Horsey, 97 Tex. 341, 78 S. W. 919, as being in conflict with the statute arid great weight of authority. The opinion of this court in the Barnard case, supra, seems to have been based principally upon the fact that the defendant who was not made a party to the appeal .had no interest in the controversy adverse to the interests of the defendant who took the appeal, and whatever may have been the facts from which the court reached this conclusion, the facts in the case at bar bring it within the rule announced in the Barnard case. For it appears from the record that Stoval, the principal deféndant, made no appearance in the justice court, and failed to plead either to the claim of the plaintiff, Johnson, or the claim of the interpleader, Faris, and asserted no claim whatever to the shares of stock in question.- Hence, so far as the record goes, Stoval, the principal defendant, had no interest in such shares adverse to the claim of Faris. ' Therefore the former opinion affirming the judgment of the court in overruling the motion1 to dismiss the appeal is adhered to. The former opinion is hereby with *446 drawn, this one filed in its stead, and the judgment of the county court affirmed. By the Court: It is so ordered.