Kolp v. Parsons

Opinion by DEVEREUX, C. (after stating the facts as above). The dismissal of the petition by the plaintiffs as against the railroad company was filed after the cross-petition and could not affect the rights of the defendant, if he hkd any, as set out in the cross-petition. Rev. Laws 1910, section 5126; Brown v. Massey, 19 Okla. 482, 92 Pac. 246. The question then is presented as to whether the railroad company is a necessary party on this appeal, and this depends upon whether the interest of the railroad company would be affected by a reversal of the judgment. Weisbender v. School Dist. No. 6, Caddo County, 24 Okla. 173, 103 Pac. 639; Humphrey v. Hunt, 9 Okla. 196, 59 Pac. 971. We think the railroad company was a necessary party, and that it is directly affected by the result of this *375 appeal. Parsons alleges in his cross-petition that he caused the corn to be loaded in the cars of the railroad company, and that the bills of lading showed that they contained the amount of corn which he claims, and which the plaintiffs in error claim was wrong. It is true that the court struck this cross-petition from the files, but exception to this ruling was duly saved, and the question is still in the record. It was not necessary for Parsons to appeal from this action of the court, for the judgment and verdict in his favor gave him all that he asked. If, however, we should reverse this judgment, and on a new trial it should appear that the corn was short when' it arrived at its destination, the question would still be in the record whether the court erred in striking the cross-petition from the files, and, on appeal from the judgment on the sécond trial, this question would be directly presented, and, if the court should be of the opinion that there was error in striking the cross-petition from the, files, a trial would result between Parsons and the railroad company as to whether he had delivered to the railroad company the amount of corn as claimed by him. The railroad company is therefore directly interested In this appeal, for a new trial might result in a judgment against it, or, at least, litigation between it and Parsons as to whether his cross-petition was rightfully stricken, and, should it be eventually decided that there was error in striking the cross-petition, obviously the railroad company would be interested in the litigation, because, if Parson should establish the facts alleged in his cross-petition, it would be liable to him for the amount of shortage which would be found. The rule is too well settled in this state to require a' citation of authority, other than those we have made above, that one whose *376 rights may be affected by a reversal of the judgment is a necessary party in this court. We therefore recommend that this appeal be dismissed. By the Court: It is so ordered.