Cook v. State

WILLIAMS,’J. Counsel for the state of Oklahoma moves' to “strike the case-made from the files and dismiss the appeal and petition in error,” on the ground (1) that the case-made was neither served on James Kanard, one of the defendants in error, nor was he present at the presentation, signing, and settling of the same; nor was the presentation, signing, and settling thereof waived by him; nor did he have notice thereof; (2) that notice of the presentation, signing, and settling of the case-made was neither served on the defendant in error James Kanard or his attorney, nor was notice thereof waived by him or his attorney. The judgment sought to be reviewed by this proceeding is a joint one, the same, however, having been rendered against James Kanard by default; the other defendants, Frederick B. Severs and Molleanna Snakaya, plaintiffs in error, having defended in the lower court. It was essential that the said James Kanard be either joined as a plaintiff or defendant in error. May et al. v. Fitzpatrick et al., ante, 127 Pac. 702, and authorities therein cited. If the judgment of the trial court was to be reviewed by means of a petition in error with case-made attached, the same should have been served upon James Kanard. Thompson v. Fulton, 29 Okla. 700, 119 Pac. 244; Price v. Covington, 29 Okla. 854, 119 Pac. 626. [655] The fact that the joint judgment against Frederick B. Severs, Molleanna Snakaya, and James Kanard was rendered as to the baid Kanard by default does not change' the ride. Jones v. Balsley & Rogers et al., 25 Okla. 344, 106 Pac. 830, 138 Am. St. Rep. 921. Such rule obtained in Kansas, whence our statute was taken (Atlantic Trust Co. et al. v. Prescott et al., 5 Kan. App. 172, 48 Pac. 926; Paper Co. v. Hentig, 31 Kan. 322, 1 Pac. 529), until the same was changed by statute. Jones v. Balsley & Rogers et al., supra. The appeal must be dismissed. All the Justices concur.