Coss v. Sterritt

Opinion by COLLIER, C. (after stating facts as above). The only question here under review is upon the motion to dismiss this appeal. It is positively shown that *449 .this is an appeal from a joint judgment rendered against said Zora Daniel and others, that she was not presented with the case-made, and no notice was given her of the time and place said case-made would be settled and signed, and that she never appeared or waived such notice, nor was she made a party to this appeal, nor was summons in error issued to or served upon her, nor did she waive any of said requirements; her attempt to waive same 18 months after the case-made was settled and signed being abortive. In Southwestern Surety Ins. Co. v. Litty Going et al., 48 Okla. 460, 150 Pac. 488, it is held: “A case-made, settled and signed without service of notice, stating the time and place in which the presiding judge will be asked to settle and sign the same, upon all of ■ the opposite parties, and without their appearance, either in person or by attorney, and without their waiver of such notice, is a nullity, and confers no jurisdiction on this court to decide any question thereunder.” See, also, Moore v. Howard Mer. Co., 40 Okla. 491, 139 Pac. 524. The attempted correction of the failure to present the said Zora Daniel with said case-made, to give her notice of the time and place at which the case-made herein would be signed and settled, she not having waived the same or made an appearance at the signing and settling of said case-made, and of the failure to make her a party 'to this appeal, by the said instrument signed by her and filed in this court, cannot avail to overcome said laches of attorneys for plaintiffs in error and give this court jurisdiction to decide any question involved in this attempted appeal. *450 In American Nat. Bank of McAlester et al. v. Mergenthaler Linotype Co., 31 Okla. 633, 122 Pac. 507, Chief Justice Turner, speaking for the court said: “The judgment being joint, all persons against whom it was rendered and who would necessarily be affected by a reversal must be made parties to this proceeding. Wedd v. Gates et al., 15 Okla. 602, 82 Pac. 808; Strange et al. v. Crismon, 22 Okla. 841, 98 Pac. 937; Weisbender et al. v. School District, 24 Okla. 173, 103 Pac. 639; James S. Hughes, Special Adm’r, v. A. L. Rhodes, 25 Okla. 172, 105 Pac. 650. * * * Being a necessary party to the appeal, he or his attorney should have been served with the case-made or a copy thereof, and, not being so served, we are without jurisdiction to review the judgment complained of. Humphrey v. Hunt, 9 Okla. 196, 59 Pac. 971; Spaulding Manufacturing Co. v. W. H. Dill et al., 25 Okla. 395, 106 Pac. 817. Being jurisdictional, it cannot be waived. Atkins v. Nordyke, 60 Kan. 354, 56 Pac. 533. For this reason the subsequent amendment by leave of the petition in error so as to make Hinds a party, upon which a summons issued for him which was returned indorsed: T, W. G. D. Hinds, the within-named defendant in error, hereby accept service of the within summons in error and do hereby waive formal service of said summons in error upon me by the sheriff, and I do hereby waive all formalities of making and serving case-made upon me, and do hereby consent that the cause may be submitted for trial in the Supreme Court upon petition in error filed by plaintiffs in error and upon original pleadings and other records of the lower court and the evidence taken in the lower court in said cause, all of which are contained in the case-made, and agree that the case may be submitted upon said case-made now filed. W. G. D. Hinds, Defendant in Error. At Muskogee, November 5th, 1909’ — availeth nothing.” In Kansas City, M. & O. Ry. Co. v. Williams, 33 Okla. 202, 124 Pac. 63, the same doctrine is announced as in *451 the American National Bank of McAlester et al. v. Mergenthaler Linotype Co., supra, wherein it is said: “And this too, although, as here, after the time for the service of the case-made on McGee, plaintiffs in error have amended their petition in error by making McGee a party defendant in error in this court, and he has entered his appearance and waived service of the case-made, for the reason that a failure to serve the case-made upon McGee within the time allowed defeats the jurisdiction of this court and prevents a review of the judgment, although he subsequently appeared in this court and waived .service of the case-made.” It follows that this appeal should be dismissed. By the Court: It is so ordered.