Watkoche v. Schultz , 63 Okla. 44 ( 1916 )

Defendant in error Lucineal Schultz brought suit in the district court of Okfuskee county against plaintiffs in error and defendants in error Selvidge, Owens, Gayer, and Caldwell, to clear her title to certain lands situated in said county. Thereupon defendants in error above named filed disclaimers, and plaintiffs in error filed answers and cross-petitions. Upon trial, judgment was for plaintiff decreeing to her the fee-simple title to said lands and cancelling and removing as a cloud upon her title the conveyances by which plaintiffs in error held, and they bring the case here.

Motion for a new trial was overruled December 1, 1915. Petition in error with case-made attached was filed in this court on May 26, 1916, and summons in error issued upon that date, which was never served and returned. On July 31, 1916, alias summons in error was issued and served on said defendant in error Schultz on August 4, 1916, and she files motion to dismiss this proceeding because summons in error was not issued and served upon her within the time allowed by law for such service.

Service of summons in error was not had within the time prescribed, but it is urged that the cause was commenced by filing in this court a petition in error with case-made attached and a waiver of service of summons in error by all the, defendants in error except Schultz, and that the action was then pending as to Schultz and the time for such service thereby extended, because said defendants in error are so united in interest with defendant in error Schultz as to bring the case within the meaning of section 4659, Rev. Laws 1910. That portion of the section applicable here is as follows:

"An action shall be deemed commenced, within the meaning of this article, as to each defendant, at the date of the summons which is served on him, or on a codefendant, who is a joint contractor or otherwise united in interest with him."

Schultz was plaintiff below and had no unity of interest with any of said defendants in error in the subject-matter of this litigation, but on the contrary was seeking to have her title quieted as against any interest which they might have had. They disclaimed any such interest, and therefore could not be in any wise affected by a reversal of the judgment rendered against plaintiffs in error. De Bolt v. Farmers' Ex. Bank, 46 Okla. 258,148 P. 830; Seibert v. Bank, 25 Okla. 778, 148 P. 628; Love v. Cavett, 26 Okla. 179, 109 P. 553; Voris v. Robbins,52 Okla. 671, 153 P. 120; Charvoz v. New State Bank,54 Okla. 255, 153 P. 849; Gen. Elec. Co. v. Sapulpa I. R. Co.,49 Okla. 376, 153 P. 189.

The motion to dismiss, is therefore sustained and the cause dismissed.

All the Justices concur.