Boyd v. Robinson , 47 Okla. 591 ( 1915 )

August 29, 1913, plaintiff, Lennie Robinson, filed his petition against J. R. Green, P. B. Austin, G. W. P. Brown, Polly Boyd, Laura Lock, Willard Brown, and D. J. Allen or Wofford, seeking to quiet title to certain real estate in J. R. Green, in order that such property might be subjected to an execution on a judgment in favor of plaintiff and against said Green. The action was dismissed without prejudice as to all the defendants, save Polly Boyd and J. R. Green, and on December 12th thereafter, in their absence, judgment was duly rendered against them in favor of plaintiff. On December 20th following, defendant Polly Boyd filed her motion to vacate and set aside said judgment so rendered, which motion, after a hearing had thereon, was denied on March 3, 1914, and said Polly Boyd appeals.

A motion to dismiss the appeal has been filed; one of the grounds thereof being that J. R. Green is a necessary party to the appeal, and, not having been served with case-made, is not properly before the court. Green, as we have seen, was a codefendant in the case below. The judgment against him and Polly Boyd determined that certain conveyances made by Green to one Austin, and by the latter to Boyd, were fraudulent and void, and quieted the title in Green. A judgment favorable to Boyd would, therefore, necessarily affect Green's title, while a judgment against Boyd would tend to establish a liability against Green, arising out of his warranty of title. Being parties to the conveyances attacked, and by the decree vacated, both Green and Boyd were interested in the ultimate decision of the case, and hence are necessary parties to the proceedings for review.Humphrey et al. v. Hunt, 9 Okla. 196, 59 P. 971; May et al.v. Fitzpatrick et al., 35 Okla. 45, 127 P. 702; Crow v.Hardridge, 43 Okla. 463 143 P. 183. No effort was made by Green to procure a new trial, or to vacate the judgment rendered against him, or to take the steps necessary to an appeal therefrom. Polly Boyd asked and was given 60 days' time in which to prepare and serve a case-made for appeal in her own behalf. The case-made prepared by Green's co-defendant was never served upon him, nor was service thereof waived, amendments suggested, or any form of appearance entered by him in the settlement of case-made on May 2d.

While Green's name appears as a co-plaintiff in error in the petition in error filed in this court, such fact alone does not give this court jurisdiction to review the judgment against him, and, he not having properly been made a party to the appeal, the proceedings in error prosecuted by the plaintiff in error Polly Boyd must be dismissed. Thompson et al. v. Fulton,29 Okla. 700, 119 P. 244; Kansas City, M. O. R. Co. v.Williams, 33 Okla. 202, 124 P. 63; American Nat. Bank v.Linotype Co., 31 Okla. 533, 122 P. 507; Bowles et al. v.Cooney et al., 45 Okla. 517, 146 P. 221.

All the Justices concur.