Opinion
No. 7360
Opinion Filed October 12, 1915. Rehearing Denied January 11, 1916.
APPEAL AND ERROR — Parties — Dismissal. On appeal, all parties to a judgment which is sought to be reversed whose interests will be affected by a reversal of the judgment must either join in the proceedings in error, or be made parties defendant, and be brought into this court by service of summons within the statutory time, and where they do not voluntarily appear, or on motion, the appeal will be dismissed. (Syllabus by the Court.)
Error from Superior Court, Muskogee County; H.C. Thurman, Judge.
Action by E.C. Million against C.L. Steele and others. Judgment for plaintiff, and certain of defendants bring error. Dismissed.
William T. Hutchings, W.T. Wisdom, and Claude L. Steele, for plaintiffs in error.
W.H. Twine, Rosser Cochran, and Andrews Leidke, for defendants in error.
Defendant in error E.C. Million specially appears and files motion to dismiss for the reason that summons in error was not issued and served upon him within the time prescribed by law. Motion for new trial was overruled December 21, 1914, and petition in error filed in this court May 13, 1915. Summons in error was issued on May 13, 1915, which was returned not served. On May 28, 1915, alias summons in error was issued and was returned not served on June 22, 1915. Since the last-named date no further effort towards procuring service upon said defendant in error has been made.
The appeal will be dismissed. In White Lumber Co. v. Beasley et al., 45 Okla. 771, 146 P. 1082, it was said:
"On appeal all parties to a judgment which is sought to be reversed whose interests will be affected by a reversal of the judgment must either join in the proceedings in error or be made parties defendant, and be brought into this court by service of summons within the statutory time, and where they do not voluntarily appear, or on motion, the appeal will be dismissed. Durant et al. v. Munford, 38 Okla. 552, 134 P. 50; School Dist. 39 v. Fisher, 23 Okla. 9, 99 P. 646."
It is so ordered.
All the Justices concur.