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1911 OK 428
119 P. 963
31 Okla. 19
Case Number: 2453
Decided: 11/14/1911
Supreme Court of Oklahoma

MULLEN et al.


¶0 APPEAL AND ERROR--Defect in Parties--Dismissal. Dismissed for failure to join necessary parties, upon the authority of Strange et al. v. Crimson, 22 Okla. 841, 98 P. 937, and other cases cited.

Error from District Court, Stephens County; Frank M. Bailey, Judge.

Action by J. S. Mullen and others against S. F. Saunders and others. Judgment for plaintiffs, and defendants bring error. Dismissed.

Gilbert & Bond, for plaintiffs in error
H. A. Ledbetter, for defendants in error


¶1 This cause comes on to be heard upon the motion of defendants in error to dismiss the appeal, based upon several grounds, one of which, at least, we think is well taken. The third ground for dismissal is that:

"This court is without jurisdiction to entertain this appeal, for the reason that all the parties against whom judgment was rendered in the trial court have not been made party plaintiffs in error on appeal."

¶2 The record shows that judgment was rendered below against S. F. Saunders, A. O. Mallory, Cassie Pritchard, D. L. Brewer, T. Maynard, J. H. Jennings, and Newt Singleton, O. M. Nichols, N. B. Woolsey, R. E. Farris, Henry Pruitt, and W. N. Brown, and that Saunders, Mallory, Pritchard, Brewer, Maynard, Jennings, and Singleton joined as plaintiffs in error, making Mullen and Robberson defendants in error, eliminating as parties in this court Nichols, Woolsey, Farris, Pruitt, and Brown. The point is made by counsel for plaintiffs in error that as part of the judgment debtors who are omitted as parties were merely sureties they could not be affected by a reversal of the judgment; and therefore the appeal ought not to be dismissed on that ground.

¶3 This contention cannot be sustained. The judgment is joint in form, and it is impossible to distinguish the case at bar from Strange et al. v. Crismon, 22 Okla. 841, 98 P. 937, where the parties omitted from the record were sureties, and the appeal was dismissed upon the authority of a long line of Oklahoma Territory cases. This court has followed Strange et al. v. Crismon, supra, in Weisbender et al. v. School District No. 6 Caddo County, 24 Okla. 173, 103 P. 639; John v. Paulin et al., 24 Okla. 636, 104 P. 365; Hughes v. Rhodes, 25 Okla. 172, 105 P. 650; Seibert v. First National Bank of Okeene, 25 Okla. 778, 108 P. 628; Continental Gin Co. v. Huff et al., 25 Okla. 798, 108 P. 369; First National Bank of Holdenville v. Jacobs, 26 Okla. 840, 111 P. 303; Vaught v. Miners' Bank of Joplin, 27 Okla. 100, 111 P. 214.

¶4 The appeal must be dismissed.

¶5 All the Justices concur.