RALLS v. CAYLOR LUMBER CO.

RALLS v. CAYLOR LUMBER CO.
1917 OK 68
162 P. 711
67 Okla. 242
Case Number: 8426
Decided: 01/09/1917
Supreme Court of Oklahoma

RALLS et al.
v.
CAYLOR LUMBER CO.

Syllabus

¶0 Appeal and Error -- Review -- Parties. In an action brought by a subcontractor to recover a personal judgment for building materials furnished a contractor, and to enforce a materialman''s lien for the amount due and unpaid upon the lands, buildings, and appurtenances of the owners, personal judgment was rendered in favor of the subcontracter against the contractor, and a lien adjudged and ordered foreclosed upon the premises. From the judgment the owners prosecuted error without making the contractor a party to the proceedings for review. Held, for the reasons stated in the opinion, that it is unnecessary, to the owner''s right of review, that the contractor be made a party to the proceedings in error.

J. G. Ralls, for plaintiffs in error.
A. A. McDonald and A. M. Works, for defendant in error.

SHARP, C. J.

¶1 In October, 1914, in the district court of Atoka county, the Caylor Lumber Company brought an action to recover a personal judgment of E. W. Steward for the amount of a bill of lumber sold him, and the foreclosure of a materialman''s lien upon certain real estate of Eva A. Ralls and Joseph G. Ralls. Trial being had before a jury, the following verdict was returned in favor of the lumber company:

"We, the jury do on our oaths find for the plaintiff Caylor Lumber Company, and against the defendant E. W. Steward in the sum of $ 1,183.55 and further find a lien in favor of the plaintiff Caylor Lumber Company, and against the defendants Eva A. Rails and Joseph G. Ralls in and to lot 3, block 26, in the city of Atoka, Atoka county. state of Oklahoma, according to the official plat and survey."

¶2 Thereupon the court made and entered its judgment, the pertinent parts being as follows:

"It is therefore considered, ordered, and adjudged by the court that the plaintiff Caylor Lumber Company, a partnership consisting of R. A. Caylor and Floyd Caylor, do have and recover of and from the defendant E. W. Steward the sum and amount of $ 1,183.55, and all its costs in this behalf expended; said principal sum of $ 1,183.55 to bear interest from this 23d day of November, 1915, at the rate of 6 per cent. per annum, and for all of which execution may issue. It is further considered and adjudged by the court that said judgment in the sum and amount of $ 1,183.55, with interest as aforesaid, is a first and valid lien against the property of the defendants Eva A. Ralls and Joseph G. Ralls, said property being described as follows, to wit [description]."

¶3 Motion for a new trial was filed by the defendants Eva A. Rails and Joseph G. Ralls, and, being overruled, they bring the case to this court for a review of the judgment rendered against them. No motion for a new trial or proceedings in error were filed or prosecuted by the defendant Steward. The defendant in error has filed a motion to dismiss the appeal because Steward was not made a party to the proceedings in error. It is not contended that the judgment against the defendants was a joint judgment, the sole propositions urged in support of the motion to dismiss being that the defendant Steward would be adversely affected by a reversal of the cause, and therefore, under the decisions of this court, be is a necessary party to the appeal. Clearly he is not. In Jones v. Balsley & Rogers,

"If this cause be reversed in this court and remanded for a new trial, and, on retrial, judgment should be rendered against the defendants in error enforcing a lien on their properly for the amount of the judgment, how could that affect Balsley & Rogers? They have no interest so far as this record discloses in the lots or buildings on which the lien is sought to be enforced. * * * Can Balsley & Rogers be prejudiced by a lien on the property of the other defendants in any way? We think not."

¶4 The judgment in the above case was in personam as to Balsley & Rogers. It could only have become a judgment in re m as to Muldrow, Bledsoe, and Colbert in the event of a reversal and a new trial in the court below. It was held that the interest of the former was several from that of the latter parties, and that the appeal could be maintained without making the former (the contractors) parties thereto. Likewise, in the present case the appeal can be maintained Without making the contractor a party, if we are to adhere to the opinion in the above case. Steward had no interest in the property of the Rallses, and by failing to appeal from the judgment against him, in effect declared that he was satisfied therewith, and recognized his Mability to the plaintiff company. That the judgment of the trial court may be reversed, and thereby release the property of the plaintiffs in error from the lien of the judgment, does not change Steward''s responsibility under the judgment. If the plaintiffs in error, in order to satisfy the judgment, pay it, or their property is sold for that purpose, they may recover from Steward whatever amount they are forced to pay over and above the contract price of the building. If Steward pays the judgment rendered against him, and is entitled to a balance from the plaintiffs in error on the contract price, there would appear to be nothing in the judgment, or in its reversal, that will impair his rights or prevent a recovery thereon. In Seibert v. First Nat. Bank of Okeene,

¶5 All the Justices concur.