WALCHER v. BURFORD

WALCHER v. BURFORD
1915 OK 153
147 P. 774
47 Okla. 98
Case Number: 6978
Decided: 04/06/1915
Supreme Court of Oklahoma

WALCHER
v.
BURFORD et al.

Syllabus

¶0 APPEAL AND ERROR--Record--Settlement of Case-Mad--Notice. The record must show service of notice of time and place of settlement of case-made on all defendants in error, or waiver of same, and suggestion of amendments, or that all parties were present at the settlement thereof.

Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge.

Action by Maude A. Jones against the Oklahoma Planing Mill & Manufacturing Company, a corporation. Judgment for defendant, and plaintiff brings error. Affirmed.

Gustave A. Erixon, for plaintiff in error.
Erwin & Erwin, for defendants in error.

HARDY, J.

¶1 Plaintiff in error seeks to reverse an order of the district court of Oklahoma county dismissing his action against defendants in error, entered on the 18th day of August, 1914. An order was made allowing 60 days to prepare and serve case-made, ten days additional for amendments, and requiring same to be settled upon five days' notice; and the matter is now presented on motion to dismiss.

¶2 It appears that one Fred Ptak was a defendant in the original suit, and that case-made was served upon him, as shown by his acknowledgment of service; but nowhere in the record does it appear that notice of the time and place of settlement was ever served on him, or that he waived such notice or suggested any amendments, or was present, either in person or by counsel, at the settlement thereof; and, inasmuch as a reversal of the order of dismissal would affect him the same as any other defendant, he was a necessary party and the failure to serve notice of the time and place of settlement upon said defendant is fatal to the jurisdiction of this court. Wood v. Jones et al., 32 Okla. 640, 122 P. 678; Thompson et al. v. Fulton, 29 Okla. 700, 119 P. 244; Harrison v. Penny, 28 Okla. 523, 114 P. 734; Safford et al. v. Turner, 53 Kan. 728, 37 P. 121; Bridge Co. v. Fowler, 55 Kan. 17, 39 P. 727.

¶3 The petition in error is, therefore, dismissed.

¶4 All the Justices concur, except KANE, C. J., not participating.