City of Lawton v. Burnett

Supreme Court of Oklahoma

City of Lawton v. Burnett

1919 OK 100, 179 P. 752, 72 Okla. 205, 1919 Okla. LEXIS 348

CourtSupreme Court of Oklahoma

DecidedApril 1, 1919

Docket8476

StatusPublished

Cited by6 cases

This text of 1919 OK 100 (City of Lawton v. Burnett) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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City of Lawton v. Burnett, 1919 OK 100, 179 P. 752, 72 Okla. 205, 1919 Okla. LEXIS 348 (Okla. 1919).

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Opinion

RAINEY, J.

This action was filed by Tom Burnett,- plaintiff below, in the district court of Comanche county, Okla., against the city of Lawton, a municipal corporation, B.. C. Koger, and John Langwell, defendants below, for damages. The issues were joined and a trial was thereafter had on the 7th day of February, 1916, before a jury, which returned a verdict in favor of the plaintiff ana' against the defendants City of Lawton ana B. C. Kroeger in the sum of $500, and also-returned a verdict against the plaintiff and in favor of the defendant John Langwell. Judgment was entered -on said verdict accordingly.

The defendant in error has filed a motion to dismiss the appeal on the following ground:

“That all the parties to the joint judgment *206 in this cause are not made parties to this proceeding in error, in that the action in the court below was brought by the defendant in error, Tom Burnett, against the city of Lawton, B. C. Koger, and that the said John Langwell recovered a judgment against the defendant in error, and said John Langwell is not a party to this appeal, such facts appearing upon the face of the record at pages 295, 304-808.”

The motion is well taken, and must be Sustained on the authority of the following cases: Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okla. 169, 163 Pac. 517, L. R, A, 1917D, 666; Chickasha Light, Heat & Power Co. v. Bezdicheck, 33 Okla. 688, 126 Pac. 821; Humphrey et al. v. Hunt, 9 Okla. 196, 59 Pac. 971; Board of Com’rs et al. v. Lemley, 23 Okla. 306, 101 Pac. 109; K. C., M. & O. Ry. Co. v. Williams. 33 Okla, 202, 124 Pac. 63; Ft. S. & W. Ry. Co. v. Wilson, 33 Okla. 280, 124 Pac. 948; Denny v. Ostrander, 33 Okla. 622, 127 Pac. 390; Mann et al. v. Mann, 70 Okla. 30, 172 Pac. 777.

We deem it unnecessary to discuss the question further, as the cases cited are directly in point, and the reasons for the rule are stated in the early case of Humphrey et al. v. Hunt, supra, and Chicago, R. I. & P. Ry. Co. v. Austin, supra.

The act of the 1917 Legislature, found in chapter 219, Session Laws of 1917, abolishing summons in error and providing on whom the case-made may be served and the necessary parties to the petition in error, Is not applicable to this case, for the reason that this appeal was filed in this court on the 6th day' of July, 1916, long prior to the passage of said act. It was held jn Mann et al. v. Mann, supra, that said act was not retrospective. See, also, Buckner et al. v. Walton Trust Co., 67 Okla. 55, 168 Pac. 797: Merriett et al. v. Newton et al., 67 Okla. 150, 169 Pac. 488.

The appeal is therefore dismissed.

• HARDY, .,C. J., and KANE HARRISON, and OWEN, JJ., concurring. •. . JOHNSON, J., disqualified and not participating

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RAINEY, J.

This action was filed by Tom Burnett,- plaintiff below, in the district court of Comanche county, Okla., against the city of Lawton, a municipal corporation, B.. C. Koger, and John Langwell, defendants below, for damages. The issues were joined and a trial was thereafter had on the 7th day of February, 1916, before a jury, which returned a verdict in favor of the plaintiff ana' against the defendants City of Lawton ana B. C. Kroeger in the sum of $500, and also-returned a verdict against the plaintiff and in favor of the defendant John Langwell. Judgment was entered -on said verdict accordingly.

The defendant in error has filed a motion to dismiss the appeal on the following ground:

“That all the parties to the joint judgment *206 in this cause are not made parties to this proceeding in error, in that the action in the court below was brought by the defendant in error, Tom Burnett, against the city of Lawton, B. C. Koger, and that the said John Langwell recovered a judgment against the defendant in error, and said John Langwell is not a party to this appeal, such facts appearing upon the face of the record at pages 295, 304-808.”

The motion is well taken, and must be Sustained on the authority of the following cases: Chicago, R. I. & P. Ry. Co. v. Austin, 63 Okla. 169, 163 Pac. 517, L. R, A, 1917D, 666; Chickasha Light, Heat & Power Co. v. Bezdicheck, 33 Okla. 688, 126 Pac. 821; Humphrey et al. v. Hunt, 9 Okla. 196, 59 Pac. 971; Board of Com’rs et al. v. Lemley, 23 Okla. 306, 101 Pac. 109; K. C., M. & O. Ry. Co. v. Williams. 33 Okla, 202, 124 Pac. 63; Ft. S. & W. Ry. Co. v. Wilson, 33 Okla. 280, 124 Pac. 948; Denny v. Ostrander, 33 Okla. 622, 127 Pac. 390; Mann et al. v. Mann, 70 Okla. 30, 172 Pac. 777.

We deem it unnecessary to discuss the question further, as the cases cited are directly in point, and the reasons for the rule are stated in the early case of Humphrey et al. v. Hunt, supra, and Chicago, R. I. & P. Ry. Co. v. Austin, supra.

The act of the 1917 Legislature, found in chapter 219, Session Laws of 1917, abolishing summons in error and providing on whom the case-made may be served and the necessary parties to the petition in error, Is not applicable to this case, for the reason that this appeal was filed in this court on the 6th day' of July, 1916, long prior to the passage of said act. It was held jn Mann et al. v. Mann, supra, that said act was not retrospective. See, also, Buckner et al. v. Walton Trust Co., 67 Okla. 55, 168 Pac. 797: Merriett et al. v. Newton et al., 67 Okla. 150, 169 Pac. 488.

The appeal is therefore dismissed.

• HARDY, .,C. J., and KANE HARRISON, and OWEN, JJ., concurring. •. . JOHNSON, J., disqualified and not participating

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