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Tucker v. Hudson

TUCKER v. HUDSON Et Al.

Tucker v. Hudson, 1913 OK 371, 134 P. 21
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Court
Supreme Court of Oklahoma · State Highest Courts
Decided
June 3, 1913
Docket
No. 2673
Judges
Hayes
Citations
134 P. 211913 OK 37138 Okla. 7901913 Okla. LEXIS 439
Disposition
Affirmed.
Syllabus
1. APPEAL AND ERROR — Parties—Service of Case-Made. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of case-made must be had against all parties to the judgment before any question presented by the case-made can be reviewed by this court. 2. PARTIES — Misjoinder — Demurrer. Under section 5629, Comp. Laws 1909 (Rev. Laws 1910, sec. 4740), misjoinder of parties defendant is not a ground for demurrer. 3. LIMITATION OF ACTIONS — Demurrer. Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto, urged specially upon that ground, should be overruled. 4. PLEADING — -Misjoinder of Causes —1 Waiver of Objections. Whenever the causes of action have been improperly joined, if no objection be taken thereto by demurrer, the defendant waives same. (Syllabus by the Court.)
Summary
Error from County Court, Pawnee County; N. E. McNeil, Judge. Action by Frank Hudson and others against A. W. Tucker. Judgment for plaintiff, and defendant Tucker brings error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Hayes

HAYES, C. J.

This proceeding in error is prosecuted from a joint judgment against plaintiff in error and defendants in error, Arkansas Valley Townsite Company and H. C. Hannah, in favor of defendant in error Frank Hudson for a specific sum of money and for costs. To the petition in error is attached both a ease-made and a transcript of the record. The case-made was never served upon defendants in error Arkansas Valley Townsite Company and H. C. Hannah. It is therefore void, and no question which is attempted to be presented by the case-made can be considered.

National Surety Co. v. Okla. Presbyterian College for Girls et al., ante, 132 Pac. 652 .;

State ex rel. Hankins, Co. Atty., v. Holt et al., 34 Okla. 314 , 125 Pac. 460 .

The only question attempted to be presented for review upon the transcript is the overruling, of the demurrer of plaintiff in error, Tucker, to the petition of defendant in error, Frank Hirdson, in the court below. The grounds for the demurrer urged are misjoinder of parties defendant; but such objection does not constitute a ground for demurrer, and should have been presented by motion to strike out the unnecessary parties.

Bourland v. Madill State Bank et al., 32 Okla. 761 , 124 Pac. 314 .

It is urged that the petition does not state facts sufficient to constitute a :cause of action, because.'the action is barred by the statute of limitation; but the petition does not disclose upon its .face that the action is barred by the statute of limitation, and it is only when such facts appear upon *792 the face of the petition that this defense may be presented by urging same in a demurrer upon that ground.

B

etz v. Wilson, 17 Okla. 383 , 87 Pac. 844 .

It is also urged in this court that there is a misjoinder of causes of action. Whatever merit this objection may have in fact, plaintiff in error cannot avail himself of it here, for he failed to set up such objection as a ground of demurrer to the petition in the. court below,, and this omission constitutes a waiver of this alleged defect in the petition. Section 4742, Rev. Laws 1910;

Woodman v. Davis, 32 Kan. 344 , 4 Pac. 262 .

All other errors urged are such only as can be presented upon a case-made. ■ Since no error requiring a reversal is presented, the judgment of the trial court is affirmed.

All the Justices concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 13 cases

View all citing references →
1915: 21916: 31917: 11926: 11930: 11933: 11935: 11938: 11949: 11950: 119152026peak 1916 · 3

Relies on it most ⓘ

  1. Meshek v. Cordes1933 OK 345, 22 P.2d 921
  2. United States Fidelity & Guaranty Co. v. Fidelity Trust Co.1915 OK 946, 153 P. 195
  3. Barton v. Harmon1950 OK 187, 221 P.2d 656
  4. Okmulgee Supply Co. v. Rotman1930 OK 341, 291 P. 1
  5. Lindsay v. Chicago, R. I. & P. Ry. Co.1916 OK 291, 155 P. 1173
  6. Bowyer v. Boss Tweed-Clipper Gold Mines, Inc.79 P.2d 713 (Wash. 1938)

Most recent

  1. Barton v. Harmon1950 OK 187, 221 P.2d 656
  2. Murray v. Teape1949 OK 254, 211 P.2d 1012
  3. Bowyer v. Boss Tweed-Clipper Gold Mines, Inc.79 P.2d 713 (Wash. 1938)
  4. Liberty Nat. Bank of Weatherford v. Brommer1935 OK 533, 45 P.2d 85
  5. Meshek v. Cordes1933 OK 345, 22 P.2d 921
  6. Okmulgee Supply Co. v. Rotman1930 OK 341, 291 P. 1

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 5

DepthCaseCited by
Betz v. Wilson, 1906 OK 75, 87 P. 844 18
State ex rel. Hankins, Co. v. Holt, 1912 OK 506, 125 P. 460 8
Bourland v. Madill State Bank, 1912 OK 330, 124 P. 314 4
Nat'l Sur. Co. v. Okla. Presbyterian Coll. for Girls, 1913 OK 292, 132 P. 652 20
Woodman v. Davis, 32 Kan. 344 (1884) 19

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