(dissenting).
I would join unhesitatingly and fully in the dissent of Mr. Vice Chief Justice HALLEY if, in my opinion, this Court has jurisdiction of this appeal. However, my belief is, it does not.
In the case of Application of Central Oklahoma Milk Producers Ass’n., Okl., 312 P.2d 500, this Court held that, before passing upon the merits, it should first find it has jurisdiction of an appeal, whether the question is raised by a party or not. See also the many cases set forth in 2 West’s Oklahoma Digest, Appeal and Error, *1011And, Video Independent Theatres, Inc., v. Walker, Okl., 308 P.2d 958.
The trial court rendered its judgment against plaintiffs therein, plaintiffs in error here, on October 13, 1961. They gave no notice of appeal then nor within ten days thereafter as required by 12 O.S.1961 § 954. They simply contented themselves with excepting to the judgment, filing their motion for new trial and later, twenty-one days after rendition of the judgment on November 3, 1961, giving notice of appeal from the overruling of the., said motion.
Such statute, 12 O.S.1961 § 954, provides that the party desiring to appeal shall give notice in open court, either at the time judgment is rendered or within 10 days thereafter, of his intention to appeal to the Supreme Court. The requirements of that statute are mandatory.
See Kershaw v. Board of Com’rs of Muskogee County, 135 Okl. 302, 275 P. 621. In that case we held:
“Where a party desiring to appeal fails to give notice in open court, either at the time the judgment appealed from is rendered or within 10 days thereafter, of intention to appeal to the Supreme Court, this court is without jurisdiction to review such judgment, and an appeal therefrom will be dismissed.”
See also other cases cited in 2 West’s Oklahoma Digest, Appeal and Error,
In the case of Collins-Dietz-Morris Co., v. Wright, 163 Okl. 54, 20 P.2d 574, in the first paragraph of the syllabus, we held:
“Where, upon entry of final order, no notice of appeal is given in open court nor written notice filed within ten days thereafter and a motion for new trial is not necessary to review the questions arising upon a hearing of said order, nothing is brought to this court for review and the appeal is a nullity.”
No testimony, except that of the clerk of the trial court identifying the records of the former action between plaintiffs’ stepfather individually, as surviving husband, and as administrator of their mother’s estate, and defendant therein, was introduced in the trial below. All other evidence received in the trial was stipulated by the parties.
In the case of Rogers County Bank v. Cullison, 186 Okl. 373, 98 P.2d 612, 614, is the following language:
“In Clapper v. Putnam Co., 70 Okl. 99, 158 P. 297, this court quoted with approval certain language of the Supreme Court of Kansas in Wagner v. A. T. & S. F. R. Co., 73 Kan. 283, 85 P. 299, 300, as follows:
“ ‘There must always be a “former” verdict, report, or decision, determinative of issues of fact to be vacated before there can be a new trial, or any necessity for a motion for a new trial.’ We apply that statement here, and hold that no motion for new trial was necessary.”
Since no issues of fact were determined by the trial court, no motion for a new trial was necessary.
In the case of Wilson v. Hefner, Okl., 188 Okl. 292, 108 P.2d 108, this Court in dismissing the action, said:
“The court rendered judgment on the pleadings and the agreed statement of facts on the 30th day of June, 1939. The appeal is not prosecuted from said judgment but from á purported order overruling a motion for new trial entered thereafter on August 25, 1939. The proceeding was not filed in this court until February 23, 1940. A motion to dismiss has been filed for the reason that this court is without jurisdiction to consider said appeal. The motion to dismiss must be sustained. This court has many times held that where a judgment is entered upon the pleadings and an agreed statement of facts, it is necessary to appeal from the order and judgment entered within six months from the date of said judgment. It is also necessary to give the *1012notice of intention to appeal provided by section 531, O.S.1931, 12 Okl.St. Ann. § 954, within 10 days from said judgment. The filing and determination of a motion for new trial serves no purpose to extend the time to perform either of these jurisdictional requirements. * * * ”
If this Court is going to hold that it has jurisdiction to hear this appeal it will be necessary to overrule all of the cases cited in the above noted and all cases appearing in note 31 following 12 O.S.A. § 954. Such latter cases hold that notice of appeal is necessary to give the Supreme Court jurisdiction; that such notice is mandatory; that if a motion for new trial is unnecessary and notice of appeal is not filed within 10 days after rendition of judgment, the Supreme Court is without jurisdiction to review the judgment and will dismiss the appeal; and that the filing of an unnecessary motion for new trial does not extend the time for filing notice of appeal.
For the remainder of this dissenting opinion, I am making an assumption, contrary to my true conviction, that the Court does have jurisdiction.
It seems more than passing strange that the children, by the former marriage of their mother, may sue their step-father for distributive share, in reliance upon the judgment based upon his petition in the former action in which he alleged his deceased wife’s heirs were beneficiaries of his action, although not parties thereto, but that on the other hand, he may not defend because they were parties or should have been and the former judgment is res judi-cata as to him.
The purpose of the first suit was to recover a judgment against the alleged tort-feasor and obtain satisfaction thereof. This was done and the judgment was functus officii.
Turn the shoe around. Suppose in the first case, without making the children parties the step-father had shown the trial court he was disabled, say, and had been •dependent upon his wife, now deceased, that she had supported him and that he should have all the recovery allotted to himself, etc. Let us further suppose that one of her children sought thereafter to get in the case and show that he is a cripple, that his mother had been employed as a nurse and half-supporting him for years and asking for a part of the $13000.00 recovery on first cause of action. Would this Court countenance the entry by the trial court of a judgment for the stepfather on the ground of res judicata, when the parties had not been before him, the subject matter of the present contest had not been before him, and he had not intended by the first judgment to foreclose the rights of claimants not before the court? No.
The function of res judicata is to protect jurisdiction and give finality to something the determination of which should be held final.
Splitting a cause of action is the bringing of an action for only a part of the cause of action. A single cause of action or entire claim or demand cannot be split up or divided and separate suits maintained for the various parts thereof, nor can a party divide the grounds of recovery and maintain successive actions for the cause thereon. 1 C.J.S. Actions § 102a, b, p. 1306. The object of the rule against splitting causes of action is to prevent a multiplicity of suits. The rule exists mainly for the protection of defendant. It is based on the maxims, “It concerns the commonwealth that there be a limit to litigation”, and “No one ought to be twice vexed for one and the same cause”. 1 C.J.S. Actions § 102c, p. 1308.
The Iowa Court has held that the rule against splitting causes of actions applies only where the several actions are between the same parties. 1 C.J.S. Actions § 102f (3), p. 1312.
Under statutes authorizing a recovery for death caused by wrongful act, such a death gives rise to a single and. indivisible cause of action on which only one action for the recovery of all the damages for the benefit of all the beneficiaries may be *1013maintained, a judgment in one action ordinarily acting as a bar. to another action by ■other parties. 1 C.J.S. Actions § 104c, p. 1333.
In equity the rule is not “iron-bound,” the -courts will not enforce it unless justice in the particular case requires it, but will allow ■splitting under special circumstances to .avoid injustice. 1 C.J.S. Actions § 102e, 1309, 1310. See Ainslie v. Moss, 191 Wash. 625, 71 P.2d 679.
In 25 C.J.S. Death § 33a, 1104, it is stated that the statutes almost universally provide that the action authorized shall be for the -exclusive benefit of designated persons, members of the family or next of kin of decedent, and that in such cases the cause of action or the recovery therein is exclusively for the benefit of the designated benefici.aries, not decedent’s estate or heirs at law * * * Cited as upholding the statement that the cause of action or recovery is exclusively for the benefit of the designated beneficiaries are numerous U. S. cases and those from twenty-five states including our •own.
In the case of Aetna Casualty & Surety Co. v. Young, 107 Okl. 151, 231 P. 261, the facts were that one Effie Young had herself .appointed as administratrix of the estate of .Al Young, deceased, and sued the Magnolia Petroleum Company for allegedly and ■wrongfully causing his death. She obtained judgment for $3000.00 and defendant paid the money into court. On the same day she was appointed administratrix, sued Mag■nolia, got judgment and same was paid, she ■filed in the same action as that in which ■she had recovered the judgment, a petition with the same style on it, praying the judgment of the district court as to distribution ■of the proceeds of the judgment. Neither the widow nor her minor children by deceased were joined as defendants.
The widow, Florence Young, sued the .administratrix’ bonding company claiming entitlement to a share in the former recovery. Her judgment against the surety was .affirmed.
In the body of the opinion, this Court said:
“Suits appertaining to the administration of this fund must be filed and proceed under the statutory Code of Procedure and the rules of equity governing generally the administration of such or similar trust estates. It is the duty of the trustee at his peril to distribute the trust estate to the proper cestui que trusts. To determine to whom and in what proportion it shall be distributed, the trustee may resort to suit in the district court, and in following the final determination of that court as to its distribution, the trustee is amply protected. This is true, provided of course that the court making such adjudication has acquired the three necessary elements of jurisdiction, to wit, jurisdiction over the person, over the subject-matter, and jurisdiction to render the particular judgment. With either element lacking the judgment of distribution is void * *.
“When this money was received by the court clerk of the district court, all the issues in that case had been fully and finally determined by the district court, and its jurisdiction in all matters presented to it had been exhausted and the case was at an end. There was left to be done only the ministerial act of the clerk to pay the money to the administratrix and to pay her all of the money recovered in the case he was bound to do, regardless of who were the cestui que trusts. The pleadings and the judgment should have recited that the deceased left kin surviving, and that the recovery of the moneys was for their benefit. None of these material provisions there appear, but as both parties here on appeal agree that such was the purpose and intention of such judgment, we so treat it here. If in the original suit she had named the widow and children and had there sought and recovered a several judg*1014ment in specific amounts for each of them separately, we would have a much different case from the one at bar. Here the judgment was for one lump sum and by its express terms was for the benefit of the administratrix without reference to the next of kin. We are treating it as being for their benefit because both parties before us so agree. On that theory we hold that when the proceeds of that judgment were paid into the hands of the court clerk, the widow and children became at once the owners of said moneys; the separate interest of each being in an unliquidated amount, which could thereafter be determined by the court only in a suit where they were brought into court by due process. Effie Young, as ad-ministratrix, then filed in the district court a new petition for relief in the case just concluded, seeking an adjudication as to distribution. Such petition has no business in the files of the old case, and the court acquired no jurisdiction over the person of the cestui que trusts by filing the petition in that old case. They were not even in court on the issues involved in the first case. In the second petition she sought a judgment binding all the cestui que trusts as to the distribution of these funds and a judgment so intended she there obtained in the court on the day she filed the petition. This second judgment shows upon its face that no service either actual or constructive was had upon the cestui que trusts or upon any one whomsoever, and none but the petitioner herself seems to have participated therein or had knowledge of the second proceedings. Under the law governing courts of equity, she could have obtained service, actual or constructive, upon all claiming an interest in said fund, and upon so doing the judgment would have been valid and her sufficient protector. As no such service was had or attempted, the court acquired no jurisdiction over the person of the cestui que trusts or of those claiming to be such. The district court lacked the first necessary element of jurisdiction, and it so appears upon the face of the judgment itself. Therefore such judgment is absolutely void upon its face * *
In 25 C.J.S. Death § 33a, p. 1104, cases from several jurisdictions are cited for the proposition that the cause of action or recovery in an action for wrongful deatb is not for the benefit of decedent’s estate or heirs at law.
In 25 C.J.S. Death § 37b, p. 1123, it is-said:
“The provision that the recovery shall be distributed in the same manner as intestate personalty is necessarily limited to distribution among those for whose exclusive benefit the right of action is given, and it does not let in other persons, although such as-would take by descent in case of intestacy.”
The trust under which the personal representative or other statutory plaintiff holds-the damages which may be recovered maybe enforced by the beneficiaries. Commencement of an action is not necessary to-confer jurisdiction to order distribution of the fund and executors and administrators-who receive money in settlement of damages for death by wrongful act are officers of the court and may be required to account for and distribute the fund in a summary-proceeding in accordance with the rules-of the court. Or a beneficiary may recover his share by an action against the personal representative, or other statutory trustee of the recovery. 25 C.J.S. Death § 37d,. pp. 1127-1128.
In the case of Tackett v. Tackett 174 Okl. 51, 50 P.2d 293, this Court held that a. minor daughter by .a former marriage could recover in her action against the second1, wife of deceased because “the law implies substantial damages to the minor child by-reason of the death of her father.” The Court said that if the child, only eight years-*1015of age at the time of her father’s death, “had desired to -spread her hand against” the second wife-administratrix “as to the amount of the damages to be apportioned to each of them by the court in assessing damages, she should have done so before the rendition of the judgment for the wrongful death.” Yet the Court sustained her right to come in but on the ground of res judicata held her to the share she would have received under the law of descent and •distribution and affirmed the judgment of the trial court.
In the case of Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, all statutory beneficiaries were parties to the original suit for wrongful death. The court, after rendition of judgment and payment of amount hereof into court, upon stipulation of all parties, exonerated defendants and specifically reserved for future determination the apportionment of the recovery less certain expenses. The court followed the rule that the recovery would be divided between the mother and father of deceased in proportion to their respective pecuniary loss.
In the case of Eaton v. Allen, Old., 362 P.2d 93, wherein was involved the matter of dismissal of a suit for personal injuries and there was a question between the parties as to whether the dismissal effected settlement of another action in another county between the same parties, the Court held that extrinsic evidence should be considered. In the syllabus, the Court said:
“A consent judgment dismissing an action, entered pursuant to agreement •of the litigants, is binding only to the ■extent contemplated thereby.
“Where a ‘judgment’ of dismissal .■appears on its face to be merely an .administrative placing of record of a previous agreement entered into by the litigants, rather than an independent adjudication by the court, and it does not definitely appear, or there is room for reasonable doubt, whether said dismissal was intended to be a bar to further litigation of any and all claims ■añade, or to be made, by said litigants, or either of them, arising out of the same event, or transaction, such doubt should be resolved by extrinsic evidence.”
If this Court does have jurisdiction in this case, my opinion is that we should hold that plaintiffs, having failed to show pecuniary loss, should not recover and the trial court’s judgment should be affirmed.
I respectfully dissent.