Abernathy v. Huston, Co.

• Decision Date: 14 November 1933
• Docket Number: Case Number: 21497
• Citation: 1933 OK 597,166 Okla. 184,26 P.2d 939
• Parties: ABERNATHY, Agt., et al. v. HUSTON, Co. Treas.
• Court: Oklahoma Supreme Court

1933 OK 597

26 P.2d 939

166 Okla. 184

ABERNATHY, Agt., et al. v. HUSTON, Co. Treas.

Case Number: 21497

Supreme Court of Oklahoma

Decided: November 14, 1933

Syllabus

¶0 1. Judgment--Pronouncement of Judgment by Court as Prerequisite to Entry of Judgment by Court Clerk.

The act of the court clerk in entering judgment is ministerial in its nature, and the previous pronouncement of judgment by the court is an indispensable prerequisite to such entry.

2. Same--Act of Judge in Signing Journal not in Itself Rendition of Judgment.

The act of a judge in signing a journal entry does not in itself constitute a rendition of judgment.

3. Same--Vacation of Unauthorized Record of Judgment Entered by Clerk.

The record of a judgment entered by the clerk without authority of law, as in cases where there has been no previous judicial action of the court, may be vacated or stricken from the records, when the existence of erroneous record is properly brought to the attention of the court.

4. Same--Vacation of Judgment on Illegal Claim Against Municipality Where Judgment Collusive and Legal Fraud Upon Taxpayers and Court.

Where an illegal claim or demand against a municipal or quasi municipal corporation is reduced to judgment pursuant to agreement between the parties presenting the demand or claim and the officers charged with the duty of representing the municipality without any judicial consideration of the merits of the claim on the part of the court purporting to have rendered the judgment, and where the circumstances surrounding the entry of judgment are sufficient to justify a finding of collusion between the parties to the agreement, the court may, in a proper proceeding commenced for that purpose, vacate such judgment on the grounds that a legal fraud has been perpetrated upon the general property owning taxpayers of the municipality and upon the court.

5. Same--Judgment for Recovery of Protested Taxes Held Properly Vacated.

Record examined, and held to support the judgment of the trial court vacating a previous purported judgment on the grounds of legal fraud, and upon the theory that no judgment had in fact been rendered.

6. Judgment--Vacation for Fraud--Necessary Showing of Meritorious Defense.

Where a judgment is attacked upon the grounds of fraud, it is incumbent on the party seeking the vacation thereof to establish and procure the adjudication of the existence of a prima facie meritorious defense to the cause of action upon which such judgment was based.

7. Same--Prima Facie Meritorious Defense Held to Have Been Shown to Actions to Recover Protested Taxes.

Held, that the record in this case supports the finding of the trial court that there existed a prima facie meritorious defense to each of the causes of action upon which the previous alleged judgment was based.

Appeal from District Court, Oklahoma County; Earl Welch, Assigned Judge.

Action by Paul Huston, County Treasurer of Oklahoma County, against J. N. Abernathy, agent for J. P. Doyle, and others to vacate and set aside a former judgment of the court. Judgment for plaintiff, and defendants appeal. Affirmed.

J. B. Dudley, Adelbert Brown, Gordon Stater, Mont F. Highley, L. D. Threlkeld, O. K. Wetzel, Snyder, Owen & Lybrand, Shirk, Danner & Phelps, Wilson & Wilson, & Owens, A. M. Beets, Embry, Johnson, Crowe & Tolbert, and S. K. Bernstein, for plaintiffs in error.

Lewis R. Morris, Co. Atty., and B. C. Logsdon, Asst. Co. Atty., for defendant in error.

BUSBY, J.

¶1 This action was commenced in the district court of Oklahoma county on the 26th day of March, 1929, by the county treasurer of Oklahoma county, as plaintiff, against J. N. Abernathy, agent for J. P. Doyle, and several hundred other persons as defendants. In his petition the plaintiff attacked the validity of a judgment or purported judgment of the district court of Oklahoma county bearing date of June 29, 1928, and sought to vacate the same. Answer was filed on behalf of the defendants, and the issues joined by the pleadings were tried to the court. Judgment was rendered on October 28, 1929, declaring the previous purported judgment invalid and adjudging that the plaintiffs (defendants in the previous action) had a prima facie valid defense to each of the causes of action upon which such previous judgment was based, and ordering that the same be vacated.

¶2 From this decision vacating the former judgment and reinstating the cause for trial upon the issues framed by the pleadings before such judgment was rendered, this appeal has been perfected. The previous judgment of the district court of Oklahoma county was rendered in an action brought by protesting taxpayers who sought to recover in that action more than three-quarters of a million dollars in protested taxes. The judgment vacated affirmed their right to recover more than a half million dollars of this money. If the judgment of vacation rendered in the trial of the case at bar was proper and is permitted to stand, the defendants will be compelled to establish upon a trial of the issues the merits of the causes of action upon which they sought to recover the last-mentioned sum of money. On the other hand, if the judgment of the trial court in this case is reversed, the rights of the defendants to receive this enormous amount of money from Oklahoma county pursuant to the provisions of the previous alleged judgment is approved regardless of the validity of their claim to the same.

¶3 In this connection we must and do recognize the difference between a judgment and the claim or demand upon which the same is based. It is possible to have a valid judgment based upon an invalid claim and an valid judgment based upon a valid claim. Generally speaking, the validity of the claim upon which the judgment is based has nothing to do with the validity of the judgment. However, in some instances, the validity of the claim becomes an important factor in determining the validity of the judgment based upon the same. This is frequently the case where the judgment attacked is against the municipality and the attack is based upon the ground of fraud or collusion on the part of the municipal officers representing or purporting to represent the municipality. The validity of the claim is likewise of importance in determining whether a voidable judgment should be vacated. It being necessary to establish in such cases prima facie existence of a valid defense. Reference to these matters will be made in the subsequent portions of this opinion. At this time we address ourselves to an analysis of the situation presented by the case at bar.

¶4 The plaintiffs in error in this court were the defendants in the trial court, and were plaintiffs in the previous action in which the judgment attacked was rendered. As above stated, they were protesting taxpayers of Oklahoma county, and for the purpose of convenience will be subsequently referred to in this opinion as such. The defendant in error, county treasurer, was at all stages of the proceedings in both cases the adverse party. On the 26th day of April, 1928, the protesting taxpayers commenced their action in the district court of Oklahoma county against the county treasurer of Oklahoma county. The case was styled J. N. Abernathy, Agent of J. P. Doyle, et al. v. E. Bonaparte, and was numbered 55507. There were in that action approximately 2,500 plaintiffs, who each individually sought the recovery of certain alleged illegal taxes said to have been previously paid by them under protest. The validity of a number of levies made by the county excise board for the fiscal year ending June 30, 1928, was attacked for various reasons which need not be herein discussed. A large portion of these protesting taxpayers also claimed their right to recover a portion of the protested taxes on the theory that the assessed valuation of their property, both real and personal, had been improperly and illegally increased or determined. The complaint last mentioned formed the basis of causes of action numbered, respectively, 11 and 12 in the petition. In all, there were twelve separately numbered causes of actions, each purporting to state a different theory of or right to recover in whole or in part the taxes paid under protest. The eleventh cause of action alleged an unauthorized increase in the assessed valuation of real estate belonging to each of several hundred of the protesting taxpayers. It alleged that such increase in assessed valuation had been made without proper notice to the taxpayers. The 12th cause of action alleged that the assessed valuation of the personal property of a large number of the protesting taxpayers had been determined without the publication of notice as specified in section 9664, C. O. S. 1921. This cause of action was based upon the theory that such application of notice was a jurisdictional prerequisite to the imposition of a valid tax.

¶5 Each of the plaintiffs could have been required to file a separate action setting forth his particular grievance. However, owing to the enormous number of taxpayers interested, it was agreed in writing between the various attorneys representing them and the attorneys representing the county treasurer that all might join as plaintiffs in one action and that no objection to the joinder would be made. An oral understanding existed between the attorneys to the effect that 12 individual suits should be filed by separate taxpayers, each of such suits to involve a single cause of action corresponding to one of the causes of action in the principal or consolidated case. It was understood that these individual suits, which were commonly termed "test" cases, were to be tried in advance of the principal or consolidated case, and when the judgment in the "test" cases became final, the rule therein established should govern in the principal or consolidated case. This understanding seemed to have been tacitly agreed to by the learned trial judge who later tried the cases. However, he decided that...