Am. Fire Ins. Co. of Phila. v. Pappe

• Decision Date: 13 February 1896
• Citation: 4 Okla. 110,43 P. 1085,1896 OK 3
• Parties: THE AMERICAN FIRE INSURANCE COMPANY OF PHILADELPHIA v. RICHARD PAPPE.
• Court: Oklahoma Supreme Court

1896 OK 3

43 P. 1085

4 Okla. 110

THE AMERICAN FIRE INSURANCE COMPANY OF PHILADELPHIA v. RICHARD PAPPE.

Supreme Court of Oklahoma

Decided: February 13, 1896

Error from the Probate Court of Kingfisher County.

February 6, 1894, Richard Pappe obtained a judgment in the probate court of Kingfisher county against The American Fire Insurance company of Philadelphia, in the sum of $ 705. The defendant below brings the case here for reversal. The opinion states the facts.

Syllabus

¶0 1.PROCEDURE--Probate Couris. Article 15, ch. 18, Laws of Oklahoma, extending the jurisdiction of probate courts, provides for holding regular terms of the probate court for the trial of all civil cases wherein concurrent jurisdiction is given with the district court, where the sum in controversy exceeds the jurisdiction of a justice of the peace, and in such cases the pleadings and practice and procedure in the probate court must conform to the procedure of the Territory governing pleadings and practice, and proceedings in the district court.

2.COURTS--Records. Where the law fixes a term of court to begin on the first Monday in January, and the record of such court fails to show that the court convened on the day named, and it is admitted by the judge that "there was no entry in the journal or records of the court showing that the court had been opened at any time prior to February 1, held, that in the absence of suck record it must be presumed that the court did not convene at the time fixed by law.

3.PROBATE COURT--Judgment Void for Want of Jurisdiction. A judgment of the probate court rendered in a civil action wherein the sum in controversy exceeds the jurisdiction of a justice of the peace, and which judgment was so rendered at the time when the court was not legally in session, is void for want of jurisdiction.

4.JUDGMENT--Void. Judgments rendered by a court not legally in session are void.

5.JURISDICTION--Cannot be Conferred. Where terms of court are, under the law, fixed at stated periods, and the court fails to convene at the time so fixed, and by reason thereof, the court is not legally in session, the parties to an action cannot, by agreement, confer jurisdiction upon the court to render a judgment binding upon the parties.

Boynton & Smith and Leake, Henry & Reaves, for plaintiff in error.

James A. Morris, for defendant in error.

DALE, C. J.:

¶1 November 15, 1893, Richard Pappe commenced an action in the probate court of Kingfisher county against The American Fire Insurance company of Philadelphia, to recover a judgment in the sum of $ 1,000 upon a contract of insurance, wherein defendant below agreed to insure against fire a certain building and contents, belonging to plaintiff below. After issues were duly joined, the cause was called for trial in the probate court, sitting with the powers of a district court. On January 31, 1894, the judge issued an open venire for twelve jurors and on February 1, over the objection of defendant below, called the case for trial, and on such trial the plaintiff below obtained a judgment in the sum of $ 705. To reverse the judgment, appellant assigns ninety-nine errors, and in support thereof files a brief specifically calling attention to and arguing each alleged error. We find, after an examination of the record and authorities that it will be unnecessary to consider but one of the errors assigned.

¶2 It appears that on February 1, when the case was called for trial, defendant filed a motion to quash the venire, and among the objections urged was one alleging the fact that the court was not legally in session; that it had never been legally opened or proclaimed to be open, nor had any session of the January, 1894, term been opened or continued open. The court overruled the motion, and the jury was then examined and the panel completed, after which defendant below objected to the introduction of evidence, alleging among other reasons as grounds for such objection, that the cause was not friable at that time because the January term of the court was never properly opened nor convened in session up to that date, and the call of the court in attempting to open court by proclamation of the sheriff for the first time at the January term on that date was without authority of statute and void; that any agreement for the trial of the action upon that particular day could not authorize the court to summon a jury. This objection was also overruled. Immediately following the ruling, in the record, appears the following statement:

"And the court on said first day of February, 1894, at 10 o'clock a. m., directed the sheriff to duly open court by proclamation of such officer at the door of the courtroom, and such sheriff did so open court on said first day of February, 1894, before the transaction of any court business by said court. And the court record and journal does not show that it was opened on the first Monday in January, 1894, by proclamation of the sheriff or other officer of the court, and there is no entry in the journal or record of the court showing that it had been so opened at any time previous to February 1, 1894, in a legal or regular manner, and the court, then and there in open court, stated that the court or judge could not recollect that such court had been opened or attempted to be opened in such manner on the first Monday in January, 1894, that it might or might not have been, but that it was the custom of the court, on the first day prescribed by the statute as the first day of the term of such probate court, to have it opened by an officer, if one happened to be present, and if one was not present, to regard and consider the court as open, and to open court by proclamation on all days when cases were heard, and that the court had considered itself in session since the first Monday in January, 1894, and had done business as an open court, and tried causes as such, and that whether it had been regularly opened or not the journal did not say nor any other record, and the court could not then say. And the court now certifies that the foregoing is true."

¶3 After which the court directed the trial to proceed, which was done and a verdict rendered and judgment obtained as above stated. In the judgment appears the following:

"Now on this, the first day of February, 1894, this cause came on to be heard, in pursuance of an agreement of the parties heretofore made, in open court. The plaintiff appeared in person and by his attorney, James A. Morris. and the defendant appearing by its attorneys, Boynton & Smith."

¶4 Under this state of the record we are called upon to determine whether or not the court below had jurisdiction to render a judgment in the case at the time such judgment was obtained.

¶5 I. Article 15, ch. 18, Laws of Oklahoma, passed by our Territorial legislature, approved December 25, 1890, and entitled "An act extending the jurisdiction of the probate court in civil and criminal cases, and prescribing the procedure therein and providing for appeals therefrom" is the authority under which the probate courts of this Territory obtain jurisdiction to hear and determine causes between parties other than causes of the character usually heard in probate courts. Section 1, of the act is as follows: "Probate courts. Probate courts in their respective counties shall in addition to the powers conferred upon them by the probate chapter of the Territory, have and exercise the ordinary...