Arthur v. Arthur
| Decision Date | 28 July 1959 |
| Docket Number | No. 36632,36632 |
| Citation | 1959 OK 148,354 P.2d 199 |
| Parties | Charles S. ARTHUR and Anna Pearson Arthur, Plaintiffs in Error, v. Ira W. ARTHUR, administrator with the will annexed, and Lizzie Kaler, executrix of the estate of J. E. Shirk, deceased; Virgil M. Shaw, executor of the estate of Cassie Vance, deceased, Defendants in Error, |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A judgment of a court denying a motion to vacate a judgment concludes the parties and their privies, not only as to the grounds contained in such motion, but as to all grounds for the vacation of the judgment which might properly have been contained therein.
2. In an action for an accounting, a cross-petition by a co-defendant for an accounting from his co-defendant is germane to the original petition if it involves the same subject matter for which an accounting is sought in the original petition and if the accounting to the plaintiff by both defendants involves the identical duty owed the cross-petitioner by the defendant.
3. A cause of action for an accounting is stated where a confidential relationship involving the control of property and the records thereof, as well as the delivery of substantial property, and a failure to return or account for the same have been alleged.
4. A request for findings of fact presented after judgment and order overruling motion for new trial was untimely and properly refused.
5. Where it is clear from the record that an attorney for an estate, who was also executor, did not take an active part in representing the estate, and this is further indicated by his own testimony wherein he admitted that the work of the attorneys for one of the remaindermen in an action for an accounting had helped some in protecting the assets of said estate, but as to how much he would have to leave to the court; and where the trial court apparently took into consideration this testimony, together with its own observation, concluded that said estate was benefited by said services and that a fee should be allowed to the attorneys, who, although appearing of record for one of the devisees and remaindermen of the estate, did actually render legal services which were of benefit to the estate, and through the estate benefited other devisees and remaindermen, it was not error for the trial court to award the fee as a charge against the estate.
6. In an action of equitable cognizance, this court will examine the record and weigh the evidence, and if the judgment is against the clear weight of the evidence will render such judgment as should have been rendered by the trial court. Conversely we will affirm.
Appeal from the District Court of Canadian County; Baker H. Melone, Judge.
Action for an accounting. Judgment for the plaintiffs and for the cross-petitioner. Defendants appeal. Reversed in part; affirmed in part as modified.
A. K. Little, L. D. Hoyt, Oklahoma City, for plaintiffs in error.
Porta & Weaver, Rinehart & Rinehart, El Reno, for co-executors of the Shirk Estate.
Virgil M. Shaw, El Reno, for Cassie Vance Estate, defendant in error.
This is the second appeal from the District Court of Canadian County in this case. The first appeal was Arthur v. Arthur, Okl., 258 P.2d 1191. The action was commenced by Ira W. Arthur and Lizzie Kaler, co-executors of the estate of J. E. Shirk, deceased, against Virgil M. Shaw as guardian of the person and estate of Cassie Vance, an incompetent person (who before her incompetency was a co-executrix of the Shirk estate), Charles S. Arthur and Anna Pearson Arthur, his wife, for an accounting of the money and property belonging to the Shirk estate. Therein after the issues in the action for accounting were completed, the trial court ordered an accounting of the estate of J. E. Shirk, deceased. Charles S. Arthur and his wife appealed to this court from this order, and the plaintiffs (defendants in error) filed a motion to dismiss on the ground that the order was not a final order and that the errors complained of could not be presented to this court until there had been a final determination on the merits in the trial court. This Court sustained the motion and held that the order for an accounting was an interlocutory order and was not appealable and dismissed the appeal.
The record in this second appeal, which is from a judgment on the merits of the case, discloses that the original action was for an accounting as hereinbefore noted, and was brought by Ira W. Arthur, administrator of the J. E. Shirk estate with the will annexed, and Lizzie Kaler, executrix of the estate of J. E. Shirk, deceased, against Charles S. Arthur and his wife, Anna Pearson Arthur, and Virgil M. Shaw, guardian of the estate of Cassie M. Vance, an incompetent, who before her incompetency was judicially established was a co-executrix of the Shirk estate; that upon the death of Cassie M. Vance, Virgil M. Shaw was appointed as executor of her estate and upon motion of the plaintiffs the action was revived against Virgil M. Shaw as executor of the estate of Cassie M. Vance, deceased. Virgil M. Shaw, as executor of the Cassie M. Vance estate, filed a cross-petition against Charles S. Arthur and Anna Pearson Arthur for an accounting of the money and property belonging to the Cassie M. Vance estate. Judgment was rendered for the plaintiffs (the Shirk estate) against the Cassie M. Vance estate and also judgment was rendered in favor of Virgil M. Shaw, executor of the estate of Cassie M. Vance, deceased, on his cross-petition for an accounting to the Cassie M. Vance estate against Charles S. Arthur and Anna Pearson Arthur. All parties appealed, but upon stipulation and agreement and by order of this Court, over the objections of Charles S. Arthur, the cross-appeals of the Shirk and Vance estates were dismissed.
The plaintiffs, that is, the representatives of the Shirk estate, supra, and the representative of the Vance estate, supra, contend that since the dismissals of their cross-appeals by this Court upon their stipulation and the further order of this Court denying the defendant, Charles S. Arthur, leave to be substituted for the cross-petitioner, executor of the Vance estate, in his appeal from the judgment rendered against the Vance estate, that that judgment is now final and the error thereof cannot be urged by the defendant Charles S. Arthur.
The order of dismissal, omitting the caption, provided:
'Order
'In accordance with a stipulation filed herein on the 15th day of November, 1954, and to the end that the judgment of the District Court of Canadian County, Oklahoma, in cause No. 15760 shall become final as between Ira W. Arthur and Lizzie Kaler, co-executors of the estate of J. E. Shirk, deceased, on the one hand, and Virgil M. Shaw, executor of the estate of Cassie Vance, deceased, on the other hand, it is ordered:
'Done By the Court in Conference November 15, 1954.
'/s/ Harry L. S. Halley
'Chief Justice'
The foregoing order and judgment contains no provision or exception permitting Charles S. Arthur to prosecute an appeal personally, as an heir, remainderman or otherwise, from the judgment rendered against the estate of Cassie M. Vance, deceased, in the District Court of Canadian County, Oklahoma. Charles S. Arthur filed an application and motion in this case, wherein he asked this Court to vacate the order of dismissal so that he would be permitted to carry on the appeal for the Vance estate, or, in the alternative if he could not do that, he then urged that he be permitted to carry on the appeal as an heir, devisee or remainderman of the Vance estate or of the Shirk estate. In his objections to the dismissal he left nothing out. He presented, urged, briefed and orally argued every conceivable theory that would permit him to carry on the whole or any part of the controversy that had been settled by the order of dismissal. There was before this Court Charles S. Arthur's Motion to Vacate the Order of Dismissal, the response of the executor of the Vance estate, the response of the executors of the Shirk estate, Charles S. Arthur's reply thereto, the rejoinder to such reply by the executors of the Shirk estate, and all of the briefs filed in connection therewith, raised and presented to this Court every possible theory by which Charles S. Arthur as an heir, devisee, remainderman or otherwise might carry on the appeal and avoid the effect of the order dismissing the appeals. These issues were presented to this court by brief and oral argument by the attorneys of all the parties, after which we denied Charles S. Arthur's application, objections and contentions without exception; and such denial became the law of the case. Wilson-Harris...
To continue reading
Request your trial
-
Margaret Blair Trust v. Blair
...had available remedies at law.8 The Oklahoma cases of Field v. Spencer , 1936 OK 21, ¶ 0, 176 Okla. 57, 54 P.2d 146 (syl. 1) ; Arthur v. Arthur , 1959 OK 148, ¶ 15, 354 P.2d 199, and Adams v. Moriarty , 2005 OK CIV APP 105, ¶ 7, 127 P.3d 621, also note the requirement that a plaintiff have ......
-
Ring v. Public Service Co. of Oklahoma, 68908
...it is not germane to the negligence controversy and is not a proper subject for determination of the original suit. See, Arthur v. Arthur, 354 P.2d 199 (Okla.1960), wherein joinder was permitted only because the controversy involved an identical duty; Also, See, Holshouser v. Rudell, 327 P.......
-
Reirdon v. Cimarex Energy Co.
...no adequate remedy at law."), quoting Howell PetroleumCorp. v. Leben Oil Corp., 976 F.2d 614, 620 (10th Cir. 1992), citing Arthur v. Arthur, 1959 OK 148, 354 P.2d 199; and Securities and Exchange Commission v. Gilder, 2014 WL 1628474, at *3 (D. Colo. 2014) ("It is fundamental to our jurispr......
-
Barassi v. Matison, 2
...v. Tevco, Inc., 79 Cal.App.3d 314, 144 Cal.Rptr. 773 (1978); Tomiyasu v. Golden, 81 Nev. 140, 400 P.2d 415 (1965); Arthur v. Arthur, 354 P.2d 199 (Okl.1959); Parnacher v. Mount, 306 P.2d 302 (Okl.1957); Werner v. Riemer, 255 Wis. 386, 39 N.W.2d 457 (1949). Collateral estoppel will apply as ......