Billy v. Le Flore County Gas & Elec. Co.
| Decision Date | 30 September 1930 |
| Docket Number | 20288. |
| Citation | 293 P. 1009,146 Okla. 227,1930 OK 430 |
| Parties | BILLY et ux. v. LE FLORE COUNTY GAS & ELECTRIC CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 23, 1930.
Syllabus by the Court.
Issues determined by decree of court having jurisdiction cannot be retried in collateral action.
Where a court having jurisdiction of a case has pronounced a decree upon a certain issue, such issue cannot be retried in a collateral action. The binding effect of a judgment when sued on in a distinct and collateral action between the same parties is conclusive.
Trial court was not divested of jurisdiction where plaintiff, after giving notice of intention to appeal, failed to perfect appeal.
Where the court overrules plaintiffs' demurrer to defendant's answer and the plaintiffs give notice of their intention to appeal thereon to the Supreme Court, but fail to perfect their appeal, the trial court is not divested of jurisdiction, but may proceed in the action as if no notice of appeal had been given.
Action for accounting for gas, based on judgment declaring defendant's lease void, held not on face to disclose claim was without equity, though subsequent controlling decisions established contrary rules of law.
An action brought for accounting for gas taken from certain premises pursuant to a final judgment entered in another cause between the same parties declaring the purported lease under which the defendant was operating for oil and gas on the premises to be void, does not disclose on its face that plaintiffs' claim is without equity, even though subsequent controlling decisions in this jurisdiction establish rules of law under which the decree declaring the oil and gas lease to be void would not have been sustained.
Judgment is not bar to subsequent action on matters expressly excepted or reserved therein; reservation in judgment becomes res judicata, and prevents raising any question as to right to bring subsequent suit on matters reserved.
"A judgment or decree which expressly excepts or reserves from its operation specified rights or claims of the parties in suit, or the decision of questions in issue, or the right to take further proceedings in respect to certain matters, is not a bar to a subsequent action on the matters so reserved but, on the contrary, the reservation itself becomes res adjudicata and prevents the raising of any question as to the right to bring or maintain such subsequent suit." 34 C.J. 797.
When pleadings make issue of fact, it is error to sustain motion for judgment on pleadings; pleadings in action for accounting for gas taken from premises, based on judgment declaring purported lease void, held to present fact issue.
It is error to sustain a motion for judgment on the pleadings when there is an issue on a question of fact made thereby. Held, under the pleadings in the instant cause an issue of fact was made by the pleadings.
Commissioner's Opinion, Division No. 2.
Appeal from District Court, Le Flore County; D. C. McCurtain, Judge.
Action by Albert Billy and wife against the Le Flore County Gas & Electric Company. Judgment for defendant, and plaintiffs appeal.
Reversed and remanded, with instructions.
J. T Johnson, of Oklahoma City, La Fayette Walker, of Okmulgee and Geo. S. Evans, of Oklahoma City, for plaintiffs in error.
Rowland & Talbott, of Bartlesville, and T. T. Varner, of Poteau, for defendant in error.
Albert Billy is a one-half blood Choctaw citizen, enrolled opposite roll No. 6799. Certain lands were allotted to him as his homestead allotment. He and his wife, Dora Billy, resided on said premises as their homestead from July 5, 1907, and were residing there at the time this suit was filed. In 1912 Albert Billy made an oil and gas lease on said premises to the Nodak Oil Company, which lease was approved by the Secretary of the Interior. His restrictions were removed October 7, 1919. The Le Flore County Gas & Electric Company, through mesne assignments, became the owner of the lease. In March, 1914, it commenced operations on said premises and for many years produced gas therefrom. In 1922, Albert Billy and Dora Billy, his wife, in cause No. 3629, in the district court of Le Flore county, brought suit to cancel said lease on ground that it was their homestead and the lease was not executed by Dora Billy, spouse of Albert Billy. On April 16, 1923, judgment was entered in that cause canceling the lease. The defendant appealed the cause to this court as cause No. 14,782, but thereafter dismissed its appeal. On January 15, 1924, Albert Billy and Dora Billy brought this suit against Le Flore County Gas & Electric Company on the judgment entered in cause 3629 for an accounting and to recover for the gas taken from said premises. The defendant by answer set up that, subsequent to their dismissal of their appeal of cause Number 3629, the Supreme Court of the United States, in Sperry Oil & Gas Co. v. Chisholm, 264 U.S. 488, 44 S.Ct. 372, 68 L.Ed. 803, rendered on April 7, 1924, it was decided that an oil and gas lease contract on restricted lands of an Indian citizen and allottee, in which the spouse failed to join, when approved by the Secretary of the Interior, is a valid lease notwithstanding the Constitution and statutes of the state of Oklahoma to the contrary, that this decision is binding on the courts of the state of Oklahoma, and by reason thereof the plaintiffs acquired no rights under said judgment, and that this judgment in cause No. 3629 so rendered is not a basis for an action by the plaintiffs against the defendant to recover the value of the gas taken under the terms and conditions of the lease contract which was a valid lease contract notwithstanding the decision of the trial court to the contrary; that said petition on its face showed that it was without equity; that in cause 3629, which was an equitable proceedings, the court had jurisdiction to settle all the rights and liabilities as between the parties, and, having failed to decree an accounting therein, the judgment therein was res adjudicata of an accounting and estopped the plaintiffs from again litigating that question, and alleged further defenses which it is not necessary for us to consider herein. The plaintiffs filed a reply in the nature of a general denial thereto. Defendant's motion for judgment on the pleadings and record of the cause was sustained. Plaintiffs' motion for new trial was overruled, and they bring this appeal.
The determinative question here presented is whether or not under the pleadings there was any issue of fact to be tried. If there were an issue of fact made by the pleadings, it was error for the trial court to sustain defendant's motion for judgment. Peck v. First National Bank of Claremore, 50 Okl. 252, 150 P. 1039; Mires v. Hogan, 79 Okl. 233, 192 P. 811; Noland v. Owens, 13 Okl. 408, 74 P. 954; Cobb v. Wm. Kenefick Co., 23 Okl. 440, 100 P. 545; Deming Inv. Co. v. Reed, 72 Okl. 112, 179 P. 35; Hurie v. Quigg, 121 Okl. 80, 247 P. 677.
We will give consideration to each contention made by the defendant to sustain this judgment. It first contends that the trial court overruled a demurrer filed by the plaintiffs to its answer; that the plaintiffs elected to stand on said demurrer, gave notice of their intention to appeal to the Supreme Court thereon, made supersedeas bond therefor; that they failed to perfect their appeal; and that the order entered on said demurrer made a final determination of the cause, so the trial court was without jurisdiction to proceed further therein other than to enter judgment for the defendant, it having by its order on the demurrer adjudicated finally that a good defense had been pleaded, which facts were admitted by the demurrer.
With this contention we do not agree. The trial court did not lose jurisdiction of this proceeding when the plaintiffs elected to stand on their demurrer to defendant's answer and gave notice of intention to appeal thereon to this court. The appellate court does not obtain jurisdiction of the cause until an appeal is perfected. The order made on the demurrer was merely interlocutory, and the determination made thereon was not final and binding on the court making it, but it could be reviewed and changed by the court at any stage of the proceeding prior to the final judgment in the cause. Wells v. Shriver, 81 Okl. 108, 197 P. 460; 10 R. C. L. 599, et seq.; Hebblethwaite v. Flint, 83 A.D. 163, 82 N.Y.S. 471; Pickens v. Daniels, 58 W.Va. 327, 52 S.E. 215; Brannon v. Wilson (Tex. Civ. App.) 260 S.W. 201.
Subsequent to the ruling on that demurrer, the plaintiffs filed a reply and an amended reply. The trial court did not give permission to file these pleadings out of time, but it thereafter refused to strike the same on the motion of the defendant, which is tantamount to granting permission to file them.
The defendant next contends that, if the judgment entered in cause No. 3629 is a final judgment and not an interlocutory decree, the plaintiffs may not relitigate any question or issue which might have been tried therein; that it was such a proceeding as would permit not only the determination as to the validity of the lease under which defendant was operating, but also the determination of the liability of this defendant, if any, to the plaintiffs for the gas taken from the premises. It would have been proper for the plaintiffs in that action to have joined with their action to quiet title and to cancel the lease an action for accounting and thus determine all the ultimate rights and liabilities between these parties. Probst v. Bearman, 76 Okl 71, 183 P. 886; Murray v. Speed, 54 Okl. 31, 153 P. 181; Depuy v. Selby, 76 Okl. 307, 185 P. 107. The petition in that cause prayed for a judgment...
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