Chivers v. Bd. of Com'Rs of Johnston Cnty.
| Citation | 1916 OK 1001,62 Okla. 2,161 P. 822 |
| Decision Date | 05 December 1916 |
| Docket Number | Case Number: 8074 |
| Parties | CHIVERS v. BOARD OF COM'RS OF JOHNSTON COUNTY. |
| Court | Supreme Court of Oklahoma |
¶0 1. Appeal and Error--Decisions Reviewable--Orders After Judgment.
An appeal lies to this court from an order of the trial court that plaintiff take nothing by reason of a former judgment and that the payment of the same be permanently enjoined.
2. New Trial--Nature of Petition--Form of Original Proceeding.
A petition for new trial is not proper or allowable, where there has been no issue of fact raised by the pleadings or determined by the verdict of a jury or its legal equivalent upon a former trial in the same court.
3. New Trial--"Issue of Fact."
An issue of fact which may be re-examined upon a new trial arises only upon a material allegation in the petition controverted by the answer, upon new matter in the answer controverted by the reply, or upon new matter in the reply considered as denied without further pleading.
4. Judgment--Validity--Jurisdiction.
A judgment rendered in a cause in which defendant appears and pleads, and in which the petition brings before the trial court a subject-matter within the jurisdiction of the court, but states the plaintiff's cause of action defectively, or not at all, all parties being within the jurisdiction of the court, is erroneous, but is not void.
5. Judgment -- Default -- Requisites -- Effect of Appearance.
Defendant appeared in the cause, filed a demurrer, and was present at the final hearing, and joined in submitting the cause to the court. Held, that the judgment rendered was not a judgment by default.
Error from District Court, Johnston County; J. H. Linebaugh, Judge.
Action by C. E. Chivers, guardian, against the Board of County Commissioners of Johnston County. Judgment for defendants, and plaintiff appeals. Reversed and remanded, with directions.
Sam H. Butler, for plaintiff in error.
P. B. H. Shearer, Co. Atty., and J. J. Stobaugh, Asst. Co. Atty., for defendant in error.
¶1 C. E. Chivers, as guardian of certain minors, sued the board of county commissioners of Johnston county to recover certain taxes paid by him. On October 24, 1914, after service and appearance and filing of a demurrer, by the county attorney, it seems, from the journal entry, both parties appeared and "the cause was submitted to the court," who thereupon heard evidence and rendered judgment for plaintiff and against defendants for a part of plaintiff's demand. No exception was taken to this judgment, and no appeal perfected. Some eleven months thereafter, to wit, on September 25, 1915, the defendants by the county attorney filed a petition in said cause setting out the judgment and alleging same was rendered "under chapter 152 of Laws of 1910-11, and that after the rendition of said judgment and on the 15th day of June, 1915, the Supreme Court of Oklahoma, in the case of E. B. Johnson v. Grady County, reported in 50 Okla. 188, 150 P. 497, held that part of said chapter unconstitutional and void, and that said judgment at the time it was rendered was unconstitutional and void, and that said Judgment at the time it was rendered was contrary to law, and that this fact could not with reasonable diligence have been discovered until the decision of the Supreme Court, but the same was discovered after the term at which said judgment was rendered and without fault of defendant herein." Prayer was that the court "set aside and hold for naught the said judgment in this case, and that the county treasurer of said county of Johnston be temporarily restrained from paying said judgment or any part of said judgment, and that the petitioner have a new trial in this cause and for all proper relief." This petition was verified and was filed after the term at which the original judgment was rendered, but prior to the next succeeding term. It will be noticed that the county treasurer was not a party to this proceeding. The plaintiffs then appeared specially and moved to "quash the service herein," alleging that "there has been no service," and that he "therefore asks that the same be quashed." Upon this motion being overruled, plaintiff filed a "demurrer to the petition for new trial" upon the ground that same was insufficient in law. This "demurrer" was by the court on October 4, 1915, overruled; said "defendant given ten days to plead." The court on the same day temporarily restrained the county treasurer from paying the judgment or any part thereof "until the further order of the court." On October 21, 1915, plaintiff filed a motion "to set aside and revoke the order made in this cause on October 4, 1915, which set aside the former judgment of this court and also granted defendant a temporary restraining order."
¶2 A careful examination of the various orders above referred to constrains us to hold that the trial court had not at this time "set aside" any former judgment. He had only ordered that the matter of payment by the treasurer be held in statu quo until his further order and had overruled plaintiff's "demurrer" and given him leave to plead. Inasmuch as the statute (section 5037) provides that "the facts stated in the petition shall be considered as denied without answer," it does not appear what pleading plaintiff might have filed; but, at any rate, he had the leave and clearly his original judgment had not yet been vacated or set aside. On the same day that plaintiff filed this latter motion, the same came on for rehearing. Two journal entries reciting the court's action appear in the record. Construing them together, it appears that the trial court overruled plaintiff's motion, found that the original judgment rendered on October 24, 1914, "was void and of no effect," and ordered that plaintiff "take nothing by his judgment rendered on October 24, 1914," and, without granting any new trial, made the temporary restraining order, theretofore issued against the county treasurer, a perpetual injunction, and rendered judgment for the defendant board for costs. Exception being taken, an extension of time to perfect an appeal was allowed, and within proper time the cause brought here for review.
¶3 At the outset, we are confronted by the contention of defendant in error that no proper appeal is before us for consideration. This is based upon the contention that the judgment of October 24, 1914, was set aside on October 4, 1915: that plaintiff Chivers' motion to vacate of October 21, 1915, and the overruling thereof on that day, was insufficient to confer a right to review the judgment of October 4th, on appeal, the 15 days for appeal therefrom allowed by statute, no extension having been granted, having expired prior to the time plaintiff's motion of October 21, 1915, was filed. The fallacy of this argument is that, as above shown, the court did not make any final order in relation to the judgment of October 24, 1914, until October 21, 1915. We may leave out entirely plaintiff's motion and demurrer. The trial court on October 21, 1915, set aside, vacated, and perpetually enjoined the enforcement of his prior judgment. From this order clearly he had a right to appeal, having properly objected and excepted thereto. Sections 5236-5239, Rev. Laws 1910.
¶4 The order in this case is clearly distinguishable from the order held not appealable in such cases as Town of Byars v. Sprouls, 24 Okla. 299, 103 P. 1038, Aetna Bldg. & Loan Ass'n v. Williams, 26 Okla. 191, 108 P. 1100, and Clapper v. Putnam Co., 70 Okla. 99, 158 P. 297. In those cases the court vacated the former judgment and ordered a new trial. Hence each cause was not finally determined until the new trial was had and a final judgment rendered. Here the judgment was set aside, held void, and its payment enjoined. Clearly there was nothing more to be done by the plaintiff in the trial court. His rights, if any he had, under his petition, were finally determined against him. Nothing was left but a right of appeal. Such order not only "grants an injunction," but "affects a substantial right" and determines the action "upon" summary application "after judgment," and brings the matter within the statute governing appeals.
¶5 Upon the merits, the defendant seeks to justify his pleading under section 5037, Rev Laws 1910, authorizing in certain cases the filing after the term of a petition for new trial. This section of the statute contemplates only the granting of a new trial in proper cases. After an examination of the record in this case, we are convinced that if the defendant's application be construed only as a petition for a new trial under section 5037, supra, it could avail nothing by reason of the fact that a petition for new trial has no proper office and could not rightfully be granted in this cause. This for the reason that there never was an issue of fact presented or determined preceding the original judgment, and therefore there could not, in any proper sense, be a new trial. Under our statute (section 5033, Rev. Laws 1910), "a new trial is a re-examination in the same court of an issue of fact, after a verdict by a jury, the approval of the report of a referee or a decision by the court." See Price & Miller v. Ratcliffe, 47 Okla. 370, 148 P. 153.
¶6 In the original proceeding a petition and demurrer thereto were filed. The record then shows that the parties appeared and "the cause was submitted to the court." Apparently the only thing to be submitted was the petition and demurrer thereto. The journal entry of the judgment does show that the trial court heard "the evidence offered," but so far as the record shows, there was no answer filed, and in no way were the facts alleged in the plaintiff's petition controverted. It is difficult to see, therefore, how an "issue of fact" arose upon the original trial which could be re-examined in a new trial. In Owen v. District Court, 43 Okla. 442, 143 P. 17, this court quoted and approved the language of the Supreme Court of...
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