City of Clinton ex rel. Richardson v. Cornell

• Decision Date: 17 November 1942
• Docket Number: 30709.
• Citation: 132 P.2d 340,191 Okla. 600,1942 OK 379
• Parties: CITY OF CLINTON ex rel. RICHARDSON v. CORNELL et al.
• Court: Oklahoma Supreme Court

132 P.2d 340

191 Okla. 600, 1942 OK 379

CITY OF CLINTON ex rel. RICHARDSON v. CORNELL et al.

No. 30709.

Supreme Court of Oklahoma

November 17, 1942

Syllabus by the Court.

1. A purported judgment entered by the court clerk without a previous judicial action of the court is void.

2. A void judgment may be vacated in a proper proceeding instituted for that purpose by a party affected thereby without establishing a meritorious defense.

3. A recorded journal entry showing a judgment to exist when in fact none was ever pronounced is a clerical error or misprision and evidence dehors the record is admissible to show the existence of the mistake.

4. A district court of this state cannot pronounce judgment at a municipality other than the county seat by virtue of section 25, Article VII of the Oklahoma State Constitution.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Proceeding by the City of Clinton on the relation of I. G. Richardson against George W. Cornell and others to vacate a judgment or purported judgment. From an adverse judgment, the relator appeals.

Reversed with directions.

Snyder and Lybrand, of Oklahoma City, Okla., for plaintiff in error.

Meacham Meacham & Meacham, of Clinton, George W. Cornell, of Oklahoma City, and George C. Loving, Arney & Barker, and A. J. Welch all of Clinton, for defendants in error.

DAVISON Justice.

This is an appeal from the District Court of Custer County. Complaint is made of the refusal of that court to vacate a judgment or purported judgment previously entered of record therein.

The question of fact in issue is whether the competent evidence establishes that the judgment was rendered at Arapaho, the county seat of Custer County, where, under the mandate of the constitution, the district court should be held (Art. VII, § 25, Oklahoma State Constitution) or at Clinton, a larger municipality in Custer County about four miles from the county seat.

The questions of law are whether the evidence introduced for the purpose of establishing that the judgment was rendered at Clinton rather than Arapaho was competent and sufficient and whether the judgment was in fact a judgment if so rendered.

The attack on the judgment is by petition to vacate the same. Thus the attack is direct as distinguished from collateral. That is, the proceeding before us is one designed primarily to defeat the judgment as distinguished from one in which its validity or existence is incidental. Wright v. Saltmarsh, 174 Okl. 226, 50 P.2d 694; Continental Gin Co. v DeBord, 34 Okl. 66, 123 P. 159. The restrictive rules of evidence peculiarly applicable to collateral attack do not obtain and a broader inquiry into facts not apparent from the record proper is permissible.

The record reflects that on April 5, 1941, in cause no. 6658, styled City of Clinton, a Municipal Corporation ex rel. J. G. Richardson v. E. C. Williams et al., there was filed and recorded a journal entry of judgment signed by Cham Jones as assigned district judge and reflecting that on September 28, 1940, the evidence in the cause was heard and the same taken under advisement and that thereafter on November 22, 1940, the court rendered judgment in favor of the several defendants.

There is no dispute that the evidence was introduced in a hearing had at Arapaho. Of course the inference arises from the journal entry that the judgment was also rendered there even though the journal entry does not so recite. The presumption that public officers have performed their duty and that court was held where the law requires is indulged to support the judgment. However in this type of hearing neither the journal entry of judgment nor the presumptions that arise in connection therewith bar the introduction of evidence to show that no judgment was in fact rendered provided of course that the proof introduced is of a sufficiently convincing character.

In deciding a controversy the effective and controlling act of the court is the rendition or pronouncement of judgment as distinguished from the entry thereof on the record, the latter being merely a record of the decisive act. Evidence may be introduced to show that the judgment was in fact not rendered even though the record indicates that it was. Furthermore, if it be established that no judgment was rendered it is not essential in order that the record of the purported...