Clement v. Ferguson

• Decision Date: 29 March 1955
• Docket Number: No. 36445,36445
• Citation: 287 P.2d 207
• Parties: Nettie P. CLEMENT, Plaintiff in Error, v. Frances P. FERGUSON et al., Defendants in Error.
• Court: Oklahoma Supreme Court

Page 207

287 P.2d 207

1955 OK 95

Nettie P. CLEMENT, Plaintiff in Error, v. Frances P. FERGUSON et al., Defendants in Error.

No. 36445.

Supreme Court of Oklahoma.

March 29, 1955.

Rehearing Denied May 10, 1955.

Application for Leave to File Second Petition for Rehearing

Denied June 7, 1955.

Syllabus by the Court

1. Where in the present partition proceedings, one defendant joined in plaintiff's prayer for a partition of the property involved and her attorney endorsed his name under the abbreviation 'O.K.' on the Journal Entry of the court's order for partition, said order or judgment did not, under the circumstances, constitute an agreed compromise or consent judgment, of which said defendant could not be heard to complain.

2. An order for partition entered as prescribed by Tit. 12 O.S.1951 § 1505, making no change in nor final determination of a substantial right of any of the parties to the proceedings is not a final order or judgment within the meaning of our appellate jurisdiction statutes, Tit. 12 O.S.1951 §§ 952, 953, or judgment vacation statutes, and can be modified, vacated or set aside previous to the trial court's consideration of the commissioners' report and its final judgment, even after the term of court during which it was entered.

3. Under the circumstances existing in this case, the trial court's action in modifying the previous order for partition was not rendered erroneous by the provisions of Tit. 12 O.S.1951 § 1512, as amended by Chap. 28, sec. 1, S.L.1953, and sec. 1513 of said Title.

4. Where, under Tit. 12 O.S.1951 § 1513, some of the land interests involved in partition proceedings are ordered sold, those interests' proportionate part of the costs, attorneys fees and expenses of the proceedings should first be paid out of the proceeds of their sale.

Appeal from the District Court of Carter County; Sam Sullivan, Judge.

Proceedings for the partition of five tracts of land, in which the trial court, upon trial of the defendants' motion therefor and plaintiff's motion to strike said motion, entered a judgment which (among other things) modified and vacated the previous order for partition as to the mineral rights under said tracts, and denied plaintiff's counsel's request that his attorney's fee be apportioned among the parties and taxed as costs in the action. From said judgment, plaintiff appeals. Affirmed in part and reversed in part.

H. A. Ledbetter, Ardmore, for plaintiff in error.

Ezra Dyer, Dyer & Dyer, Riddle & Riddle, and Otey, Johnson & Evans, Ardmore, for defendants in error.

BLACKBIRD, Justice.

This is an action, commenced by plaintiff in error, as plaintiff, for the partition of five separate tracts of land in Carter County, in which she owned various undivided fractional interests, along with defendants in error, who were named defendants in the action. All parties will hereinafter be referred to as they appeared in the trial court.

In their answer to plaintiff's petition, the defendants, Frances P. Ferguson, and others unnecessary to mention, joined in the general prayer of plaintiff's petition that the tracts be partitioned; and on June 17, 1953, there was entered in said proceedings an order for partition (as contemplated by our partition statutes, 12 O.S.1951 § 1501 et seq.), though, by the journal entry thereof, it was denominated a 'Judgment'. Included therein was the appointment of three commissioners to determine if the property could be partitioned in kind, and, the direction that if not, the property be appraised. The January, 1953, Term of said court expired without said commissioners having acted and a new group was thereafter appointed in September. Finally, in October of that year, the new commissioners filed their report containing their finding that the five tracts could not be partitioned in kind, and their appraisals of the mineral and surface rights separately in the various tracts. Within ten days after the filing of the report (as now prescribed by statute, Chap. 28, sec. 1, Okl.Sess.Laws 1953, 12 O.S.Supp. § 1512) the defendant Frances P. Ferguson filed one separate election to take tracts 2-5, both inclusive, and another, in conjunction with some of the other defendants, to take tract 1. The filing of these elections by defendants was followed by the filing of plaintiff's election, in which she elected to take only the mineral rights in tracts 1-4, inclusive, and both the surface and mineral rights in tract 5, and elected to accept the appraised value for her interests in the surface rights in tracts 1-4, inclusive. To her election she added a prayer that the court make an order directing the sheriff to sell 'the oil and gas rights' in tracts 1-4, both inclusive, and both the surface and mineral rights in tract 5; and further prayed for an order directing the defendants to pay her the appraised value for her interests in the surface rights of tracts 1-4, both inclusive.

Thereafter, the defendant Frances P. Ferguson filed in the proceedings a motion (on grounds not here necessary to mention) the court to modify its previous 'Decree' or order for partition so as to deny partition of the mineral interests in the five tracts. Plaintiff then moved to strike this motion on the ground (among others) that the court was then without jurisdiction to modify its said previous order upon defendants' motion filed after the end of the term in which the order was entered.

After a trial and hearing of the two parties' motions, whereat both parties introduced testimony and other evidence in support of their respective positions, plaintiff's motion to strike was overruled and judgment was entered denying partition of the mineral interests in the five tracts, and vacating the 'Decree' of June 17, 1953, directing partition of such interests, all in accord with written findings of fact and conclusions of law filed by the court. It was further decreed that the defendant Frances P. Ferguson should have (in accord with the parties' previous elections) plaintiff's surface interests in tracts 2, 3, and 4; that she and the other defendants who had elected to take it, should have plaintiff's surface interest in tract 1; and directed the Sheriff to execute and deliver to said defendants deeds to carry out said decree, upon said defendants' respective payments to plaintiff of the appraised value of her said surface interests. As to the surface rights in tract 5, the sheriff was ordered to sell them at public auction, as they could not be partitioned, and both plaintiff and defendants had elected to take them. In connection with this judgment, the court, upon plaintiff's attorney's request that it fix his attorney's fees to be paid, and, defendants' objection to any part thereof being taxed against them, concluded that each party to the action should be responsible to his or her own attorney for such fees, and ordered that none of such fees be taxed as costs or any part of one party's attorney's fees be charged against any other party to the action.

After the overruling of her motion and amended motion for a new trial, plaintiff lodged the present appeal. It is directed principally at the action of the trial court in setting aside and superseding with its final judgment, the 'Judgment' or Order For Partition of June 17, 1953.

Under Proposition 2 in her briefs, plaintiff urges that the latter was a 'final' judgment, and, under this court's previous interpretations and applications of 12 O.S.1951 § 1031, could only be vacated or modified upon a motion filed in the same, or January, 1953, court term in which it was entered. In this connection see cases cited under Note 7, 12 O.S.A. § 1031, subd. 1. Defendants maintain that said so-called 'Judgment' was no more than an interlocuttory decree or order whose vacation might be sought after the term (as well as within the term) and to which the limitation cited is not applicable. As authority therefor, they cite Montoya v. Unknown Heirs of Vigil, 16 N.M. 349, 120 P. 676, and Hamlin v. Hamlin, 90 Wash. 467, 156 P. 393. This question has never previously been before this court, though we have held that an order confirming the report of commissioners in a partition proceeding becomes final after the term in which it is entered and then cannot be vacated. See Baker v. Vadder, 83 Okl. 140, 200 P. 994. As to whether such rule applies to such a judgment referred to in our statute prescribing it, 12 O.S.1951 § 1505, as an 'Order', there is a recognized diversity of opinion. However, we think the weight of authority in jurisdictions having statutes no different from ours in respects material to the instant question, sustains the view urged by defendants. See Vaught v. Vaught, 296 Ky. 754, 178 S.W.2d 590; Swank v. Wilson, 80 Ohio App. 58, 74 N.E.2d 773; Salyer v. Arnett, Ky., 62 S.W. 1031; Camp Phosphate Co. v. Anderson, 48 Fla. 226, 37 So. 722; Tilton v. Vail, 117 N.Y. 520, 23 N.E. 120; Gilleylen v. Martin, 73 Miss. 695, 19 So. 482; Murray v. Yates, 73 Mo. 13; 40 Am.Jur., 'Appeal and Error', sec. 145; Freeman on Judgments, 5th Ed., Vol. 1, sec. 41. In Salyer v. Arnett, supra , the order involved was one of a Kentucky county court, but the question there considered was the same as the one here. There the court said:

'In Bondurant v. Apperson, 61 Ky. 30, the rule is laid down that a judgment is not final that cannot be enforced to the extent of giving the final relief contemplated by it without further action by the court. This rule is sustained by the great weight of authority (Freem., Judgm., 30), and under it the order in question must be regarded as interlocutory, for plainly it gave no final relief to the parties, and contemplated further action by the court on the coming in of the commissioners' report.'

A reading of our statutes on partition (especially sec. 1505-1511, both inclusive, of Tit. 12, supra) clearly shows the same contemplation described in the above quotation; and substantially the same test of the finality of...