Cohn v. Clark

• Decision Date: 29 June 1915
• Docket Number: Case Number: 4732
• Parties: COHN v. CLARK.
• Court: Oklahoma Supreme Court

1915 OK 534

150 P. 467

48 Okla. 500

COHN v. CLARK.

Case Number: 4732

Supreme Court of Oklahoma

Decided: June 29, 1915

Syllabus

¶0 1. JUSTICES OF THE PEACE--Appearance--Appeal. Where no valid service of process is had upon the defendant in the justice of the peace court, and a motion to quash service filed by him in that court is overruled and judgment goes against him, and he files a bond for appeal to the county or district court, which is duly approved, by taking the appeal and filing the appeal bond, he waives all defects in the service of process in the justice court, and a motion made by him in the appellate court to quash the service of process is properly overruled.

2. CONTINUANCE--Sickness of Defendant-- Probability of Recovery. Defendant made a motion for continuance upon the ground that the defendant was sick and unable to attend trial. It appears from the motion that the defendant had been sick in a distant state for about a year. Held, that in the absence of a showing that there was a probability of defendant being able to attend court in a reasonable time, it was not error to refuse the continuance.

3. MINES AND MINERALS--Oil Lease--Construction--Surrender Clause. An oil lease provided that the lessee should commence operations in drilling for oil by January 1, 1910, or thereafter pay to the lessor $ 1 per acre per annum until a well was drilled, or the lease thereafter should be null and void. Held, that upon a failure to begin operations by drilling for oil, the lessor was entitled to the stipulated rental until a well was drilled or until the lease was terminated, or canceled, under the surrender clause in the contract.

4. SAME--A provision, forfeiting a lease on failure of the lessee to fulfill the terms of the contract, is for the benefit of the lessor only, and he alone can take advantage of the same, unless there is an expressed stipulation in the contract that the lease shall become null and void, unless the lessee shall either drill within a certain time or pay the rental, or words of similar import.

5. SAME--Sufficiency of Evidence--Damages for Delay. Evidence examined, and held, to support the verdict.

Error from County Court, Rogers County; H. Tom Kight, Judge.

Action by I. G. Clark against Isaac Cohn. Judgment for the plaintiff in the county court on appeal from a justice of the peace, and defendant brings error. Affirmed.

J. I. Howard and C. B. Holtzendorff, for plaintiff in error.

J. W. Swarts, for defendant in error.

MATHEWS, C.

¶1 There was an abortive attempt to commence this action in the justice of the peace court. It appears from the record that a garnishment summons was issued, but it shows no service thereof, and has no indorsement of any kind, except it appears that it was filed in the county court on April 30, 1912. No garnishment affidavit appears of record. On the 19th of February, 1912, a summons for the defendant was issued, and it appears that this summons was published three times in a local paper, no affidavit for publication appearing of record. There appears to have been no ruling upon defendant's motion to quash service of summons. We presume the justice must have held it to be frivolous, as the next act of the court shows him entering a judgment against the defendant for $ 140. From this judgment the defendant filed his bond for appeal to the county court, where defendant again presented his motion to quash service of summons, which was overruled. He then filed motion for a continuance, which was refused. Trial was had, judgment was against him, and he is here upon appeal.

¶2 The defendant insists that the county court erred in overruling his motion to quash, and was without jurisdiction of said cause. It goes without saying that the judgment rendered by the justice of the peace was void. There was no service upon the defendant, the issuance of the garnishment summons was not based upon an affidavit, and does not appear to have been served upon anybody. The only way to account for the entering of the judgment by the justice is that it was done vi et armis. Everything done in the justice of the peace court was "without form and void," except the appeal bond was in legal form and duly filed by the defendant, and that appeal bond, like charity, covered a multitude of faults.

¶3 In the case of Gulf Pipe Line Co. v. Vanderberg,, 28 Okla. 637, 115 P. 782, 34 L. R. A. (N. S.) 661, Ann. Cas. 1912D, 407, appears the following:

"A defendant in an action in a justice court upon whom a defective service of process has been made, although he appears specially for the purpose of challenging the service and the court's jurisdiction of his person, and thereafter, without waiving his special appearance, proceeds to the trial upon the merits, if he appeals from a judgment of the justice court against him to the county court, where a trial de novo upon questions both of law and fact must be had, by taking the appeal he waives all irregularities in the issuance and service of summons in the justice court; and he cannot thereafter he heard to question the same, or to deny the appellate court's jurisdiction of his person."

¶4 It is true in the foregoing case the service of process was termed by the court as defective, yet the same principle is involved should there be no service at all, as in the instant case; for the filing of an appeal bond, duly approved, constitutes an appearance; the prior service thereby becoming immaterial, because a party to a suit can appear voluntarily. Fowler v. Fowler, 15 Okla. 529, 82 P. 923; McCord-Collins Mer. Co. v. Dodson, 32 Okla. 561, 121 P. 1085; Deming Investment Co. v. Love, 31 Okla. 146, 120 P. 635; Doggett v. Atchison, T. & S. F. Ry. Co., 31 Okla. 177, 120 P. 654; Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637, 115 P. 782, 34 L. R. A. (N. S.) 661, Ann. Cas. 1912D, 407.

3. Defendant next complains of the ruling of the court in denying his motion for a continuance. The application was based upon the fact that the defendant was absent from the state and was seriously sick in the state of New York. The defendant cites McMahan v. Norick, 12 Okla. 125, 69 P. 1047, as a case in point, wherein this court held that the trial court had abused its discretion in refusing the continuance, it appearing therein that the plaintiff was absent from court, being sick. In that case a proper affidavit was filed, setting up that the plaintiff was a material witness, setting out the facts she would testify to, and stating that the facts could not be proven by any other witness, and that counsel could not proceed to trial safely without the presence of the plaintiff to aid him in presenting the case, the affidavit fully covering the statutory grounds for continuance. In the case at bar there was filed an affidavit only of defendant's attending physician to the effect that defendant was sick in New York and had been so for a year last past. The appeal was filed in the county court April 30, 1912, and the motion for a continuance was filed September 17, 1912. It appears from the statement of defendant's physician he had been sick about six months before the appeal was filed, and was still sick when the case was called for trial, about six months afterwards. Under these conditions we do not think the court abused his discretion in refusing the continuance. In cases of continued sickness of one of the parties to the case, without any showing that there is a probability of a recovery in a reasonable time so as to enable the party to attend the trial, the court should overrule a motion for continuance based upon these grounds. In such cases the attorney representing the party should take his depositions, if his evidence is desired.

4. We will next consider defendant's claim that the judgment is contrary to law and the evidence. This was an action to recover upon a contract for an oil lease made by plaintiff to defendant, and in order to properly present the question, it will be necessary to set out certain terms of the lease contract which are:

"1st. Second party agrees to commence operations on said premises within, on or before Jan. 1st, 1910, from this date, or thereafter pay to the first party one dollar per acre per annum annually until a well is drilled, or the property hereby granted is conveyed to the first party."

"6th. Second party may at any time remove all his property and reconvey the premises hereby granted and thereupon this instrument shall be null and void."

¶5 Plaintiff based his suit upon the first clause of the lease contract, wherein defendant agreed to pay him $ 1 per acre per annum until a well was drilled or the property reconveyed. The defendant meets this claim with the following contentions:

"We submit that the lease relied upon did not obligate the lessee to drill or pay rentals; the lease was never recorded, and the lessee was never in possession of the leased premises. This was nothing more than a mere optional right of entry, and did not bind the lessee to drill or pay rents; it conveyed nothing to the lessee, except the right to explore for oil or gas under the terms of the contract" - -and cites Kolachny v. Galbreath et al., 26 Okla. 772, 110 P. 902, 38 L. R. A. (N. S.) 451, and a number of similar decisions, as authorities. Frank Oil Co. v. Belleview Gas & Oil Co., 29 Okla. 719, 119 P. 260, 43 L. R. A. (N. S.) 487; Ohio Oil Co. et al. v. Detamore, 165 Ind. 243, 73 N.E. 906; Backer v. Penn. Lubricating Co., 162 F. 627, 89 C. C. A. 419; Deming Inv. Co. v. Lanham, 36 Okla. 773, 130 P. 260, 44 L. R. A. (N. S.) 50; Superior Oil & Gas Co. v. Mehlin, 25 Okla. 809, 108 P. 545, 138 Am. St. Rep. 942.

¶6 The cases cited by defendant from our own court are all equitable actions, wherein the enforcement of specific performance is sought to compel a conveyance of the lease as promised in the contract, and are not to be confused with cases of the kind at bar, which is a law action, pure and simple. In the cases cited by defendant, which are...