Coker v. Vierson

• Decision Date: 14 January 1935
• Docket Number: Case Number: 23209
• Parties: COKER et al. v. VIERSON et al.
• Court: Oklahoma Supreme Court

1935 OK 22

41 P.2d 95

170 Okla. 528

COKER et al. v. VIERSON et al.

Case Number: 23209

Supreme Court of Oklahoma

Decided: January 14, 1935

Syllabus

¶0 1. APPEAL AND ERROR--Right to Reinstatement of Proceedings for Making Case-Made and Extension of Time Therefor on Account of Unavoidable Accident or Misfortune.

A district court acting upon application filed in pursuance of section 538, O. S. 1931, may upon proper showing of accident or misfortune which could not have been reasonably avoided by the party applying, reinstate proceedings for making case-made on appeal and grant extensions of time therefor, but not beyond the period in which the proceedings in error may be filed in the appellate court; held, that under the facts in this case the trial court properly granted the extension of time applied for.

2. PARTITION--Separate Appraisal of Surface Interests and Oil and Gas Rights of Nonproducing Land Where Owners Different.

Under sections 749-764, O. S. 1931, providing for partition of real estate, when it appears that the surface interests and the oil and gas rights of nonproducing land are owned by different owners and are not equal and cannot be partitioned in kind, the trial court may order oil and gas rights to be appraised separately from the surface rights and order the property sold and the proceeds distributed ratably according to the ownership thereof.

3. APPEAL AND ERROR--Affirmance--Sustaining Demurrer to Plaintiff's Evidence.

In a case tried by the court, where a demurrer to plaintiff's evidence is sustained, and it is apparent from an examination of the evidence that plaintiff wholly failed to prove his case, the judgment should be affirmed.

Appeal from District Court, Seminole County; E. A. Summers, Judge.

Action by A. A. Vierson and others against Amanda Coker and others, wherein the defendants filed petition to vacate judgment and for a new trial. From an adverse judgment, defendants appeal.

Affirmed.

RILEY, C. J., and WELCH, J., dissenting.

Edwards & Greer, of Wewoka, and D. H. Linebaugh, of Muskogee, for appellants.

James A. Veasey and L. G. Owen, both of Tulsa, Anglin & Stevenson and Orr & Woodford, all of Holdenville, Cochran & Noble, of Okmulgee, and Russell G. Lowe, James B. Diggs, William C. Liedtke, Redmond S. Cole, and C. L. Billings, all of Tulsa, for appellees.

BAYLESS, Justice.

¶1 Amanda Coker, now Brown, Richmond Coker, and Jennie Lasley, now Crain, who will be referred to hereinafter as appellants, but who were defendants, filed a petition to vacate the judgment rendered December 30, 1924, in cause No. 7141 in the district court of Seminole county, Okl., and for a new trial in said cause; and to these proceedings A. A. Vierson et al., who were plaintiffs in said cause No. 7141, and other parties who had acquired interests in the real estate after the rendition of said judgment, were required to defend against said petition to vacate and will be referred to herein as appellees, except at such times as they are named. The trial court refused to vacate the judgment and this appeal resulted.

¶2 Before taking up the consideration of the merits of the appeal, we must first notice what is, in effect, an attack upon the right to appeal. After the judgment refusing to vacate the judgment had been rendered, a motion for new trial was filed, heard, and overruled; and steps were taken to appeal therefrom. The appellants ordered a case-made and paid the court reporter therefor. Their attorneys relied upon the court reporter to prepare and deliver the case-made within the time allowed by the court, or if he was unable so to do to get the necessary extension of time. In fact, the court reporter agreed to look after the application and order for extension of time, if one became necessary. It also appears that the trial judge and reporter (who were from another district and were assigned specially to hear this matter) intended to return to the district and extend the time, but miscalculated the date and let the time theretofore given to prepare and serve the case-made expire. Appellants thereupon proceeded according to section 538, O. S. 1931, to seek to reinstate their proceedings for appeal, and the trial judge upon hearing the matter held appellants had exercised diligence and that accident and misfortune which could not reasonably have been avoided had interfered with their right to appeal. The trial court thereupon extended the time further, and the appellees brought a cross-appeal questioning the correctness of this order. Upon authority of Cherry v. Brown, 79 Okl. 215, 192 P. 227, 13 A. L. R. 92 and Harris v. First National Bank of Pryor Creek, 140 Okl. 269, 282 P. 1097, we hold upon the facts disclosed that the trial court acted within its discretion in allowing appellants to reinstitute their proceedings for appeal and extending the time therefor.

¶3 In taking up the merits of this appeal we believe it best to make a statement of the facts of the case. In our opinion there is no conflict as to the happenings, but only a difference in construction placed upon these happenings by the parties.

¶4 The appellants acquired their interest in this land by inheritance. Vierson and the other plaintiffs in 7141 acquired from certain of the heirs to this land a small undivided interest in the fee and a small undivided additional interest in the mineral rights. Vierson et al. then instituted action No. 7141, on April 15, 1924, for statutory partition. Appellants were properly served in said cause and no question is raised concerning the service of process upon them. Appellants employed an attorney at Shawnee who filed a demurrer on the 2d day of May, 1924, on their behalf, to the petition for partition. This demurrer purported to have been filed on behalf of all defendants to that action, including appellants; but it was without authority as to any one except appellants. Appellants testified they soon became convinced that this attorney could not protect their rights in this matter and they quit him. Just when they did quit him is not certain, but it is certain from the record that he never did anything for them other than file the demurrer. Willmott & Roberts, a firm of attorneys at Wewoka, on the 15th day of May, 1924, filed an answer on behalf of all the defendants to the action; but this was without authority as to the appellants. The trial court acting upon the assumption that Willmott & Roberts had authority to represent appellants made an order on June 7, 1924, striking the demurrer from the files, and it is clear from this order that the appellants Amanda Coker and Richmond Coker were not present in court or represented by counsel. Thereafter the plaintiffs in that action on November 3, 1924, filed an amended and supplemental petition for partition and alleged therein that since the commencement of the action they had acquired additional interests in the fee and prayed for the same general relief. New summons were issued and appellants were served again. The record shows, however, that on November 6, 1924, five days before these summonses were issued, Willmott & Roberts filed another answer on behalf of all of the defendants, but this was without authority from appellants. The answer day set in the last summonses issued and served was December 6th. On November 29, 1924 (although the time to answer named in the last summonses had not yet expired, but there appearing of record an answer on behalf of all defendants), the court rendered judgment according to the prayer of the plaintiffs' petition and recited in the journal entry that all of the defendants, including appellants, were represented by Willmott & Roberts. Appellants then employed C. E. B. Cutler, an attorney at Okmulgee, to represent them, and he filed on December 26, 1924, a motion to vacate the judgment of November 29, 1924. However, on December 20, 1924, the plaintiffs in that action had also filed a motion to vacate the judgment of November 29th. After Cutler had filed this motion on behalf of appellants, appellants consulted Willmott & Roberts, who had filed, without authority, the answer on their behalf upon which the judgment of November 29th had been rendered. We desire to summarize the testimony of appellants on this phase of the matter: Amanda Coker testified as follows: I know Willmott & Roberts; they had not represented appellants prior to December, 1924; I went to their office in December, 1924, after the motion to vacate the judgment of November, 1924, had been filed; we made no arrangements for them to represent appellants, but they said inasmuch as they were looking after the interests of the other defendants they would look after the interests of the appellants and keep us informed; that appellants were not present in court in December, 1924, when judgment was rendered, nor did they authorize any one to appear for them that day; that they had no knowledge of the steps taken in connection with the partition after the judgment was rendered; and, when her testimony was redirected to the visit to Willmott & Roberts' office she said: "I went to Mr. Willmott because he kept sending for me and we went up to his office and I asked him what to do with that land he said they were to put it up and sell it but that we already had an answer made in it and he was looking after the minors interest and it was undivided land and he thought he would look after all the heirs interest so he said to go on back and stop worrying about it and forget about it that everything was O. K. now and he said that if it happened to be put up and sold again that he would let us know about it so we could buy it in and I forgot about it until about April, 1925, and I was in Wewoka and I went to Roberts office and told him if he could find somebody to take an oil and gas lease on the land that I would lease it because I needed the money and he asked me what land I was talking about and I told him the old home place and he said that the land had...