Collins v. Wanner, 40024

CourtSupreme Court of Oklahoma
Writing for the CourtBERRY; BLACKBIRD
Citation1963 OK 127,382 P.2d 105
PartiesEverett S. COLLINS and Joe A. Moore, individually and as co-partners dba Collins & Moore, Plaintiffs in Error, v. Henry Richard WANNER, Defendant in Error.
Docket NumberNo. 40024,40024
Decision Date28 May 1963

Syllabus by the Court

1. To authorize a recovery in damages against an attorney for negligence, not only must negligence be established, but it must also appear that injury resulted to the plaintiff from such negligence.

2. An attorney who acts in good faith and in an honest belief that his advice and acts are well founded and in the best interest of his client is not answerable for a mere error of judgment or for a mistake in a point of law which has not been settled by the court of last resort in his State and on which reasonable doubt may be entertained by well-informed lawyers.

Appeal from the Court of Common Pleas of Tulsa County; Rooney McInerney, Judge.

Action by defendant in error, plaintiff below, to recover from plaintiffs in error, defendants below, who are lawyers, damages allegedly resulting from latters' negligently failing to timely perfect, as attorneys for plaintiff, an appeal from a judgment obtained by plaintiff's former wife in a proceeding by which she sought to have computed and reduced to judgment allegedly delinquent child support payments awarded by a prior divorce decree. Reversed with directions.

Collins & Sellers, Sapulpa, for plaintiffs in error.

Sanders, McElroy & Whitten, Tulsa, for defendant in error.

BERRY, Justice.

Herein the parties will be referred to as they appeared below which is in reverse order to their appearance here.

On April 16, 1942, Norene E. Wanner instituted a local action (No. 1339-D below) against plaintiff for a divorce, custody of the minor children of the parties and an award for child support. It appears that plaintiff was then a resident of California and has since continued to reside in said State.

In the mentioned action, plaintiff entered a general appearance and waived the issuance of summons. Thereafter, on May 5, 1942, judgment was entered granting Norene E. Wanner a divorce, custody of the minor children and plaintiff was ordered to pay as child support $40.00 a month beginning July 5, 1942. This judgment became final in 1942.

On November 16, 1955, Norene E. Wanner filed a motion in No. 1339-D seeking judgment for that portion of the award for child support that allegedly was unpaid, which amount was stated to be $3,365.00, together with interest.

Plaintiff filed a response to the motion where he alleged that the youngest child became of age not later than April 15, 1951; that no support payments were due following said date; that payments due prior to November 16, 1950, were barred by 'statute of limitation applicable to dormant judgments', being 12 O.S.1951 § 735.

Following trial of case to the court, judgment was rendered December 15, 1955 in favor of Norene E. Wanner. The amount of accrued and unpaid child support was fixed at $3,000.00, together with interest.

Plaintiff gave notice of intention to appeal from the judgment. He requested and was granted an extension of time within which to make a casemade. On February 23, 1956, the casemade was settled and signed by the trial court. Thereafter, on May 10, 1956, plaintiff moved for additional time to and including May 15, 1956, within which to appeal. Notice was given Norene E. Wanner that the motion would be presented May 11, 1956 to the trial court. Following presentation of the motion on said date, it was ordered that plaintiff should have an extension of time to appeal to and including May 15, 1956. The petition in error with casemade attached was filed in the court on the last mentioned date.

After the appeal had been lodged here, Norene E. Wanner filed a motion to dismiss the appeal on the grounds that the petition in error with casemade attached had not been filed in this court within 20 days from date same was settled and signed. This motion was denied. Subsequently, an opinion was promulgated reversing the trial court, which opinion appeared in 28 O.B.J. 89. In so far as material, grounds for reversal were that the judgment dormancy statute (12 O.S.1951 § 735) is applicable to matured and unpaid installments of an award for child support.

A petition for rehearing directed to the opinion was timely filed. After the lapse of a number of months, the opinion was withdrawn and an opinion was promulgated dismissing the appeal. This opinion is reported in Wanner v. Wanner, Okl., 350 P.2d 241. The basis of the opinion was that under the provisions of 12 O.S.Supp. § 972, filing of the petition in error with casemade attached within 20 days from date same was settled and signed was mandatory and jurisdictional; that the time limit of 20 days could not, under Sec. 962, therefore, be retroactively extended by the trial court.

Six Justices concurred in the opinion and the remaining three dissented. In a dissent authored by Mr. Justice Davison, then Chief Justice, it was pointed out that it is provided in 12 O.S.1951 § 962, that 'the said court or judge, upon notice to the adverse party, and after hearing, may make such orders (extending time within which to appeal) after the expiration of the time fixed in the previous order, or time allowed by statute'. Mr. Justice Davison concluded that in view of the quoted language, the provision of Sec. 972 permitting an extension of time within which to appeal 'not to exceed six (6) months from the date of judgment', and since the appeal was filed within 6 months from rendition of the judgment, it was timely and properly perfected and therefore this Court had jurisdiction thereof. It was also pointed out that Norene E. Wanner did not perfect a cross-appeal challenging the May 11, 1956, order of the trial court; that said order therefore became final and binding upon her.

It should be noted that since our decision in the Wanner case, this Court has departed from the rule announced therein and has, in effect, adopted the view expressed in the dissenting opinion of Mr. Justice Davison. See DeWees v. Cedarbaum, Okl., 381 P.2d 830.

The parties apparently agree that while this Court had held prior to promulgation of the last mentioned opinion that under Sec. 972, supra, an appeal by casemade must be lodged within 20 days from date it is sttled and signed, we had never theretofore passed upon the issue presented in Wanner v. Wanner. This issue was whether upon notice to adverse party and for good cause shown, authority resides in a trial court under Sec. 962 to retroactively extend the mandatory 20-day period provided in Sec. 972 for here filing a casemade following settlement thereof and thereby nullify the effect of the prior settlement date.

After mandate had issued in the case, plaintiff paid the amount of the judgment of the trial court. Thereafter, he caused the instant action to be instituted against defendants to recover the amount paid. The action was premised upon the proposition that defendants were negligent in not filing the casemade within 20 days from date that it was settled and signed; that, as a result of such negligence, plaintiff was required to pay $4,300.00 to satisfy the judgment. The jury to whom the case was tried returned a verdict in plaintiff's favor for the amount that he paid under the judgment. Judgment on the verdict was entered in the amount of $4,300.00, together with interest from April 25, 1960, at 6% per annum.

From the order denying defendants' motion for new trial which was directed to the judgment, defendants perfected this appeal.

In support of the allegations of his petition, plaintiff introduced in evidence a copy of the first opinion in Wanner v. Wanner which had been withdrawn; a copy of the second and final opinion therein; mandate of this Court issued in connection with the last mentioned opinion and a copy of the supersedeas bond filed in the case. He proved payment of the judgment; that defendants represented plaintiff in trial of the case and on appeal; that defendant Collins recommended that an appeal be taken and...

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  • Worsham v. Nix, 100,750.
    • United States
    • Supreme Court of Oklahoma
    • September 19, 2006
    ...OK 79, ¶ 8, 989 P.2d at 452. (footnote omitted; emphasis deleted). In the First Syllabus by the Court in the case of Collins v. Wanner, 1963 OK 127, 382 P.2d 105, the Court stated: "[t]o authorize a recovery in damages against an attorney for negligence, not only must negligence be establis......
  • Manley v. Brown, 89,379.
    • United States
    • Supreme Court of Oklahoma
    • September 28, 1999
    ...CONTRACT, AND THE RIGHT TO DETERMINE FROM THEM IF THEY HAVE BEEN PAID FOR LABOR PERFORMED AND MATERIALS FURNISHED. (emphasis supplied). 6. 1963 OK 127, 382 P.2d 105, 7. Collins, supra note 6 at 108-09. 8. See Allred v. Rabon, 1977 OK 216, 572 P.2d 979, 981. 9. A precedent-setting opinion is......
  • Robinson v. Southerland, 101,000. Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.
    • United States
    • Supreme Court of Oklahoma
    • October 3, 2005
    ...for failing to anticipate how the uncertainty will ultimately be resolved. Manley, 1999 OK 79, ¶ 8, 989 P.2d at 452; Collins v. Wanner, 1963 OK 127, ¶ 0(2), 382 P.2d 105. So, where the evidentiary materials show an attorney's "mere error of judgment" in a "clouded state of the law," such th......
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    ...workers' compensation benefits received so as to guard against a double recovery by the injured worker). 8. See also, Collins v. Wanner, 1963 OK 127, 382 P.2d 105, 108 (citing Sutton v. Whiteside, 1924 OK 189, 101 Okla. 79, 222 P. 974, for the proposition that in order to prove damages in a......
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