Cont'l Gin Co. v. Arnold

• Decision Date: 15 February 1916
• Docket Number: Case Number: 6031
• Citation: 1916 OK 214,66 Okla. 132,167 P. 613
• Parties: CONTINENTAL GIN CO. v. ARNOLD.
• Court: Oklahoma Supreme Court

1916 OK 214

167 P. 613

66 Okla. 132

CONTINENTAL GIN CO. v. ARNOLD.

Case Number: 6031

Supreme Court of Oklahoma

Decided: February 15, 1916

Syllabus

¶0 1. Judgment--Vacation--Time--Statute. While great discretion is allowed the trial court in the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same was rendered or made, yet the court is without jurisdiction, at a subsequent term, to take any steps toward vacating or modifying a judgment or order of the court, unless there is a substantial compliance with the terms of the statute.

2. Same--Default Judgment--Mistake. A showing that the attorney for the defendant was Absent from his office in the discharge of his professional duties and mistook the date of the expiration of the time given him to plead to plaintiff's petition, and understood that the cause would not be assigned for trial at that term, is not sufficient to authorize the vacating of a judgment after the term had lapsed, said judgment having been entered by default.

3. Same--Vacation of Void Judgment--Term. A void judgment may be vacated at any time on motion of any interested party. The fact that the term of court at which the judgment was rendered had expired does not serve to give a void judgment any standing. It may be attacked at any time upon motion or collaterally.

4. Process--Publication--Affidavit -- Validity. Where it is stated, in an affidavit to obtain service by publication, that a defendant is a non-resident of the state, and service cannot be had upon him within the state, and such affidavit is otherwise sufficient, it is not void or voidable because facts are not stated therein showing that plaintiff by the use of due diligence was unable to make service of summons upon the defendant.

5. Mortgages---Proceedings to Cancel Record--Action in Rem. An action to cancel a real estate mortgage of record is an action in rem.

6. Mortgages---Failure to Release--Action in Personam. An action for the statutory penalty for failure to release a satisfied mortgage of record is an action in personam.

7. Courts--Local Action. Not every action growing out of transactions concerning real property is local. Where the decree sought is to operate on the person, and not upon the real property, the location of the property indirectly affected is not material.

8. Judgment--Personal Judgment--Validity Process. No valid personal judgment can be obtained against a party unless he is personally served with process within the state or voluntarily enters his appearance.

9. Judgment--Separable Cause of Action--Validity--Want of Jurisdiction. An action was instituted against a nonresident corporation, which had not designated an agent within the state upon whom service of summons could be had; service was made by publication. The petition contained two counts. The first count stated an action in rem, and the second count stated an action in personam. There was no voluntary appearance. Judgment was entered upon both counts by default. Held, the joining of the two causes of action, the one being maintainable, and the other not, in the same petition, will not operate to vitiate the entire procedure, but that the cause of action set forth in the first count in the petition was properly maintained and the judgment rendered therein, canceling the mortgage of record as prayed for, valid and regular, but that the cause of action set forth in the second count of the petition could not be maintained against a nonresident defendant, and the judgment rendered thereon was void for lack of jurisdiction.

10. New Trial--Review of Motion to Set Aside Judgment. A motion for a new trial to review the order of the court denying a motion to set aside a judgment is unauthorized by statute, and an appeal from an order denying such a motion would be a nullity.

11. Appearance--Waiver of Summons. No summons was issued by defendant upon the filing of its motion to set aside the judgment. The plaintiff appeared at the hearing upon the motion and participated therein. This operated as a waiver of the issuance and service of summons.

Chas. H. Garnett, for plaintiff in error.

Sigler & Howard, for defendant in error.

MATHEWS, C.

¶1 Unless the judgment entered against defendant by default was absolutely void, no relief can be granted it. The statutes prescribe the procedure to be followed to have judgments vacated, and one seeking such relief must comply with the prescribed statutory procedure. It will be noted the judgment complained of was entered on the 7th day of February, 1913, and defendant's attorney was apprised of that fact the next day. That term of court expired on the last day of that month, but the motion to vacate the judgment was not filed until March 24, 1913. Section 5035, Rev. Laws 1910, prescribes the time when the application for a new trial must be made and is as follows:

"The application for a new trial must be made at the term the verdict, report or decision is rendered, and except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered unless unavoidably prevented."

¶2 Section 5267, Rev. Laws 1910, prescribes the grounds and procedure for vacating and modifying judgments in the district court, and is as follows:

"The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: First. By granting a new trial for the cause, within the time and in the manner prescribed in section 5035. Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in section 4728. Third. For mistake, neglect or omission of the clerk, or irregularity in obtaining the judgment or order. Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order. Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings. Sixth. For the death of one of the parties before the judgment in the action. Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending. Eighth. For errors in a judgment, shown by an infant in twelve months after arriving at full age, as prescribed in section 5142. Ninth. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment."

¶3 In the case of Hawkins v. Hawkins, 52 Okla. 786, 153 P. 844, this court, in discussing this statute, said:

"This statute has been frequently construed by this court and the law is well settled that, while great discretion is allowed the trial court in the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same were rendered or made, yet the court is without jurisdiction, at a subsequent term, to take any steps towards vacating or modifying a judgment or order of the court, unless there is a substantial compliance with the terms of the statute. McAdams v. Latham, 21 Okla. 511, 96 P. 584. In the case last cited plaintiff had judgment at the same term, but after the statutory time for filing a motion for new trial had expired, the court permitted a motion for new trial to be filed, and granted defendant a new trial of the cause. At a succeeding term, upon the motion of the plaintiff, the trial court set aside the order granting a new trial of the cause. This court in passing upon the correctness of the last order says: 'The plaintiff failing to appeal from the order granting a new trial, after the expiration of the term at which final judgment was entered, there must be a substantial compliance with the statute to give the court further jurisdiction to modify, vacate, or set aside any judgment rendered at a preceding term.' McKee v. Howard, 38 Okla. 422. 134 P. 44; Lookabaugh v. Cooper, 5 Okla. 102, 48 P. 99; Long v. Board of County Commissioners, 5 Okla. 128, 47 P. 1063; Anderson v. Chrisman, 37 Okla. 73, 130 P. 539.'

¶4 The defendant has failed to bring its case within the provisions of section 5035, Rev. Laws 1910, because his motion was not made until after the term in which the judgment was rendered had lapsed. Neither does it come within the provisions of section 4728. Nor was there any irregularity in obtaining the verdict shown, and the conduct of the clerk did not occasion it. No fraud upon the part of the plaintiff was advanced as a reason for the default, and the facts shown at the hearing did not disclose any unavoidable casualty or misfortune justifying the default. In fact the defendant did not bring itself within any of the provisions !aid down in said section 5267. The only excuse for not pleading to the amended petition within the 20 days given it for that purpose, as shown by the affidavit filed at the hearing, was that the attorney was absent from his office in the discharge of his professional duties in other matters, and mistook the date of the expiration of time given him to plead, and that he understood that the cause would not be assigned for trial at said February term. It is plainly apparent that this is not a sufficient showing to authorize the vacating of a judgment after the term had adjourned. If the same had been filed within the term while the court still had discretionary power over the judgment, no doubt the court would, and perhaps should, have vacated the same upon the showing made, but after the term had lapsed the court could act only as authorized by statute and within the provisions of the statute, and the ruling of the court in refusing to vacate the verdict was...