Davis v. Rowland

• Decision Date: 01 April 1952
• Docket Number: No. 34260,34260
• Citation: 207 Okla. 19,246 P.2d 376
• Parties: DAVIS v. ROWLAND.
• Court: Oklahoma Supreme Court

Page 376

246 P.2d 376

207 Okla. 19

DAVIS v. ROWLAND.

No. 34260.

Supreme Court of Oklahoma.

April 1, 1952.

Rehearing Denied July 29, 1952.

Syllabus by the Court

1. The institution of a proceeding in error in the Supreme Court to reverse an order vacating judgment does not of itself, without a supersedeas bond and without an order of the trial court or the Supreme Court staying proceedings, operate to suspend further proceedings in the case in the court below.

2. The pendency of a prior action or suit for the same cause or causes, between the same parties, in a court of competent jurisdiction, will abate a later action or suit, vexations to defendant, in a court of the same jurisdiction, where the issue is properly raised.

Sigler & Jackson, Paul Frame, Ardmore, for plaintiff in error.

George & George, Ardmore, for defendant in error.

DAVISON, Justice.

This is a suit brought by Ida May Rowland, as plaintiff, against A. D. Davis and numerous other parties, as defendants, to cancel an outstanding resale tax deed and to quiet her title to a one half undivided interest in the oil, gas and other minerals underlying a 140 acre tract of land in Carter County, Oklahoma. It involves the same factual background as cause No. 33,872 in this court, styled Davis v. Rowland, 242 P.2d 716.

On June 21, 1946, in cause No. 28,288, in the District Court of Carter County, A. D. Davis obtained a judgment by default, quieting his title to certain real estate, founded upon a resale tax deed, as against Ida May Rowland and her husband, W. H. Rowland, and many other defendants. On September 1, 1948, Ida May Rowland, individually and as executrix of the estate of W. H. Rowland, filed a motion therein to vacate said judgment as void, because of the invalidity of the service by publication. On September 9, 1948, that motion was sustained and the judgment of June 21, 1946, was vacated. Without staying the effect of the order vacating judgment, either by bond or order, A. D. Davis appealed therefrom to this court and the same is numbered 33,872 in this court and is above referred to.

Five months before filing the said motion to vacate judgment and on March 31, 1948, Ida May Rowland, as plaintiff, instituted the instant case in the same district court, seeking to quiet title to a one half undivided interest in the oil, gas and other minerals underlying the same real estate involved in the other case, as against the said A. D. Davis and many others, as defendants. After his motion to make more definite and certain and his demurrer were overruled, Davis filed answer setting up the judgment of March 21, 1946, in cause No. 28,288. By reply, Mrs. Rowland pleaded the same facts and relied upon the same propositions of law that she subsequently incorporated in the motion to vacate judgment which was filed in case No. 28,288 as above referred to. After the judgment in that case was vacated and on February 15, 1949, Mrs. Rowland filed therein a Supplemental Motion to Vacate Judgment, based upon the provisions of Title 12 O.S.1941 § 176. The appeal in that case had theretofore, on October 28, 1948, been lodged in this court.

On March 16, 1949, the instant case was called for trial and Davis objected to going to trial for the reason that the same issues were involved as in case No. 28,288 which was then pending in this court on appeal opposite number 33,872. His objection was overruled and exception saved. The cause proceeded to trial, resulting in a judgment for plaintiff quieting her title to a one half undivided interest in the oil, gas and other minerals, underlying said premises, and vacating the judgment in case No. 28,288 as to her and her husband. From this judgment A. D. Davis has perfected this appeal.

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