Deen v. Fruehauf Corp., 48768

• Decision Date: 15 February 1977
• Docket Number: No. 48768,48768
• Citation: 562 P.2d 505,1977 OK 27
• Parties: Billie Juanita DEEN, Appellee, v. FRUEHAUF CORPORATION et al., Defendants, Robert R. Worthington, Intervenor-Appellant.
• Court: Oklahoma Supreme Court

Page 505

562 P.2d 505

Billie Juanita DEEN, Appellee, v. FRUEHAUF CORPORATION et al., Defendants Robert R. Worthington, Intervenor-Appellant.

No. 48768.

Supreme Court of Oklahoma.

Feb. 15, 1977.

As Corrected on Denial of Rehearing April 18, 1977.

Stephen C. Wolfe, Tulsa, for appellee.

Washington & Washington by George Washington, Jr., Tulsa, for intervenor-appellant.

BERRY, Justice:

This action arose out of injuries to Billie Juanita Deen and her children, David Wesley and Catherine Sue, residents of Texas, in the collision of automobile she was driving, with truck of defendant, Fruehauf Corporation, in Atoka, Oklahoma, on December 17, 1971. Billie Juanita Deen, for herself and children, plaintiffs herein, entered into a contract with appellant, Worthington, (intervenor) a Texas attorney, whereby he was assigned 40% Of recovery in return for his agreement to represent them. Mrs. Deen's husband, Melvin, although not named in contract or in car at time of collision, also signed the agreement.

However, plaintiffs discharged Worthington before suit was filed and employed an Oklahoma lawyer. In January 1975 Worthington filed a Petition to Intervene in the actions, alleging the contract with Deens and seeking 40% Of judgment therein.

Plaintiffs responded with a pleading entitled 'Motion to Quash, Plea to Jurisdiction and Venue, and Motion to Strike', asking that Petition in Intervention be dismissed. The motion was heard in February 1975, taken under advisement, and on July 10, 1975, an order was entered sustaining the pleading. Intervenor instituted timely appeal. On June 30, 1976, judgment was entered for plaintiffs in amount of $74,000.00, apparently as a result of settlement, and tendered into court by defendant. This Court has heretofore ordered that 40% Of judgment be held by trial court pending appeal.

Intervenor first contends that trial court erred in sustaining plaintiffs' pleading because it was improper. However, although plaintiffs entitled the pleading 'Motion to Quash, Plea to Jurisdiction and Venue, and Motion to Strike', the substance was to dismiss Petition to Intervene. In Thomas v. Dawson, 189 Okl. 193, 115 P.2d 136, we held:

'The effect of a pleading is to be determined from its substance rather than the title affixed by the pleader. An instrument denominated a motion to quash but which in reality is a demurrer is properly so treated by the trial court and will be considered in the same manner by this court on appeal.'

However, a motion to dismiss is a proper procedure for attacking petition to intervene. Barnett v. Bodley, Okl., 348 P.2d 502, and cases cited therein. Therefore, intervenor's contention is without merit.

Intervenor next contends that trial court was required to allow his intervention. He does not argue that trial court abused its discretion. Intervention is a matter of right when petitioner claims an interest in specific property within exclusive jurisdiction of the court and the interest can be protected in no other way; otherwise intervention is within the discretion of trial courts. Barnett v. Bodley, supra; Franklin v. Margay Oil Corporation, 194 Okl. 519, 153 P.2d 486. See...