Dierks v. Walsh
| Decision Date | 15 June 1946 |
| Docket Number | Case Number: 31941 |
| Citation | 165 P.2d 354,1946 OK 8,196 Okla. 372 |
| Parties | DIERKS et al v. WALSH |
| Court | Oklahoma Supreme Court |
¶0 1. PARTIES-Substitution as party plaintiff one having interest in cause of action where by mistake action brought in name of deceased person.
A person in esse, having a legal or beneficial interest in a cause of action, who, by inadvertence or mistake, brings an action in the name of another person, deceased, may amend to substitute the real party in interest (12 O. S. 1941 § 317) where the cause of action and defense remain the same.
2. JUDGMENT-Defense omitted properly denied in subsequent action.
Under 12 O. S. 1941 § 272, a defendant may plead in answer a multiplicity of defenses, whether legal or equitable, but if he omits a defense, it is denied to him in a subsequent action involving the same subject matter between the same parties.
Appeal from District Court, Pushmataha County; Geo. R. Childers, Judge.
Action by Edmond Walsh ( Gerald Walsh, substitute) against Herbert Dierks and another. Judgment for plaintiff, and defendants appeal. Affirmed.
Tom Finney, of Idabel, and Chas. E. McPherren, of Oklahoma City, for plaintiffs in error.
F. L. Welch, of Antlers, for defendant in error.
¶1 This is an appeal from an order denying a petition to vacate an alleged void judgment. The action was commenced September 9, 1937, in the name of Edmond Walsh as plaintiff against Herbert Dierks et al. to quiet title and for possession of 320 acres of land in Pushmataha county for the cancellation of a resale tax deed to the county and a subsequent county commissioners' deed conveying said land to Herbert Dierks.
¶2 Dierks denied generally the allegations of the petition, but admitted that Edmond Walsh was the owner of the land from January 2, 1917, until May, 1931, the date of the resale deed to the county. Dierks pleaded validity of the resale deed to the county, the county commissioners' deed to Dierks, dated August 7, 1933, and claimed to be the owner of the fee-simple title in and to the land; likewise, that defendant Dierks Lumber & Coal Company was the owner of such interest in the timber on the land theretofore held by the Choctaw Lumber Company. That interest was not specified.
¶3 Before trial, Gerald Walsh was substituted as plaintiff. Judgment was in favor of plaintiff and against defendants. By it, the resale tax deed and county commissioners' deed were canceled upon condition of payment of the amount paid for the commissions' deed and taxes paid on said land, with interest thereon at 6% per annum, amounting in all to $450.37. This sum plaintiff tendered in open court.
¶4 Defendants appealed, but the judgment was affirmed. Dierks et al. v. Walsh, 192 Okla. 584, 141 P.2d 95.
¶5 Before the mandate was issued, defendants (plaintiffs in error on appeal) were informed that four months before the time the action was commenced in the district court in the name of Edmond Walsh, without knowledge to them, he had departed this life, May 7, 1937. Plaintiffs in error sought a remand of the cause with directions to dismiss because the action was a nullity in that neither the district court nor this court could have jurisdiction of a deceased person. It was made to appear further that Edmond Walsh had, prior to commencement of the action, conveyed his interest in the land to Gerald Walsh, but that counsel for plaintiff did not seek substitution of Gerald Walsh as plaintiff but continued to prosecute the action in the name of Edmond Walsh for the benefit of Gerald Walsh.
¶6 The application or motion was denied and the mandate issued and recorded October 12, 1943.
¶7 Thereafter, on November 22, 1943, plaintiffs in error commenced this proceeding to vacate the judgment, and alleged that on October 9, 1936, when Edmond Walsh executed the quitclaim deed conveying the land to Gerald Walsh, Edmond Walsh had been out of possession of the land since November 28, 1928, when the land was sold to Pushmataha county for delinquent taxes, after which, in April, 1931, the county purchased said land at resale, and that Herbert Dierks, on August 7, 1932, purchased the land from the county; that by reason thereof Gerald Walsh secured no right, title, or interest by virtue of the quitclaim deed; and that the withholding of the facts concerning the death of Edmond Walsh was with the object wrongfully avoiding the defense of champerty.
¶8 Gerald Walsh, appearing as substituted party plaintiff, answered and alleged that Edmond Walsh was the record owner of the land at the time the suit was filed; that the attorney who filed the suit did not know that prior thereto Edmond Walsh had conveyed the land by unrecorded deed to his son, Gerald Walsh, who should have been named as party plaintiff, and that through mistake and inadvertence the suit was filed in the name of Edmond Walsh; that on the day of the trial, the attorney for Gerald Walsh, in open court, stated these facts to the court and the court, without objection, allowed Gerald Walsh to be substituted as party plaintiff; that upon trial the court found the tax title of defendants invalid; that on appeal the right of substitution of Gerald Walsh as plaintiff was determined, as well as the motion of defendants to recall the decision of this court. It was further alleged that the petition to vacate came too late in that it was not filed until November 22, 1943, and summons was not issued until April 10, 1944, and therefore this proceeding is barred by the statute of limitations, 2 O. S. 1941 § 1038.
¶9 Upon trial, the evidence consisted of the original judgment, the mandate, certified copy of the motion to withdraw opinion and decision in the former appeal, the order of this court denying said motion, and the order of the district court to spread the mandate of record. It was then stipulated:
¶10 Judgment was entered June 20, 1944. The trial court found:
". . . that the matters and things alleged as grounds for the said application and motion were considered and determined by the Supreme Court in the appeal on the part of the defendants from said judgment herein, and on that account the said application and motion should be overruled."
¶11 Judgment was entered accordingly. Defendants appeal, and urge: (1) That the action as filed in the name of Edmond Walsh, who was at the time deceased, was a nullity and that no action was or could be pending at the time the order was made substituting Gerald Walsh as plaintiff, and that no valid judgment could be rendered. (2) That aside from the fact that no action was pending, the substitution of Gerald Walsh as plaintiff was obtained by false representations to the effect that Gerald Walsh had succeeded to the interest of Edmond Walsh subsequently to the filing of the suit, and that thereby defendants were prevented from presenting the defense of champerty.
¶12 Under the first proposition, plaintiffs in error cite, as the alleged leading case, Brooks v. Boston & N. St. Ry. Co., 211 Mass. 277, 97 N. E. 760. There an action was commenced in the name of Louise N. Brooks for personal injuries when, at the time the action was commenced, Louise N. Brooks was deceased and no executor or administrator had been appointed. It was held that under a statute which authorized the court to allow any amendment in the matter of form or substance in any process, pleading, or proceeding which may enable the plaintiff to sustain the action for the cause for which it was intended to be brought, no amendment was permissible and no judgment could be entered for the reason that the proceedings were a nullity ab initio.
¶13 That case is not in point. The opinion itself distinguishes the case from that of Lewis v. Austin 144 Mass. 383, 11 N. E. 538, which is in point. There, a judgment was obtained in New York in favor of A, for the benefit of B. A having no beneficial interest in it. A died and thereafter his widow, whose initials were the same as those of A, was appointed his executrix and she assigned the judgment to B. with specific authority to sue on the judgment in her name as executrix. B thereafter commenced an action in Massachusetts on the judgment, in the name of A who was then deceased. Amendment was allowed, substituting A's widow (executrix) as plaintiff and adding an allegation that the action was brought for the benefit of B. It was held that the trial court had power to allow the amendment. In the opinion it is said that B was the real plaintiff and:
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