Ellis v. Akers

• Decision Date: 06 February 1912
• Docket Number: Case Number: 1616
• Citation: 121 P. 258,32 Okla. 96,1912 OK 127
• Parties: ELLIS v. AKERS et al.
• Court: Oklahoma Supreme Court

1912 OK 127

121 P. 258

32 Okla. 96

ELLIS v. AKERS et al.

Case Number: 1616

Supreme Court of Oklahoma

Decided: February 6, 1912

Syllabus

¶0 INJUNCTION -- Justices of the Peace -- Adequate Remedy at Law -- Judgment--Validity. A. obtained a judgment against E. in the justice court, but E. for some reason failed to appeal. After the time for appeal had elapsed, he brought suit in the district court to enjoin the issuance and service of an execution on said judgment on the ground that the same was void, for the reason that the justice did not "immediately," after the verdict of the jury, enter the judgment in his docket. Held:

(a) Injunction will not lie, for the reason that he had an adequate remedy at law by way of appeal, which was not denied him on account of fraud, mistake of fact, accident, or some unavoidable casualty, or any act of the opposite party.

(b) The judgment, for the reason complained of, was voidable only, and not void, and in such case equity will not interfere or attempt to reform it.

Error from District Court, Texas County; R. H. Loofbourrow, Judge.

Action by G. L. Ellis against J. A. Akers, W. H. Castleberry, and William Edens to enjoin an execution. Judgment for the defendants, and plaintiff brings error. Affirmed.

Wm. M. Clark, for plaintiff in error.

ROBERTSON, C.

¶1 Plaintiff in error, who was plaintiff below, filed his petition against defendants in error in the district court of Texas county on the 29th day of October, 1909, and thereby sought to enjoin the collection of a judgment in the sum of $ 25, entered on June 22, 1909, before W. H. Castleberry, justice of the peace, of Hooker township, Texas county, Okla., on a bill of particulars filed by John A. Akers against G. L. Ellis. Ellis appealed from said judgment to the district court, where, on motion of Akers, the appeal was dismissed. Thereafter he filed suit in the district court to enjoin the issuance of an execution on said judgment of the justice of the peace. At the trial defendants objected to the introduction of evidence, for that the petition did not state facts sufficient to warrant the court in granting the relief sought. This objection was sustained, and the petition was dismissed. Thereafter plaintiff filed a "motion to set aside the order or judgment, and for a rehearing in the case," which motion was supported by a number of affidavits. Thereafter, on March 26, 1910, the said motion was overruled by the court, and "thirty days was allowed the plaintiff to file his appeal in the Supreme Court of the state of Oklahoma." Plaintiff in error seeks to review said judgment of the district court, and has filed in this court his petition in error, to which is attached a purported transcript. The defendants in error have filed no brief; nor have they made any appearance.

¶2 The transcript is defective, not being prepared and certified in compliance with rule 16 of this court (20 Okla. x, 95 P. vii); but, even though there were no objections to the sufficiency of the same, we are not permitted to consider the alleged errors of the trial court, for the reason that none, except the sufficiency of the petition, is presented for review by this court by the transcript. Section 5939, Comp. Laws 1909, reads:

"The record shall be made up from the petition, process, return, the pleadings subsequent thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court," etc.

¶3 In Tribal Development Co. et al. v. White Bros. et al., 28 Okla. 525, 114 P. 736, it is said:

"Under this statute, it has been held that motions and orders thereon are not part of the record proper, and can be made part of the appeal record only by bill of exceptions or case-made; the ruling being stated in the case of Menten v. Shuttee et al., 11 Okla. 381, 67 P. 478, as follows: 'Motions presented in the trial court, the rulings thereon, and exceptions are not properly part of the record, and can only be preserved and presented for review on appeal by incorporating the same into a bill of exceptions or case-made. The record proper in a civil action consists of the petition, answer, reply, demurrers, process, rulings, orders, and judgment; and incorporating motions, affidavits, or other papers into a transcript will not constitute them a part of the record, unless made so by a bill of exceptions. Motions and proceedings which are not part of the record proper can only be presented for review by incorporating them into a case- made, or by preserving them by bill of exceptions and embracing them in the transcript.'"

¶4 To the same effect, see McMechan v. Christy, 3 Okla. 301, 41 P. 382; Black v. Kuhn, 6 Okla. 87, 50 P. 80; Kingman & Co. Pixley, 7 Okla. 351, 54 P. 494; McCarthy v. Bentley, 16 Okla. 19, 83 P. 713; Devault et al. v. Merchants' Exch. Co., 22 Okla. 624, 98 P. 342; Green et al. v. Incorporated Town of Yeager, 23 Okla. 128, 99 P. 906; Davis v. Lammers et al., 23 Okla. 338, 100 P. 514; Lamb et al. v. Young et al., 24 Okla. 614, 104 P. 335; Leforce v. Andrews et al., 4 Indian Terr. 96, 69 S.W. 812.

¶5 The only question presented by the record for the consideration of the court is the sufficiency of the petition as filed in the lower court. From an examination of the same, it appears that Akers sued Ellis before Castleberry, a justice of the peace, for damages for wrongfully interfering with his (Akers) business, which was that of an auctioneer. A trial was had before a jury, and a verdict was rendered, June 19, 1909, in favor of Akers, and against Ellis, the sum of $ 25. Ellis attempted to appeal to the district court, where, on motion of defendants, said appeal was dismissed. There is no question raised as to the jurisdiction of the justice of the peace over the subject-matter of the controversy or the persons of the parties. The only point urged by Ellis is that the judgment is void, for that the verdict was returned by the jury on June 19, 1909; whereas, the justice of the peace did not enter the same in his docket until June 22, 1909. This is denied by the answer of the defendants. However, we will not discuss this proposition at this time; for the case must turn on the question of whether or not injunction is the proper relief, admitting, for the sake of argument, the irregularity of the justice of the peace in entering the judgment.

¶6 In 1813 Chief Justice Marshall, in Marine Ins. Co. v. Hodgson, 7 Cranch 332, 3 L. Ed. 362, said:

"It may with equal safety be laid down as a general rule that defense cannot be set up in equity which has been fully and fairly decided at law, although it may be the opinion of that court that the defense ought to have been

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