Flynn v. Vanderslice
| Decision Date | 05 March 1935 |
| Docket Number | 22847. |
| Citation | 44 P.2d 967,172 Okla. 320,1935 OK 201 |
| Parties | FLYNN v. VANDERSLICE et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 21, 1935.
Syllabus by the Court.
1. Section 592, O. S. 1931, requires that, in action for the recovery of real property, it shall be necessary for plaintiff to set forth in detail the facts relied upon to establish his claim, and to attach to his petition copies of all deeds or other evidences of title, as in actions upon written contracts; and in such cases all of the facts pleaded will be considered in determining the sufficiency of the petition on demurrer.
2. Petition examined, and held that it does not state a cause of action to construe or interpret a will, or to distinguish between valid and void dispositions, or to determine pretermitted rights.
3. Where, upon an appeal from the probate jurisdiction of the county court to the district court, the pleadings in the cause, with the journal entry of judgment signed by the county judge, together with the notice of appeal and appeal bond, approved by the county judge, are brought into the district court with the papers in the cause, and treated as a transcript, under such circumstances as to charge the parties with participation in that procedure, following the decision in the early case of Petrie v. Coulter, 10 Okl. 257 61 P. 1058, it is held that the district court obtained jurisdiction of the appeal, and that the order of the district court dismissing the appeal for want of prosecution is not void for lack of jurisdiction.
4. Where the county court, having jurisdiction of the probate of a will, admits such will to probate, and such order and judgment become final, it cannot be attacked collaterally in the district court in a suit in ejectment brought by the heirs to dispossess the devisees under the will of real estate devised to them by the terms of such will.
5. Statutory remedies to vacate judgment exclude relief by direct suit in equity, unless statutory procedure is inadequate.
Appeal from District Court, Murray County; Tom P. Pace, Judge.
Action by Eliza Flynn against Jacob Vanderslice and others, in ejectment and damages. Demurrer to petition of plaintiff sustained and case dismissed, and plaintiff appeals.
Affirmed.
Rehearing denied; OSBORN, V. C.J., disqualified and not participating BUSBY, J., not participating.
R. E Bowling, of Pauls Valley, for plaintiff in error.
Blanton Osborn & Curtis, of Pauls Valley, and J. T. Wheeler, of Wynnewood, for defendants in error.
This is an action in ejectment, commenced October 18, 1930, in the district court of Murray county, by the plaintiff in error Eliza Flynn, as plaintiff, against the defendants in error Jacob Vanderslice, Rebecca A. Vanderslice, Maulsie Beula Stone, née Vanderslice, Robert J. Vanderslice, and Mary Pairlee Tate, née Vanderslice, as defendants.
In her petition in the district court, basing her claim of title upon inheritance from her father, Robert J. Vanderslice, deceased, plaintiff sought to recover an undivided one-sixth interest in a large amount of real property. The petition alleged that the defendant Rebecca A. Vanderslice was the widow of the said decedent, and that the other defendants were his remaining children; and that plaintiff and defendants were the sole and only heirs at law of her father. Plaintiff alleged that an instrument had been admitted to probate, in the county court of Murray county, as the last will and testament of her father; and in her petition she sought to recover as an heir in disregard of the provisions of that instrument. She based her claim of title upon heirship, an allegation that her father died intestate, and the following further allegations quoted from her petition, to wit: "Plaintiff alleges and states that the said Robert J. Vanderslice left no will that she can in any way discover; that the purported will offered for probate was not the last will and testament of the said Robert J. Vanderslice and has never been determined as such by the court; that no final judgment has been rendered in the matter."
In her petition below, in addition to her said allegations as to the title of both plaintiff and defendants, as the basis of her claim of right to maintain ejectment, plaintiff alleged that she was prevented from attending the hearing in the county court for probate of her father's will by her reliance upon an unperformed representation and promise of defendants and proponents of the will, to the effect that the will would not be probated at such hearing, but that the executors would be appointed administrators and the estate divided equally among the heirs; that after she learned that the will had been probated and executors appointed she instituted in the county court a post-probate contest of the will, and had appealed to the district court from an order and judgment of the county court denying her contest; and that on such appeal no transcript of the record in the county court having been filed in the district court, and the court clerk having docketed the appeal and treated the original county court papers as a transcript, the appealed cause came on for trial in the district court some three months after the appeal was taken, and that that court, upon refusal of plaintiff to proceed because no transcript had been filed, dismissed the appeal for want of prosecution. The petition then alleged that, after the dismissal of her said appeal, plaintiff procured a transcript of the record of the county court in the matter of her contest, and filed it in the district court.
The petition of plaintiff in the action below further alleged that the order of the district court in the probate case dismissing her appeal from the county court order denying her contest of the will was without jurisdiction and void, because no transcript of the case in the county court had been filed in the district court prior to the dismissal; that that appeal, therefore, is still pending in the district court, by reason of which there has been no binding order probating the will; that plaintiff has called the above facts to the attention of the county court by objection to that court proceeding with the probate administration, and to the attention of the district court by motion to vacate the order dismissing the appeal, and by motion to vacate the same; that notwithstanding these facts, the county court is proceeding with the administration; and that the premises considered, she is entitled to maintain the ejectment action without regard to the alleged will and the proceedings in the probate case.
In her petition in this case plaintiff did not allege upon what grounds she based her contest of her father's will, nor whether she had appealed from the orders dismissing her appeal and denying her motions to vacate and for a new trial.
The present case comes to this court on appeal by plaintiff from an order of the district court sustaining a demurrer filed by defendants to the petition in ejectment, and dismissing the ejectment action upon election of plaintiff to stand upon her petition.
Plaintiff in error says that the district court sustained the demurrer to her petition because of her allegations in connection with the alleged will and probate proceedings in the matter of the estate of her father; and she contends that, this being an ejectment action and her petition containing the usual general allegations of title, and right to and withholding of possession, her more detailed and particular allegations should not be considered in determining the sufficiency of her petition.
It was formerly the law in Oklahoma that in an ejectment action plaintiff need not set forth in detail the facts relied upon to establish his claim. Frazier v. Nichols, 50 Okl. 41, 150 P. 711. Even under the statute as it so formerly existed, it had been properly held that where, in an action of ejectment, the plaintiff sees fit, in setting forth statutory requirements of a cause of action, in addition thereto, to set out the title and source of title of each of the parties, and a demurrer is filed to such pleading, upon consideration of such demurrer all of the facts pleaded were to be considered in determining its sufficiency. Jones v. Carnes, 17 Okl. 470, 87 P. 652. However, the statute as it formerly existed was changed by section 467, Compiled Oklahoma Statutes 1921, now section 592, O. S. 1931. Following, quoting and applying to an ejectment action the latter statute, in the case of Taylor et al. v. Campbell, 139 Okl. 110, 281 P. 243, 244, this court announced what is now the proper rule in this state, as follows: "Section 467, C. O. S. 1921, requires that, in an action for the recovery of real property, it shall be necessary for plaintiff to detail the facts relied upon to establish his claim, and to attach to his petition copies of all deeds or other evidences of title, and that the allegations of his petition be established by competent evidence whether answer be filed or not."
Applying that rule in the present case, all the facts pleaded in the petition of plaintiff will be considered in determining its sufficiency on demurrer.
The brief of plaintiff in this court cites decisions of this court to the effect that in proceedings to probate a will the only issue triable is the factum of the will, or the question of devisavit vel non, and dealing with the relative power or lack of power of the county and the district courts in proper forms of action to construe or interpret wills, to distinguish between valid and void dispositions, and to determine the rights of pretermitted children; and the brief contends that such cases dispose of the feature of the demurrer which raises the question of the effect of the probate...
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