Freeman v. Bryant
| Citation | 1919 OK 261,184 P. 76,76 Okla. 51 |
| Decision Date | 19 September 1919 |
| Docket Number | Case Number: 10506 |
| Parties | FREEMAN v. BRYANT. |
| Court | Supreme Court of Oklahoma |
¶0 1. Courts--Transfer of Cause--Jurisdiction.
Where an order of removal of a cause from one court to another is made, the former court is thereby divested of jurisdiction and the jurisdiction of the latter court attaches and the cause proceeds as if originally instituted there.
2. Same--Objections to Transfer--Waiver--Estoppel.
Where a case has been transferred from one court to another, the parties are bound to take notice of the transfer and the subsequent proceedings had therein by the court to which said transfer is made. And when any of such parties go to trial in the court to which the transfer is made, or indulge in any conduct inconsistent with an intention to insist upon any impropriety of such transfer, said parties waive any objection to the propriety of the transfer and are also estopped to deny that the court to which the case is transferred has jurisdiction to try the cause.
3. Judgment--Vacation--Transfer of Cause --Lost Records.
Where a suit has been filed in the superior court and where such court on application ordered that said cause be transferred to the district court of the county, in accordance with the provisions of section 15, chap. 20. Session Laws of Oklahoma of 1915, jurisdiction of said cause is thereby divested out of such superior court and vested in the district court, and the latter becomes fully vested with power to proceed with the trial of said cause to a final determination thereof in said court. And where it appears that the district court took jurisdiction of said case, ordered that the lost records in said case be substituted, that said substitution was made by the parties and said case proceeded to a trial thereof upon the merits, and final orders judgments and decrees rendered therein by said court; and that said court thereafter adjourned for the term and that no appeal was taken from such final judgments, orders and decrees, but that more than four months after the adjournment of said term and during a subsequent term of said court and when n different judge was presiding attorneys for the losing party presented an unverified motion to vacate, dismiss and set aside and hold for naught the proceedings theretofore had in said case for the reason that the court acquired no jurisdiction over the person or subject-matter involved in said suit, stating that there had been no such case pending in the district court within the county, and for the further reasons, to wit: Said action was begun in the superior court, that transfer was ordered therein but no transfer of the files, records and proceedings had in the superior court was ever lodged or filed with the clerk of the district court, (2) said files having never been supplied or substituted as required by law, (3) that under the conditions of the record as it now stands it would be impossible for the defendant in said case to make or serve case-made therein or to prosecute an appeal to the Supreme Court from the judgment rendered herein, there being no records in the district clerk's office of any of the proceedings had in the superior court, either original or substituted, and no proper certification of the proceedings in the superior clerk's office or the superior court showing that any such proceedings had ever been had in the superior court; and said court over the objections of the adverse party proceeded to take testimony in support of said motion, and at the conclusion of such hearing sustained said motion, giving as his reason therefor that the court finds and holds that the order of the superior court transferring said cause and directing the clerk to make up the record and certify same to this court, was never complied with, that the records were lost in the superior court and were never supplied either in that court or the district court, and that therefore the court had no jurisdiction to hear and determine the cause --held, such procedure is not a compliance with, or authorized by Revised Laws of Oklahoma, 1910, sections 5267, 5268, 5269, 5270 and 5271.
4. Same--Proceeding to Vacate.
While great discretion is allowed the trial court in the control of its judgments and orders, and in the exercise of its power to vacate or modify the same at the term at which the same were rendered or made, yet the court is without jurisdiction, at a subsequent term, to take any steps toward vacating or modifying a judgment or order of the court, unless there is a substantial compliance with the terms of the statute.
Error from District Court, Tulsa County; Conn Linn, Judge.
Action by Anna Freeman, administrator, against E. Norris Bryant. From a judgment vacating a judgment for plaintiff, she brings error. Reversed and remanded.
I. H. Spears, for plaintiff in error.
Poe & Lundy, for defendant in error.
¶1 Mahalia J. Mitchell, deceased, had before her death contracted with the Berry-Hart Real Estate Company, agents for T. E. Smiley, trustee, for the purchase of lots 1 and 2, block 7, Fairview Addition to Tulsa, Oklahoma. The consideration was payable in monthly installments. After paying all of said consideration except a balance of $ 48.50 her circumstances became such that for the time being she was unable to meet the payments, and she thereupon turned said contract over to E. Norris Bryant, who, it was alleged in the petition, held himself out to the public as being one who would take up contracts of poor people who were behind in their payments on property.
¶2 The record discloses that said E. Norris Bryant paid the balance due on the property, $ 48.50, and took the deed from T. E. Smiley, trustee, in his own name, and proceeded to collect the rents from said property. The jury found (1) that said deed was not intended to sell and convey, but (2) was made to secure money advanced and was to be considered as a mortgage, and (3) that no consideration whatever had been advanced by E. Norris Bryant to said Mahalia J. Mitchell. The jury further found that said E. Norris Bryant had received in rents from said premises the sum of $ 192.00.
¶3 The court in its judgment adopted the findings of the jury, made other and further findings and ordered the title and possession of said property forever quieted in the heirs at law of Mahalia J. Mitchell, and directed said E. Norris Bryant to make and execute a deed to same in favor of said heirs.
¶4 Originally this case was filed in the superior court of Tulsa county, but, application having been made to transfer same to the district court, same was ordered transferred to the district court. Journal entry of the order of transfer was filed July 19, 1917, and on August 7, 1917, notation was made on the appearance docket of the superior court to the effect that the case had been transferred to the district court. The files in the case were completely lost, and on October 12, 1917, application was made to the district court to supply lost files, and an order was made authorizing plaintiff to supply the pleadings. This was done, and the defendant on February 2, 1918, filed an amended answer and cross-petition, in which he asked affirmative relief against the plaintiff. Thereafter, the trial was had as aforesaid, and judgment rendered June 27, 1918.
¶5 On December 9, 1918, defendant filed motion to vacate, dismiss, and set aside said judgment on the ground that the court had acquired no jurisdiction over the person or subject-matter involved in said suit, and, on the same day, the court sustained the motion on the ground that the court was without jurisdiction to try and determine the issues of fact and law in said action, and therefore ordered said judgment set aside and vacated, and the cause dismissed.
¶6 It is from this judgment of the court, in which defendant's motion to vacate and set aside the former judgment was sustained, that this appeal has been prosecuted. While there are eight assignments of error urged in this appeal, there are but two important questions presented. It will readily be seen that one issue involved and before this court is the question of jurisdiction of the district court to render the former judgment. That was the question decided by the district court in its judgment subsequently entered, and it is around this question that the arguments in the briefs of the parties is centered. Therefore we will discuss that proposition first.
¶7 Section 15, chapter 20, Session Laws of Oklahoma, 1915, provides, among other things:
¶8 Besides granting the power and authority of transfer, two things are evident under this statute: (1) that the cause, when so transferred, stands for trial in the court to which it has been transferred as if it had been originally filed therein, and (2) it is the clerk's duty to see that the files are properly transferred from one court to the other. In the case at bar the court clerk was acting in the double capacity of clerk of both courts, the superior court and the district court. Yet be failed to do his duty, in this instance, as an officer of either court.
¶9 That the order of transfer was made by the superior court is uncontroverted. This order divested the superior court jurisdiction and the jurisdiction of the district court attached and the cause proceeded as if originally instituted there. 15 C. J. 1150, sec. 625; Ex parte Copeland, 5 Okla. Crim. 551, 115 P. 627. And the parties were...
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