Goins v. Fox

• Decision Date: 12 November 1958
• Docket Number: No. 38013,38013
• Citation: 332 P.2d 220
• Parties: Robert Eugene GOINS and Margaret Louise Goins, Plaintiffs in Error, v. John M. FOX, Earl B. Oakes, Jr., and Lloyd G. Larkin, Defendants in Error.
• Court: Oklahoma Supreme Court

Page 220

332 P.2d 220

1958 OK 266

Robert Eugene GOINS and Margaret Louise Goins, Plaintiffs in Error, v. John M. FOX, Earl B. Oakes, Jr., and Lloyd G. Larkin,

Defendants in Error.

No. 38013.

Supreme Court of Oklahoma.

Nov. 12, 1958.

Syllabus by the Court

1. The Court may dismiss an action without prejudice where plaintiff fails or refuses to comply with an order concerning the proceedings (12 O.S.1951 § 683), but it is error to dismiss an action on such ground with or without prejudice, where no such order or violation thereof is made in the particular case.

2. Record examined and held, that the trial court erred in dismissing plaintiffs' action.

Appeal from the District Court of Tulsa County; Eben L. Taylor, Judge.

An action to cancel certain instruments and recover a sum of money alleged to have been obtained from plaintiffs by defendants by fraudulent means. Action dismissed with prejudice for failure of plaintiffs to comply with court order concerning the proceedings.

Vural L. Gilley, Tulsa, for plaintiffs in error.

Larkin & Hamilton, Tulsa, for defendants in error.

CARLILE, Justice.

This action was instituted by Robert E. Goins and Margaret Louise Goins against John M. Fox, Earl B. Oakes, Jr., and Lloyd G. Larkin to cancel a note, chattel mortgage and lease and to recover $6,800.00 alleged to have been obtained from plaintiffs by the defendants by false and fraudulent means. The defendants first filed a motion to quash summons which was overruled and they were given 15 days to answer, but instead filed a motion to dismiss the action with prejudice which motion alleges in substance that the action is brought for the sole purpose of vexing, harassing and embarrassing the defendants, that it is the fourth action filed by plaintiffs on petitions that are identical or substantially the same, one of such actions was filed in the Court of Common Pleas, that the three previous actions were dismissed by plaintiffs after hearing on defendants' motion to make the petitions more definite and certain or to strike portions and were filed under new numbers without compliance with the previous orders of the court regarding amendment. That the dismissal and refiling of an action without compliance with court order constitutes a collateral attack on the orders of the court and is an abuse of its process, that the defendants, Fox and Oakes, have been forced to defend themselves upon substantially identical pleadings in three previous actions, the defendant Larkin having been named as defendant only in the present case, that defendants have no adequate legal remedy to terminate the harassing litigation.

After a hearing thereon, the motion to dismiss was sustained as follows:

'It Is Therefore Ordered, Adjudged and Decreed that the motion of defendants be sustained and the cause of action herein is hereby dismissed with prejudice to further action and plaintiffs and each of them are hereby enjoined and restrained from filing any further action against said defendants based upon the subject matter of the cause herein.'

Plaintiffs excepted and gave notice of appeal on the original record and filed their petition in error herein.

The parties will be referred to here as they were in the District Court.

Plaintiffs' first and principal ground for reversal of the order is that the trial court had no authority to dismiss their action with prejudice and erred in so doing. They call attention to 12 O.S.1951 § 683, which provides: 'An action may be dismissed, without prejudice to a future action, * * * Fifth, By the court, for disobedience by plaintiff of an order concerning the proceedings in the action.'

The opinion in Shinn v. Morris, 205 Okl. 289, 237 P.2d 455, 456, states:

'(1) A party has an absolute right to dismiss an action under the provisions of Sec. 684, Title 12 O.S., 1941, upon payment of costs, at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the action. Such voluntary dismissal operates to terminate the jurisdiction of the court over the subject matter of the action. Wood v. Hines, 117 Okl. 86, 245 P. 846.'

No statute or decision is cited as authority for dismissal of the plaintiffs' action with prejudice. The defendants in their brief admit that ordinarily when an order requiring amendment is not complied with by plaintiffs the suit ought to be dismissed without prejudice as held in Commonwealth Co. v. Lowenhaupt, 179 Okl. 557, 66 P.2d 1064, but asserts that the right of the trial court to dismiss the present action was not founded upon any statute and should be sustained because of the broad...