Gordon v. Followell

• Decision Date: 31 March 1964
• Docket Number: No. 40678,40678
• Citation: 1964 OK 74,391 P.2d 242
• Parties: Ben GORDON, Petitioner, v. Clyde M. FOLLOWELL, Supernumerary District Judge, assigned to the District Court of McIntosh County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 242

391 P.2d 242

1964 OK 74

Ben GORDON, Petitioner, v. Clyde M. FOLLOWELL, Supernumerary District Judge, assigned to the District Court of McIntosh County Oklahoma, Respondent.

No. 40678.

Supreme Court of Oklahoma.

March 31, 1964.

Syllabus by the Court

1. In order to invoke the jurisdiction of the court under the declaratory judgments act there must be an actual, existing justiciable controversy between parties

having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute.

2. Prohibition is a proper remedy to arrest the action of an inferior court where a proper showing has been made that such court is proceeding in a cause without jurisdiction.

Application by Ben Gordon for this court to assume original jurisdiction and grant a writ of prohibition against the respondent, Clyde M. Followell, Supernumerary Judge assigned to the District Court of McIntoash County, preventing him from proceeding further in a certain action for declaratory relief. Application and writ granted.

Kenneth W. Lackey, Eufaula, for petitioner.

Stipe, Gossett & Stipe, McAlester, Milam M. King, Checotah, for respondent.

JACKSON, Justice.

This is an application by petitioner, Ben Gordon, for this court to assume original jurisdiction for the purpose of issuing a writ of prohibition against the respondent judge, preventing him from proceeding further in a certain action filed in the District Court of McIntosh County under the Oklahoma Declaratory Judgments Act, 12 O.S.1961, § 1651 et seq.

The petition for declaratory judgment alleges that in 1962, while Bessie Gammel was under guardianship and suffering from cancer in its terminal stages, she entered into a purported marriage with Ben Gordon, and that she died about four months later. The plaintiffs in the declaratory judgment action are the former guardian of Bessie Gammel and two of her brothers. Their petition attacks the validity of the marriage on that ground that she was mentally and physically incapable of entering into the marriage relation; it alleges that the marriage was 'conceived in fraud with a design on the part of Ben Gordon to qualify as an heir for the sole and only purpose of enriching himself'; and the court is asked to declare the marriage void from its inception.

The record shows that the petition for declaratory judgment was filed on Feb. 8, 1963, and that three days later, a petition for the probate of her will was filed in county court. We are informed in oral argument that the will originally offered was denied admission to probate; that a will of later date was admitted and a special administrator appointed; and that the order admitting the later will is now on appeal to the district court.

In view of the conclusion reached hereinafter, it will be unnecessary to set out in detail the various arguments made by the parties.

The Uniform Declaratory Judgments Act, or its substantial equivalent, has been adopted in about 40 states. The Oklahoma Act is substantially the same as the uniform act. See in this connection, Fraser, Oklahoma's Declaratory Judgment Act, 32 OBJ 1447; 9A Uniform Laws Annotated, page 1. Since the Oklahoma act is comparatively new and there is no case law construing it, a reference to the cases from jurisdictions having adopted the uniform act will be helpful. All of the cases hereinafter referred to are from jurisdictions having adopted the uniform act.

Under the Oklahoma act, the jurisdiction of district and superior courts to award declaratory relief is expressly limited to 'cases of actual controversy.' 12 O.S.1961 § 1651. Although the uniform act does not in express terms so limit the giving of declaratory relief, appellate courts of the states having adopted it, practically without exception, follow the same rule. Petition of Capital Bank and Trust Co., 336 Pa. 108, 6 A.2d 790; Langer v. State, 69 N.D. 129, 284 N.W. 238; Atkinson v. Sapperstein, 191 Md. 301, 60 A.2d 737; Application of Van Syckle, 118 N.J.L. 578, 194 A. 284; Illinois Power Co. v. Miller, 11 Ill.App.2d 296, 137 N.E.2d 78; Povey v. School Committee of Medford, 333 Mass. 70, 127 N.E.2d 925; Freiberg v. Schloss, Ohio Prob., 112 N.E.2d 352; State ex rel. Smith v. Haveland, 223 Minn. 89, 25 N.W.2d 474, 174 A.L.R. 544; State ex rel. Ekern v. Dammann, 215 Wis. 394, 254 N.W. 759; Kahin v. Lewis, 42 Wash.2d 897, 259 P.2d 420; Recall Bennett Committee v. Bennett, 196 Or. 299, 249 P.2d 479; Kress v. Corey, 65 Nev. 1, 189 P.2d 352; Anderson v. Wyoming Development Co., 60 Wyo. 417, 154 P.2d 318; Brunton v. United States National Bank of Denver, 97 Colo. 47, 47 P.2d 395; Lide v. Mears, 231 N.C. 111, 56 S.E.2d 404; Joseph v. National Bank of West Virginia, 124 W.Va. 500, 21 S.E.2d 141; Lang v. City of Mobile, 239 Ala. 331, 195 So. 248; Halpert v. Oleksy, Fla., 65 So.2d 762; Jones v. National Bank of Commerce in Memphis, 193 Tenn. 126, 244 S.W.2d 430.

In Kahin v. Lewis, 42 Wash.2d 897, 259 P.2d 420, the Washington court said:

'This court has many times held that in order to invoke the jurisdiction of the court under the declaratory judgment act there must be an actual existing justiciable controvery between parties having opposing interests, which interests must be direct and substantial, and involve an actual, as distinguished from a possible, potential or contingent dispute. * * *'

In Kress v. Corey, 65 Nev. 1, 189 P.2d 352, the Nevada court quoted with approval as follows from Declaratory Judgments, Borchard, pages 26 and 27:

'The requisite precedent facts or conditions which the courts generally hold must exist in order that declaratory relief may be obtained may be summarized as follows: (1) there must exist a justiciable controversy; that is to say, a controversy in which a claim of right is asserted against one who has an interest in contesting it; (2) the controversy must be between persons whose interests are adverse; (3) the party seeking declaratory relief must have a legal interest in the controversy, that is to say, a legally protectible interest; and (4) the issue involved in the controversy must...