Gray v. Gray

• Decision Date: 09 September 1969
• Docket Number: No. 41934,41934
• Citation: 1969 OK 125,459 P.2d 181
• Court: Oklahoma Supreme Court
• Parties: J. W. GRAY, Plaintiff in Error, v. Roy C. GRAY, Executor of the Estate of James Gray, deceased, Roy C. Gray, individually, Ethel Gray Murray and Gladys Gray Wilson, Defendants in Error.

Page 181

459 P.2d 181

J. W. GRAY, Plaintiff in Error, v. Roy C. GRAY, Executor of the Estate of James Gray, deceased Roy C. Gray, individually, Ethel Gray Murray and Gladys Gray Wilson, Defendants in Error.

No. 41934.

Supreme Court of Oklahoma.

Sept. 9, 1969.

Rehearing Denied Oct. 7, 1969.

Syllabus by the Court

1. Where a defendant appears specially and objects to the jurisdiction of the court by reason of defective service of summons, and his motion to quash the service is denied, he may file his answer and proceed with the trial, and this will not be held a general appearance; but where, in his answer, he asks for affirmative relief, it is a general appearance, and he thereby waives all objections to the service of the summons, and subjects himself to the jurisdiction of the court for all purposes.

2. Whether an appearance is general or special does not depend upon the form of the pleading, but upon its substance. If a defendant invokes the judgment of the court upon any question, except that of the power of the court of hear and decide the cause, his appearance is general.

3. A complaining party has the burden of showing the prejudicial effect of testimony erroneously excluded, where such prejudice is not apparent on the face of the record.

4. In an action of equitable cognizance the Supreme Court will examine the entire record and weigh the evidence but will not reverse the trial court unless the judgment is clearly against the weight of the evidence.

Appeal from District Court of Washington County; Layton L. Doty, Judge.

Action by plaintiffs, including deceased grantor, to cancel deeds. Trial court decreed cancellation of deeds and grantee appeals. Affirmed.

Daniel Bassett, Bartlesville, for plaintiff in error.

Garrison, Preston, Preston & Brown, by Denzil D. Garrison, Bartlesville, for defendants in error.

BERRY, Vice Chief Justice.

This is an appeal from a judgment cancelling warranty deeds executed by James Gray, transferring grantor's real property to plaintiff in error, one of grantor's four children. The succeeding narrative sufficiently discloses the factual background from which evolved the matters presented on appeal.

The action was commenced December 11, 1964, by James Gray, just prior to his 96th birthday (January 1, 1965), joined by three of his children as plaintiffs, against another son as defendant. One deed had been executed by James Gray October 25, 1965, conveying valuable business property to defendant with a life estate reserved in grantor. A similar conveyance had been executed December 18, 1963, conveying grantor's homestead. On October 9, 1964, the business property was destroyed by fire, and that day defendant placed both deeds of record. Upon learning this James Gray immediately executed two warranty deeds, conveying this property to his four children in equal shares, with a life estate reserved. Contemporaneously, grantor also executed a will, admitted to probate during pendency of this action, under which his property was devised in equal shares to the four children, all parties to this action.

On December 11, 1964, plaintiffs brought this action for cancellation, alleging execution of the deeds had been obtained by fraud, imposition and undue influence. The same date affidavit for service by publication, signed by James Gray as plaintiff, issued to defendant, resident of Corpus Christi, Texas. Plaintiffs' attorneys completed proof of mailing on December 15, 1964, and that day filed and mailed Notice To Take Depositions. Defendant admittedly received publication notice and copy of the petition, and the deposition notice, but made no appearance when James Gray's deposition was taken December 24, 1964.

Plaintiff, James Gray, died January 27, 1965, shortly after his 96th birthday, and the day following defendant's filing special appearance and motion to quash publication service in his own name. This motion was denied, and on February 26th further special appearance was filed, denying the court's jurisdiction of the subject matter or defendant's person because of asserted failure of publication. Motion for revivor of the action was filed March 12th, and the same day defendant's special appearance and denial of jurisdiction was overruled and time allowed to plead. March 25th the cause was revived in the name of Roy C. Gray, executor, and on April 8th defendant again appeared specially denying jurisdiction of the court over defendant or subject matter of the action on grounds of failure of summons, and also moved to quash alias summons.

On June 9, 1965, a lengthy answer was filed by defendant in his own name. This pleading denied the court's jurisdiction over defendant or subject matter of the action, objected to further proceedings, and stated, in part:

'* * * That this defendant further alleges that said deeds and each of them, were made, executed and delivered by the said James Gray for good, lawful, valid and sufficient consideration, which consideration was furnished and given to said James Gray by this defendant J. W. Gray in return for making of said deeds and each of them. That said consideration so furnished and given by this defendant and received by the said James Gray to his benefit, consisted of the care and nurture by this defendant of the person of the said James Gray and his infirm wife, Delia Gray, now deceased, all of which had involved and did involve serious detriment to the business of J. W. Gray in Corpus Christi, Texas, and the considerable sacrifice of the time of said J. W. Gray, all of which the said James Gray desired to compensate; and further consisted of the devotion of said J. W. Gray, of his attention, company and time and filial love and affection, all to the satisfaction of the wants, wishes and needs of the said James Gray during his lifetime and at the specific instance and request of the said James Gray. That a further consideration for the making of said deeds was the parental affection on the part of the grantor, and his parental gratitude to J. W. Gray, his son, for the care and devotion of said son during a time when the other children of James Gray had failed or declined to furnish their care and devotion to him, their father. And defendant specifically denies that the making, execution or delivery of said deeds or either of them was upon any other condition, either precedent or subsequent.

'* * *

'This defendant further shows the court that, by reason of the filing of this action, The plaintiffs, Roy C. Gray, Ethel Gray Murray and Gladys Gray Wilson, and the decedent plaintiff, James Gray, Have imposed a false cloud upon the title of this defendant to the real estate properties and premises described in plaintiffs' petition and shown in the exhibits attached thereto; that this defendant is entitled to have this case dismissed.

'* * * that this case be dismissed by the court for the reason this court has no jurisdiction of the person of this defendant, or of the subject matter of this suit, Or upon the ground that no cause of action exists or can be proved in favor of plaintiffs and against this defendant.' (Emphasis ours.)

The issues were formed by plaintiffs' reply and the trial court heard the matter (April 23, 1965) on defendant's motions, based upon asserted lack of summons. After hearing the trial court overruled both the motion to quash summons and special appearance for purpose of denying jurisdiction. Prior to trial defendant presented a further motion attacking the court's jurisdiction and requesting dismissal, and a motion to suppress the deposition. These motions were overruled and the matter proceded to trial December 22, 1965.

James Gray, hereafter referred to as deceased, and his wife Delia were parents of four children involved. In 1957 deceased was 88 years old. His wife was 83, senile, incompetent, and in need of nursing care. Deceased was requesting the children to furnish personal care. One daughter (Wilson) left her home in another state and cared for the parents some nine months. Plaintiffs Roy Gray and Mrs. Murray resided in Bartlesville but declined to furnish the requisite care. Defendant and his wife, residents of Texas, came to the family home to care for the parents. According to defendant's records they expended 33,000 working hours, in addition to defendant's handling of deceased's business affairs, including preparation of legal instruments and a power of attorney which deceased was prevailed upon to sign.

Deceased and his wife owned substantial business interests in Bartlesville. For a time Roy Gray administered Delia's affairs as her guardian. Friction developed in 1962 from deceased's refusal to provide needed medical and nursing care, and culminated in a mental health proceeding. By this means deceased was removed from the premises until Delia could be hospitalized, and then was released from custody. Deceased became angry with Roy for his action, and Mrs. Murray who had not signed the petition. After being forbidden to return to the home late in 1962, Roy resigned as guardian. After that time defendant and his wife handled affairs in the home.

The deeds involved were executed late in 1963. While visiting defendant's home in Texas deceased met a lady who eventually came to Bartlesville and stayed with the Grays. In 1964 deceased quarreled with defendant concerning the housekeeper and defendant returned to Texas. Three days before the business property burned defendant returned to Bartlesville, and these deeds were recorded just after the fire occurred. Defendant testified the deeds were filed in order to protect his claim upon proceeds of fire insurance upon the building.

The evidence shows deceased was a strong willed, demanding individual. It is also apparent deceased believed, or was led to believe, the other children did not care enough for deceased to respond to the request for personal care, although he threatened to remove to his state of nativity to seek care from...