Great American Ins. Co. v. Keswater

• Court: Oklahoma Supreme Court
• Writing for the Court: DIFFENDAFFER, C. PER CURIAM.
• Citation: Great American Ins. Co. v. Keswater, 268 P. 258, 131 Okla. 196, 1928 OK 393 (Okla. 1928)
• Decision Date: 12 June 1928
• Docket Number: 18125.
• Parties: GREAT AMERICAN INS. CO. v. KESWATER et al.

268 P. 258

131 Okla. 196, 1928 OK 393

GREAT AMERICAN INS. CO. v. KESWATER et al.

No. 18125.

Supreme Court of Oklahoma

June 12, 1928

Syllabus by the Court.

Where a petition states defectively a cause of action, if the allegations are sufficient to challenge the attention of the court and invoke its judicial action to determine the sufficiency thereof, a judgment rendered thereon by default against a defendant, who has been properly served with summons, is not void, upon its face.

Where one who has a claim against an insurance company for a loss under a fire insurance policy appoints a third person as his attorney in fact, for him, and in his name, place, and stead and to his use, to do anything in and about the settlement of the loss, with full power to do anything whatsoever requisite and necessary to be done in the premises, such power of attorney does not confer authority on the attorney in fact to institute suit in his own name, as attorney in fact for such claimant.

Under the provisions of section 209 every action must be prosecuted in the name of the real party in interest, except as otherwise provided in article 5, c. 3, C. O. S. 1921.

The prosecution of an action in the name of an attorney in fact as plaintiff, instead of in the name of the real party in interest, and obtaining a judgment therein by default, is an irregularity, and such judgment should be vacated on application of defendant, filed within the term.

The district court has no power to modify its judgment upon motion filed after the adjournment of the term at which such judgment was rendered and entered, except in such cases where it is necessary to make the judgment entered conform to the judgment actually pronounced.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Roger Mills County; T. P. Clay, Judge.

Action by Arthur H. Keswater, as attorney in fact for Charles I Shears, against the Great American Insurance Company. Default judgment for plaintiff. From an order denying defendant's petition to set aside the judgment, defendant appeals. Reversed and remanded, with directions.

Rittenhouse Lee, Webster & Rittenhouse, of Oklahoma City, for plaintiff in error.

A. A. Brown, of Cheyenne, and Hardie & Grim, of Norman, for defendants in error.

DIFFENDAFFER C.

From the record, it appears that on June 16, 1925, the Great American Insurance Company issued a fire insurance policy to Charles I. Shears, insuring against loss or damage by fire a certain ice plant consisting of a building, machinery, etc., located in Strong City, Okl., in the sum of $8,000. Shears lived at Norman, Okl., and on or about the 10th day of July, 1925, while said policy was in force, the ice plant, machinery, etc., was destroyed by fire. On July 18, 1925, Shears executed to one Arthur H. Keswater of Cheyenne, Okl., a power of attorney, whereby he constituted and appointed Keswater as his lawful attorney, for him and in his name, place, and stead, and to his use, to do anything in and about the settlement of the loss occasioned by the fire and to fully adjust with the insurance company any loss under the policy, and granting him as his attorney in fact full power to do anything whatsoever requisite necessary to be done in the premises as fully as he himself could do if personally present, with full power of substitution, etc.

Keswater, as such attorney in fact, not being able to effect a settlement with the company, on January 30, 1926, filed suit against the company in the district court of Roger Mills county. The action was entitled: "Arthur H. Keswater, as Attorney in Fact for Charles I. Shears, Plaintiff, v. Great Western Insurance Company, a Corporation, Defendant," and alleged in part as follows:

"Comes now the plaintiff, and, for his cause of action against the defendant, alleges and states: (1) That he is the duly appointed attorney in fact for Charles I. Shears, as is more fully shown by Exhibit A hereto attached, and as such attorney in fact has authority to bring the action."

Exhibit A, attached to the petition, was a copy of the power of attorney, signed and acknowledged by Shears. Then follows the usual allegations in an action of this kind setting out a cause of action upon the policy. Upon this petition, summons was issued directed to the sheriff of Roger Mills county, which was served by delivering a copy thereof to one H. E. Rupp, an agent of the company having power to countersign policies, residing in that county. Defendant company did not answer or otherwise plead, and on March 3, 1925, the court rendered default judgment in favor of the plaintiff and against the company for the sum of $7,750 and costs. Execution was thereafter issued and delivered to the state insurance commissioner on June 3, 1926. June 15, 1926, at the same term, the insurance company filed its petition and motion to vacate the judgment and recall execution, alleging as grounds therefor: First, fraud and irregularity upon the part of plaintiff and his attorney in procuring the judgment; second, that the judgment is void upon the face of the record in that the petition wholly failed to state a cause of action; and for the further reason that the petition shows upon its face that Arthur H. Keswater is not the real party in interest, and that the purported cause of action set forth in the petition was not in the said Arthur H. Keswater, individually or as attorney in fact, but was in Charles I. Shears solely and exclusively.

It is also alleged in the petition and motion to vacate that the petition upon which the judgment was based wholly failed to state a cause of action in that it shows upon its face that no proof of loss was furnished by the assured in the manner and form required by the policy, and for the further reason that the petition wholly failed to state a cause of action in that it failed to allege the replacement value of the property alleged to have been destroyed by fire, and failed to allege that the purported refusal of the company to settle the loss was within 60 days after the date of the alleged loss. The petition to vacate alleges that the insurance company has a good and valid defense, as set out in an answer thereto attached as a part thereof.

To the petition to vacate, defendant in error Arthur H. Keswater, attorney in fact for Charles I. Shears, filed as his answer a general denial.

The issues, as thus joined, were tried to the court on the 29th day of July, 1926, during the same term; and after hearing the evidence the court took the matter under advisement until the 6th of September, the first day of the next term. On that date, and before the court announced its decision, Charles I. Shears, over the objection of the insurance company, filed a motion, which is, omitting the caption, as follows:

"Comes now Charles I. Shears, the principal for whose benefit this action was instituted, and adopts the acts of his said attorney in fact, Arthur H. Keswater, in instituting this action, as his own acts, and moved the court to substitute his name as plaintiff in place of the name of Arthur H. Keswater." Thereupon the court sustained the motion of Charles I. Shears, and denied the petition to vacate the judgment. From which rulings and orders the insurance company. after motion for new trial was filed and overruled, prosecutes this appeal.

Two propositions are presented by plaintiff in error. The first proposition is that the judgment is void on its face, for the reason that the petition upon which default judgment was taken wholly failed to state a cause of action, and that the court erred in rendering default judgment thereon and in denying the motion of plaintiff in error to vacate the judgment.

It is first urged that the petition was fatally defective in that nowhere therein is the value of the property at the time of the fire, or loss, or the cost of replacement, alleged. The petition does not in direct terms allege the value of the property at the time of the fire, but does allege: That the plaintiff's loss by reason of the fire was: "Destruction of the building, $2,000; destruction of the tools, machinery, and equipment, $9,389.18"-making a total loss by plaintiff of $11,389.18. That an itemized statement of the machinery, tools, equipment and accessories, together with the value thereof, is attached hereto, marked Exhibit C. Exhibit C referred to shows items and their values, totaling more than $12,000.

We think the petition in this respect was sufficient to bring it within the rule announced in Wagner v. Lucas, 79 Okl. 231, 193 P. 421; Gibson v. Dizney, 72 Okl. 69, 178 P. 124; and Stauffer v. Watts, 73 Okl. 68, 174 P. 1031.

In the latter case, it was held:

"Despite the fact that the petition may be defective in stating a cause of action, if the relief

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