Greco v. Foster
| Decision Date | 02 February 1954 |
| Docket Number | No. 34906,34906 |
| Citation | 1954 OK 42,268 P.2d 215 |
| Parties | GRECO v. FOSTER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Service by summons or notice as provided by statute is a requisite step to obtain jurisdiction of the person of a defendant and where a party to a pending action subpoenas another as a witness, who testifies in pursuance of such process, the court is without jurisdiction to render judgment in said proceedings, as against said witness.
2. The court may determine any controversy between the parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a determination of the controversy cannot be had without the presence of other parties, the court must order them to be brought in, pursuant to the provisions of Title 12 O.S.1951 § 236.
Carmon C. Harris, Oklahoma City, for plaintiff in error.
Earl E. James, Oklahoma City, for defendant in error.
This action was commenced on August 20, 1947, by Homer Foster, defendant in error, hereinafter referred to as the plaintiff, against Rosalie J. Foster and Joe S. Greco, hereinafter referred to as the defendants. Plaintiff alleged in his petition that he was the owner and in possession of the following real estate:
Part of W 1/2 of NW 1/4 of Section 8, Township 12 North, Range 2 West, being N 1/2 of Tract No. 5, Oklahoma County, State of Oklahoma,
and that the defendants had purchased the same for him as his agents, with money furnished by him, and that the defendants wrongfully and with preconceived design and intent to defraud him, took the legal title in their own name; he prayed judgment that he be decreed to be the owner of the property, and that the title thereto be quieted. In a second cause of action he alleged that the defendant Rosalie J. Foster had been the plaintiff in case No. D-55582 in the District Court of Oklahoma County, wherein he, Homer Foster, had been the defendant, and alleged that the defendant Joe S. Greco had appeared therein, testified as a witness, and had supervised and directed the prosecution of the case; and that therein the court had rendered a judgment for $1800 in his favor, and against the defendant Rosalie J. Foster, and had ordered that said judgment be a lien on the aforesaid real estate, and directed execution. He then alleged that because of the participation of the defendant Joe S. Greco, in said cause No. D-55582, that the said Joe S. Greco became and was bound by the judgment therein. The plaintiff's prayed judgment in the alternative, that if denied relief on his first cause of action, that he be granted relief on his second cause, foreclosing his lien on the aforesaid property.
On September 27, 1947, Rosalie J. Foster filed her general denial to plaintiff's petition, and on October 18, 1947, Joe S. Greco filed a general denial by way of answer, and filed a cross-petition against the plaintiff Homer Foster.
In his cross-petition Greco alleged that he was the owner of a 1/2 undivided interest in the aforesaid property, and that the plaintiff had no right, title or interest therein, or lien thereon; he further alleged that he had not been a party to the aforesaid case No. D-55582 in the District Court of Oklahoma County, and that the judgment therein was not binding upon him, and had no effect on his title to a 1/2 interest in the real estate. Greco prayed judgment quieting the title to a 1/2 interest in the real estate in himself. Thereafter and on April 19, 1950, the plaintiff filed a denial by way of reply, but dio not plead to Greco's cross-petition. While this case was pending and on March 8, 1948, the plaintiff caused execution to be issued in case No. D-55582, under which the sheriff of Oklahoma County levied on the aforesaid real estate and advertised it for sale; the defendant Greco then filed in this case an application to have the sheriff joined as a defendant, and to enjoin him and the plaintiff from proceeding with the execution; this application was denied on March 9, 1948.
On June 29, 1950, the case was called for trial, and after presenting a motion for judgment on the pleadings, which was overruled, the plaintiff offered in evidence certain of the files and proceedings, including the Journal Entry, in case No. D-55582, which were admitted by the court, without objection. An examination of this evidence discloses that case No. D-55582 was a divorce action, in which the defendant Rosalie J. Foster was plaintiff and the plaintiff Homer Foster was defendant. That in her petition so filed in the District Court of Oklahoma County, Rosalie J. Foster, after stating a cause of action for divorce on the grounds of extreme cruelty, alleged:
'That the family residence is 5500 N.E. 63rd Street, which property was purchased by the plaintiff and her father, each owning an undivided one-half ( 1/2) interest therein * * *,' and she therein prayed judgment for divorce, custody, child support, and that she be decreed to be the owner of the aforesaid real estate. The plaintiff Homer Foster filed his answer to this petition, and with regard to the aforesaid real estate alleged:
'* * * that the family residence at 5500 N.E. 63rd Street, Oklahoma City, Oklahoma was purchased by the defendant (Homer Foster) and plaintiff (Rosalie J. Foster) as their home, and that the plaintiff (Rosalie J. Foster) by preconceived design of herself and her father placed the title of the said property in the name of the plaintiff (Rosalie J. Foster) and her father (Joe S. Greco), for the sole purpose of defeating any claim that the said defendant (Homer Foster) might have; that said property was purchased with part of the money of the plaintiff (Rosalie J. Foster) and out of the funds that were obtained by plaintiff from the sale of bonds which were purchased for the child of the parties hereto, by plaintiff and defendant.'
The plaintiff Homer Foster then prayed judgment for an equitable division of property.
The issues in said case No. D-55582 being thus joined, it appears that the case was set for trial on August 18, 1947, and the defendant Homer Foster caused Joe S. Greco to be subpoenaed as a witness for the defendant Homer Foster. The case was tried and on August 19, 1947, the court rendered judgment therein, granting Rosalie J. Foster a divorce, child support and attorneys fee, but also granting Homer Foster a judgment for $1800 against the said Rosalie J. Foster; the Journal Entry with regard thereto being as follows:
'The Court further finds that the defendant (Homer Foster) has advanced the plaintiff (Rosalie J. Foster) Thirty Six Hundred ($3600.00) Dollars, in addition to support money, and that the plaintiff should have saved said money and instead the plaintiff wrongfully spent the same in connection with her father, Joe Greco, in the purchase of a home; said premises being located at 5500 N. E. 63rd Street, Oklahoma City, Oklahoma, and being legally described as follows: * * *.
'The Court further finds that the defendant is entitled to have judgment against the plaintiff in the sum of Eighteen Hundred ($1800.00) Dollars, and that said judgment should be made a lien upon the foregoing property; that the same should be paid within a reasonable time, and if unpaid within a reasonable time, then special execution shall issue, * * *.
'The Court further finds that Joe Greco, the father of the plaintiff herein, (Rosalie J. Foster) appeared in court and testified on behalf of the plaintiff, concerning his property rights in the real estate of the parties hereto, and that the said Joe Greco participated in and supervised the prosecution of said law-suit; and therefore should be bound by this judgment and lien relating to the property herein involved. * * *
After the introduction of the Journal Entry, the trial court made the following statement:
...
To continue reading
Request your trial
-
Shamblin v. Beasley
...supra note 31 at 719; Shaw v. Swank, 1966 OK 114, 416 P.2d 928, 931; Kiespert v. Jenkins, 1958 OK 92, 324 P.2d 283, 284; Greco v. Foster, 1954 OK 42, 268 P.2d 215, 219. 51 Generally, a letter placed in the mail is presumed to have been received. When a letter is sent by post, properly addre......
-
Petition of University Hospitals Authority
...Brown, The Law of Personal Property (3rd Ed.) 114-115 (1975). 7 State v. Moore, 167 Okl. 28, 27 P.2d 1048, 1052 (1933). 8 Greco v. Foster, Okl., 268 P.2d 215, 220 (1954). 9 Underside v. Lathrop, 1982 OK 57, 645 P.2d 514, 516 n. 10 TXO v. Oklahoma Corp. Com'n., 1992 OK 39, 829 P.2d 964, 968 ......
-
PFL Life Ins. Co. v. Franklin
...336-337; Wagoner v. Saunier, 1981 OK 17, 627 P.2d 428, 430; Wilsey, Bennett Co. v. Grant, 1981 OK 68, 632 P.2d 382, 386; Greco v. Foster, 1954 OK 42, 268 P.2d 215, 218.3 The three-judge panel's January 23, 1996 order states in pertinent part:" * * *II. MODIFIED TO ALLOW FOR THE ADDITION OF ......
-
Wilson v. City of Tulsa, 99,443.
...polygraph examinations. Wilson had control of the arbitration since he made the decision about whether to pursue lost wages. See Greco v. Foster, 1954 OK 42, ¶ 17, 268 P.2d 215, 220 ("[A] person not a party to the action, but who participates and who has control of and directs the litigatio......