Green v. James, Case Number: 19706

CourtSupreme Court of Oklahoma
Citation296 P. 743,1931 OK 75,147 Okla. 273
Docket NumberCase Number: 19706
PartiesGREEN et al. v. JAMES et al.
Decision Date10 March 1931

1931 OK 75
296 P. 743
147 Okla. 273

GREEN et al.
JAMES et al.

Case Number: 19706

Supreme Court of Oklahoma

Decided: March 10, 1931


¶0 1. Judgment--Lack of Notice to Defendant or Attorney as to Setting of Case not Ground for Vacating Judgment.

"It is not a sufficient ground upon which to vacate a judgment that neither defendant nor his attorney of record was notified of the time that the case was set for trial." Wilson v. Porter, 94 Okla. 259, 221 P. 713.

2. Divorce -- Verification of Petition not Jurisdictional.

"The verification of the petition in an action for divorce, as provided for by section 503, C. O. S. 1921, is not jurisdictional, and the failure to verify is waived if no objection is made and the cause proceeds to trial on the merits." Javine v. Javine, 134 Okla. 283, 273 P. 267.

3. Appeal and Error--Briefs--Necessity for Argument and Citation of Authorities.

An assignment of error supported neither by authorities nor argument will not be considered by this court.

4. Equity--Refusal of Relief Where Parties Equally in Wrong as to Fraudulent Contract.

If a contract has been entered into through fraud, or to accomplish any fraudulent purpose, a court of equity will not, at the suit of one of the fraudulent parties--a participes doli--while the agreement is still executory, either compel its execution or decree its cancellation, nor after it has been executed, set it aside, and thus restore the plaintiff to the property or other interests which he has fraudulently transferred. Equity will leave such parties in exactly the position in which they have placed themselves, refusing all affirmative aid to either of the fraudulent parties.

5. Divorce--Collusive Decree not Void.

A decree of divorce, though procured by collusion of the parties is not void, on that account--at most it is voidable.

6. Same--Estoppel of Party to Attack Decree.

A decree of divorce will not be set aside at the instance of a party who has been guilty of laches in applying for relief. "One who accepts the benefits and privileges of a divorce decree by a remarriage, even though the decree be void for want of jurisdiction, is estopped from thereafter assailing such decree." Cummings v. Huddleston, 99 Okla. 195, 226 P. 104.

Error from District Court, Seminole County; George C. Orump, Judge.

Robert Burns and Biggers, Wilson & Aldridge, for plaintiffs in error.

B. F. Davis, J. A. Patterson, and Edgar A. DeMeules, for defendants in error.


¶1 On December 17, 1926, Lizzie Green, formerly Lizzie Dial, commenced this action in the district court of Seminole county on behalf of herself and as guardian of Leola Dial, her minor child, and against Mose James, Annie E. James, J. A. Patterson, personally and as trustee, the Indian Territory Illuminating Oil Company, a corporation, Foster Petroleum, and Amerada Petroleum Corporation. Plaintiff sought vacation of a decree and judgment in divorce rendered in said court March 17, 1914, dissolving the marriage relation theretofore existing between Lizzie Dial and Raford Dial, now deceased.

¶2 Raford Dial, during his lifetime, owned the S.E. 1/4 of section 24, township 9 N., range 6 E., Seminole county, Okla. Shortly after the decree of divorce he conveyed the described real estate to Annie E. James. The other defendants acquired various interests in said lands, the oil companies' interests being oil and gas mining leases. The judgment of the trial court was for defendants. quieting their respective interests. Plaintiff appealed, but failed to serve case-made upon the oil companies. Thereafter when confronted with motion to dismiss for such failure, plaintiff dismissed as to the oil companies.

¶3 On September 16, 1913, Raford Dial filed his petition for divorce against Lizzie Dial, based upon the ground of abandonment. The petition was signed by "W. H. Bishop, Attorney for Plf," and "Raford Dial." The verification was attempted in this manner:

"Subscribed and sworn to before me this the 16th day of Sept. 1913. W. E. Harber, Notary Public. (Seal) My Commission expires: Dec. 18, 1916."

¶4 Lizzie Dial answered, claiming plaintiff had abandoned her, alleged the existence of one child, Leola May Dial, born June 1, 1912, of which the plaintiff was the father, but whom plaintiff had not supported, alleged that plaintiff was an enrolled freedman of the Seminole Tribe of Indians, and owned the land heretofore described, and prayed for $ 25 per month for the support of their minor child; prayed, further, that plaintiff's petition be denied, "but that if the court should think it to the best interest of all parties concerned that said parties be divorced, that so much of the property of said plaintiff be set off to said defendant as the court shall deem proper for defendant's share in the same and for the keep and maintenance of said minor child, that said defendant be awarded the custody of said minor child, and that said defendant be awarded such other and further relief as to the court seemeth equitable and just."

¶5 On March 16, 1914, Raford Dial and Lizzie Dial entered into an agreement in view of the divorce suit pending wherein Lizzie Dial agreed to withdraw her answer filed in said cause wherein she sought "one-eighth of the first party's land and $ 25 per month alimony," and Lizzie Dial "further agrees not to appear against said first party in said action, especially for the purposes of contesting the issue raised by said answer herein." All of which was based upon a recited consideration of Raford Dial agreeing "to reasonably support a minor child born to said second party shortly after said marriage."

¶6 Thereafter and on March 17, 1914, the cause for divorce was heard by Honorable Tom D. McKeown, district judge, and a judgment was rendered which recites the issuance of summons in due time, the failure of defendant to appear or plead, the consideration of the allegations of plaintiff's petition as confessed, the hearing of oral testimony of witnesses, sworn and examined in open court, the residence of plaintiff in good faith for the required period of time, the marriage of plaintiff and defendant, etc. Then follows the finding of abandonment for more than twelve months by defendant of the plaintiff. The decree is "that the marriage relation now existing between Lizzie Dial and Raford Dial be, and the same is, hereby dissolved and both parties are released from the same."

¶7 The judgment continues: "It is further ordered that each party hereto have the same property rights which they each had previous in said marriage," and then follows the statutory six-months clause.

¶8 Thereafter, and on May 20, 1914, Raford Dial, by warranty deed, conveyed the land heretofore described to his mother, Annie E. James. On June 24, 1916, Raford Dial married Roxie Elliott and from this union four children were born, three of whom survive. In 1922, Raford Dial died and Lizzie Dial attended his funeral. Lizzie Dial well knew of the divorce decree and considered herself single for a time. She knew also of the subsequent marriage of her former husband.

¶9 On February 14, 1924, Annie E. James conveyed an undivided one-fourth interest in the oil and gas and other minerals under the land heretofore described to defendant in error J. A. Patterson.

¶10 On August 6, 1924, Annie E. James and J. A. Patterson, joined by their respective spouses, executed an oil and gas mining lease to the lands first described, in favor of one Madkin, who in turn and on August 13, 1924, assigned the same to the I. T. I. O. Company and the Foster Petroleum Company.

¶11 On August 10, 1925, Annie E. James conveyed an undivided one-sixteenth interest in the oil and gas and other minerals to the land first described to J. A. Patterson as trustee.

¶12 On November 15, 1925, the I. T. I. O. Company and the Foster Oil Company assigned their said lease, in so far as it covered the east one-half of the southeast one-fourth, to the Amerada Petroleum Company.

¶13 On February 23, 1916, Annie E. James conveyed to J. A. Patterson a further three-sixteenths interest to the oil and gas and other minerals existing in said lands, leaving an undivided one-fourth interest in the royalty in the name of the grantor, James.

¶14 Twelve years and nine months after the decree of divorce heretofore recited, and four years after Raford Dial's death, Lizzie Dial, appearing as Lizzie Green, filed her petition to vacate the judgment in divorce, wherein it is recited that summons was issued to her and that she filed therein her answer and cross-petition, seeking on behalf of herself and minor child an interest in the lands heretofore described, but that without any further pleading having been filed therein a judgment was rendered as a default judgment without notice and procured by fraud in the representation of plaintiff therein to the court that defendant was in default of a pleading in said cause, when in truth defendant therein had filed a verified answer, not only sufficient to defeat plaintiff's right, but sufficient to entitle defendant therein to a judgment for an interest in the lands described.

¶15 The petition alleges that petitioner remained unmarried from the date of March...

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