Griffin v. Jones

• Decision Date: 08 December 1914
• Docket Number: Case Number: 4177
• Parties: GRIFFIN et al. v. JONES, et al.
• Court: Oklahoma Supreme Court

1914 OK 615

147 P. 1024

45 Okla. 305

GRIFFIN et al. v. JONES, et al.

Case Number: 4177

Supreme Court of Oklahoma

Decided: December 8, 1914

Syllabus

¶0 1. PROCESS--Publication Notice--Affidavit--Sufficiency. Defendants A. S. Griffin, Chas. A. Sandals and Sterling Oil Company were nonresidents of the state. Plaintiff caused a publication notice to issue, and published same for the time prescribed by law. Plaintiff failed to allege in the affidavit filed for the notice for publication any facts showing that defendants could not be served by the exercise of due diligence, or that they were not at the time in the state. Held, that said affidavit was fatally defective, Held, further, that the court obtained no jurisdiction over the person of defendants.

2. JUDGMENT--Jurisdiction--Publication Notice. Defendants A. S. Griffin, Chas. A. Sandals, and Sterling Oil Company failed to appear, and they were adjudged in default. The court entered a personal judgment against the two defendants first named for the sum of $ 19,693.79. Held that, the notice of publication being a nullity, the judgment rendered against said defendants was void.

3. JUDGMENT--Right to Vacate--Irregularity--Foreclosure of Mortgage. Plaintiff's cause of action was based upon 2 promissory notes of $ 1,000 each, which had matured, and another cause of action upon 18 notes of $ 1,000 each, which were not matured. When the case was called for trial, after evidence had been taken, the court permitted plaintiff to file an amended petition, setting out four additional causes of action, by alleging that 4 of the 18 notes had matured since the filing of the suit, and judgment was rendered in the sum of $ 6,014.93 on the matured notes, and for $ 13,678.86 on the notes which were not matured, and decreed the foreclosure of the mortgage lien for the full amount. Held, that this constitutes such irregularity as to authorize the trial court to vacate the judgment upon timely motion filed therefor.

4. JUDGMENT--Vacation -- Grounds -- Jurisdictional Defects. On the 12th day of February, 1912, and after the expiration of the term at which the judgment was rendered, defendants A. S. Griffin, Chas. A. Sandals, and Sterling Oil Company filed their motion to vacate said judgment, assigning therefor the invalidity of the publication notice issued and published, and want of jurisdiction of the court over them. They also assigned various other irregularities in the proceedings, including the allegation that the complaint failed to state a cause of action. The court denied said motion. Held that, assuming said motion contained both jurisdictional and nonjurisdictional grounds, and the filing of same constituted a general appearance, yet, if there were such irregularities in the proceedings affecting defendants' substantial rights, it was the duty of the court to have vacated said judgment.

5. APPEARANCE--Judgment--Vacation--Defective Service--Effect of General Appearance. Assuming that defendants, by filing their motion to vacate the judgment, made a general appearance, such appearance waived only the jurisdiction of the court over them, and did not waive any of the irregularities in the proceedings and judgment which deprived them of a substantial right. Upon the hearing of such motion, if it clearly appeared that such irregularities existed, or that the judgment was unjust and inequitable, it was the duty of the court to vacate said judgment and to hear said cause on the merits.

6. MORTGAGES--Foreclosure--Petition--Acceleration of Indebtedness. The mortgage sought to be foreclosed contained no provision accelerating the immatured indebtedness, or that in default of payment of any one or more of said notes or interest thereon, authorizing plaintiff to foreclose said mortgage. Held, that neither the original nor the amended petition stated a cause of action authorizing the foreclosure of the mortgage lien.

7. APPEAL AND ERROR--Ground for Reversal--Refusal to Vacate Judgment. Upon a hearing of the petition in error from the order denying the motion to vacate the judgment, it appears from the pleadings and judgment that said judgment was void for want of jurisdiction of the court over defendants, and it further appears that there is such irregularity in the proceedings and judgment complained of as deprived defendants of a substantial right, and it is apparent the judgment is unjust and inequitable; the order of the court denying the motion to vacate constitutes reversible error.

Norman Barker and B. T. Hainer, for plaintiffs in error.

J. P. O'Meara and H. H. Montgomery and L. G. Owen, for defendants in error.

RIDDLE, J.

¶1 The parties will be designated as they appeared in the trial court. On October 1, 1910, defendants Sandals-Griffin & Co., a copartnership composed of A. S. Griffin and Chas. A. Sandals, executed 20 promissory notes in the sum of $ 1,000 each, the first of which was payable December 1st, and one to be paid thereafter at the 1st of each month. The notes are dated at Washington, D. C., and payable to the order of James K. Jones, Jr., administrator, at the Commercial National Bank of Washington, D. C., and bear interest at the rate of 8 per cent. per annum until paid. Defendants executed their certain mortgage in favor of said plaintiff, securing said notes, upon the following described property:

S.E. 1/4 of the S.W. 1/4 and the S. 1/2 of lot 4, containing 21.04 acres, and the northeast 10 acres of lot 4, all in section 19, township 27 N., range 13 E. of the Indian meridian, and containing 71.04 acres, more or less; and the N.W. 1/4 of the S.W. 1/4 of the S.E. 1/4 of section 19, township 27 N., range 13 E. of the Indian meridian, containing 10 acres, more or less; and the S.E. 1/4 of the S.E. 1/4 and the S. 1/2 of the S.W. 1/4 of section 19, township 27 N., range 13 E. of the Indian meridian, containing 70 acres, more or less--all of said lands being situate in Washington county, state of Oklahoma, together with all the tools, appliances, machinery, and other personal property upon said leaseholds and appurtenant to their operation.

¶2 The only reference made to the notes in the mortgage is the following provision:

"This mortgage is given to secure the payment of twenty purchase money promissory notes of one thousand dollars ($ 1,000) each, dated October 1, 1910, and due one each month from one to twenty months from date, interest upon said notes being at the rate of 8 per cent. per annum from date until paid."

¶3 These defendants are described in the mortgage as residents of Cuyahoga county, Ohio. On January 21, 1911, defendants having defaulted in the payment of the first 2 notes described, plaintiff filed his petition in the district court of Washington county, declaring upon these 2 notes, and alleging that no part of same had been paid, except $ 283.77. The two notes were attached as exhibits to said petition. In the fifth paragraph he alleged the execution of 18 other promissory notes, similar to the ones described, except none of said notes were due. He alleges the execution of said mortgage referred to, covering the property hereinbefore described; that the conditions of said notes and mortgage had been broken, in that defendants had made default in the payment of the notes due December 1, 1910, and January 1, 1911, respectively. Plaintiff further alleges that by the insolvency of said defendants they were not able, and would not be able, to pay said notes or any part thereof, and would not be able to operate said leaseholds or to produce any oil or gas thereon. It is then alleged as follows:

"That there is now due and payable on the two said notes first above described herein, less all credits paid thereon, the sum of $ ."

¶4 He also prays for appointment of a receiver, and that the court declare all of $ 20,000 indebtedness due and payable, and that the usual decree of foreclosure be entered against said defendants foreclosing said mortgage. A summons was issued to the sheriff of Washington county, and his return shows that defendants Sandals and Griffin could not be found in said county. Service was had upon T. L. Bucy, as general manager of defendant the Sterling Oil Company, a corporation. Thereafter affidavit was filed and a notice for publication issued thereon by the clerk. It was published in a newspaper of general circulation in Washington county, directed to defendants Griffin and Sandals, demanding that they appear and answer said petition on the 24th day of March, 1911; otherwise judgment would be entered against them for the sum of $ 1,764.90, together with 6 per cent. interest thereon, and the further sum of $ 18,000, with interest thereon at the rate of 6 per cent. per annum from the 1st day of October, 1910, and costs of suit, and that judgment be rendered foreclosing the mortgage, etc. The defendants Frick-Reid Supply Company, a corporation, and James Taylor appeared and filed their answers and cross-petitions in said cause. Taylor alleged that defendants were indebted to him in the sum of $ 876.89, together with attorney fee of $ 100, and claimed a laborer's lien upon said property as security for the payment of said indebtedness, and prayed judgment for said amount, together with foreclosure of his lien. Defendant Frick-Reid Supply Company prayed judgment against defendants Griffin and Sandals for the sum of $ 1,211.11, together with a vendor's lien upon said property, praying that its said lien be foreclosed. There was no summons or notice of publication issued and served upon either of these cross-petitions, and no waiver of service nor any appearance made by defendants Griffin and Sandals. On May 26, 1911, said cause was called for trial. Defendants Griffin and Sandals were adjudged in default, and the petition and cross-petitions were taken as confessed. It appears from the journal entry that some evidence was heard, and that personal judgment was rendered against defendants Griffin and Sandals, in favor of defendants Taylor...