Halliburton v. Williams
| Decision Date | 28 November 1933 |
| Docket Number | 24499. |
| Citation | 27 P.2d 360,166 Okla. 248,1933 OK 637 |
| Parties | HALLIBURTON et al. v. WILLIAMS, Common Pleas Judge. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Prohibition is an extraordinary remedy, and cannot be resorted to when ordinary and usual remedies provided by law are available and adequate.
2. An order vacating a final judgment and reinstating a case for a new trial is an appealable order.
3. Where the remedy of appeal is available to a litigant, such remedy will not be declared inadequate merely because inconvenience, expense, or delay will be occasioned by such appeal.
Original prohibition proceeding by Eulalie V. and Mary Martha Halliburton, minors, by the Exchange Trust Company of Tulsa as guardian, against Bradford Williams, Judge of the Common Pleas Court of Tulsa County.
Writ of prohibition denied, and alternative writ dissolved.
Philip Kates, of Tulsa, for plaintiffs.
Randolph Haver, Shirk & Bridges, of Tulsa, for defendant.
This is an original action instituted in this court by Eulalie V. and Mary Martha Halliburton, minors, by the Exchange Trust Company, as guardian. The plaintiffs seek a writ of prohibition to prevent the defendant, Bradford Williams judge of the court of common pleas of Tulsa county, Okl., from entering an order vacating a judgment of that court rendered on the 16th day of January, 1933.
The record discloses that on the 14th day of October, 1931, one Orlando Halliburton met his death as a result of injuries suffered in a fall from the seventh floor of the Mincks Hotel in the city of Tulsa, Okl. At the time of his death, he was the insured in a policy of insurance issued by the Illinois Life Insurance Company in which policy the plaintiffs in this action were beneficiaries. This policy of insurance provided for the payment of $2,000 in the event of death from any cause and the payment of an additional $2,000 in the event death should result from bodily injuries caused by "external, violent and accidental means." The insurance company paid the $2,000 which they agreed to pay by virtue of the policy in the event of death from any cause, but disputed liability under the accidental feature of the policy.
Plaintiffs in this action commenced an action in the court of common pleas of Tulsa county as plaintiffs therein against the Illinois Life Insurance Company as defendant on the 4th day of October, 1932, seeking to recover the $2,000 provided for in the accidental clause of the policy. The defendants in that action filed a motion to make more definite and certain, which was overruled in part and sustained in part. In the order sustaining the motion in part, the court granted leave to file an amended petition within ten days. There is a dispute in this case as to when the order was made; there being some confusion in the record as to whether it was made on the 19th day of November or on the 26th day of November. The amended petition in that action was filed on the 2d day of December, which was within the time allowed by the court for the filing thereof if the order granting the ten days' time was made on November 26th. If, however, the order referred to was made on the 19th day of November, the filing of the amended petition was out of time.
Thereafter, and on the 15th day of December, 1932, the attorneys for the Illinois Life Insurance Company filed in the action referred to a motion to abate upon the theory that a receiver for the Illinois Life Insurance Company had been appointed by the United States District Court for the Northern District of Illinois. This motion to abate was denied on the 17th day of December, and, in the order denying the motion, the defendant was granted five days from the date thereof to plead. No pleading was filed, and thereafter on the 4th day of January, 1933, the cause was set for trial. On the trial date January 16, 1933, the plaintiffs appeared, and the cause was called for trial. The defendants failed to appear. Evidence was introduced and a judgment rendered in favor of the plaintiffs in the sum of $2,000, with accrued interest. An execution was issued on this judgment directed to the sheriff of Tulsa county, who levied upon certain real estate belonging to the Illinois Life Insurance Company. Before any sale of this property could be made under the execution, the district court of Tulsa county appointed receivers to take charge of the property of the Illinois Life Insurance Company within the state of Oklahoma. On the 28th day of February, 1933, the district court of Tulsa county directed the receivers appointed by it to file and prosecute in the court of common pleas, a motion to recall the execution above referred to and to vacate the judgment therein rendered. Pursuant to this direction of the district court, the receivers on the 28th day of February, 1933, filed such a motion in the court of common pleas. In response thereto, the plaintiffs on the 4th day of March, 1933, filed a motion to strike the motion filed by the receivers. Both of these motions were filed within the term within which the judgment was rendered. Thereafter, and on the 6th day of March, 1933, after the term had expired, the matter came on for hearing on both of these motions. Testimony was introduced in support of the motions. After the testimony had been heard, the court announced its intention to sustain the motion of the receivers to vacate the judgment and to recall the execution. But before it had made its order and formal ruling thereon the plaintiffs in that action commenced this action in this court for the purpose of preventing the respondent herein as judge of the court of common pleas from entering such an order. From the pleadings and briefs herein it appears that there is no intention on the part of the defendant to recall the execution except as an incident to the contemplated order vacating the judgment.
It is the theory and contention of the plaintiffs herein that the entry of such an order by the judge of the common pleas court of Tulsa county would constitute an abuse of discretion and would amount to an unauthorized application of judicial force, that they have no other remedy by appeal or otherwise, and are therefore entitled to invoke the jurisdiction of this court to prohibit the alleged unauthorized action or contemplated action of the trial court.
The first question in this case is one involving the jurisdiction of this court and the propriety of controlling the action of the court of common pleas through a proceeding for writ of prohibition. The respondent herein contends that the plaintiffs have an adequate remedy...
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