Hardesty v. Naharkey

• Decision Date: 20 February 1923
• Docket Number: Case Number: 13931
• Citation: 1923 OK 113,213 P. 89,88 Okla. 253
• Parties: HARDESTY et al. v. NAHARKEY et al.
• Court: Oklahoma Supreme Court

1923 OK 113

213 P. 89

88 Okla. 253

HARDESTY et al. v. NAHARKEY et al.

Case Number: 13931

Supreme Court of Oklahoma

Decided: February 20, 1923

Syllabus

¶0 1. Appeal and Error--Decisions Appealable--Interlocutory Orders--Reference for Accounting.

A judgment or order of the trial court which determines the rights of the parties as to the governing or controlling issues involved, but expressly reserves the finality thereof until the report of the referee therein ordered to take an accounting is acted on by the court, is interlocutory and not appealable.

2. Same--Appealable Judgment.

When the judgment entry determines issues involving the merits of the action or some part thereof and specifying the relief granted the prevailing party, but reserves for further action an accounting for certain alleged oil lease rentals, and there is nothing therein which postpones its operation until action on the accounting, then such judgment is appealable, under section 5236, Rev. Laws 1910.

3. Same--Duty to Make Definite in Trial Court.

In causing judgment entry to be made which determines the merits of the action and the main parts thereof under the pleadings on which it is based, but a minor issue of accounting is reserved until the referee reports thereasto, if it is not intended to become such a judgment as to the merits of the action or some part thereof as would make it appealable, it is the duty of the parties and the trial court to see that the language of such judgment clearly shows that it is not final until supplemented by the findings on the accounting feature.

4. Same.

Although section 5236, Rev. Laws 1910, subd. 3, provides that this court may reverse, vacate, or modify judgments of inferior courts or orders thereof involving the merits of an action or some part thereof, yet it is the better practice that only one appeal be taken in any action, and that from a full and final determination of all the issues involved, and if it is intended that the order, judgment, or decree being entered should be suspended in its operation until the other issue not yet heard can be incorporated in the judgment, it would serve the better purpose of the law, to the end that only one appeal be allowed, if such judgment entry would expressly so provide. But where it does not, as in the case at bar, and the rights of the parties are conclusively determined as to all of the principal issues, the losing party has the right of appeal, and the same will not be dismissed on the motion filed in this court.

Error from District Court, Tulsa County; Redmond S. Cole, Judge.

Stuart, Cruce & Bland, E. J. Doerner, and C. A. Steele, for plaintiffs in error.

John D. Wakely and Lashby & Rambo, for defendants in error.

BRANSON, J.

¶1 This appeal is prosecuted by the plaintiffs in error, W. E. Hardesty, O. K. Eysenbach, and Bessie C. Eysenbach, against Sammie Naharkey and others, defendants in error, to reverse an order, judgment, and decree of the district court of Tulsa county, Okla., rendered in favor of the defendants in error, as plaintiffs, against the plaintiffs in error, as defendants in said court.

¶2 It is now before this court upon motion filed by the defendants in error to dismiss this appeal, on the ground that the appeal was prematurely brought. They say there was no final judgment or order entered by the trial court determining the rights of the parties from which an appeal lies, under section 5236, Rev. Laws 1910. In the concrete, the ground for dismissal is that the journal entry signed by the trial judge on February 21, 1922, among other things, recited:

"That said defendants and each of them be required to account to the plaintiffs for rents received from oil and gas mining leases heretofore executed by said defendants, and covering the above lands to the extent of plaintiffs' undivided three-fourths interest in and to said lands; that the matter of taking said accounting above be referred to Gerald O'Brien to hear and take testimony in said accounting, with full power to compel the attendance of necessary witnesses, and such evidence as may be necessary for taking said accounting and that after taking said accounting, he prepare and file a report of his acts with this court for further action by the court"

--and that this paragraph of the journal entry contemplated that, before final judgment should be entered, the accounting feature should be completely disposed of by the court.

¶3 In support of their motion to dismiss, two decisions of this court are cited, one on April 5, 1921, entitled Wells v. Shriver, 81 Okla. 108, 197 P. 460; the other rendered on January 2, 1923, Foreman v. Riley, 88 Okla. 75, 211 P. 495.

¶4 It can serve no useful purpose either to enter into a lengthy discussion of the holdings or to quote at length from the decisions of the courts of the United States, both state and federal, on the question of what constitutes a final judgment from which an appeal properly lies, or what constitutes an interlocutory decree from which an appeal does not lie. While many of the text-writers and some of the decisions recite that there is an irreconcilable conflict of authority on the question, it would appear, on examination of the cases, that the apparent conflict is due to the variance in the situation that is presented to the court in each particular case, and the statutes on the subject. The rule which obtains in the majority of the jurisdictions is, when a decree is rendered settling all the main questions, such a decree is final for the purposes of appeal, though a settlement of accounts between the parties is reserved for future determination. Bank of Mobile v. Hall (Ala.) 41 Am Dec. 41; Gray v. Ames (Ill.) 77 N.E. 219, 5 Ann. Cas. 174, and note.

¶5 In the cases in which the courts have held that judgment was not appealable it was usually expressly set forth that the judgment and final order would be entered after a master's or referee's report was filed, or some other contingency in the judgment provided for had taken place. That is, from the judgment itself, only one conclusive inference could be drawn--that the recitals therein contained were merely an indication from the court of what the final judgment and decree would be when entered in the future and the holding was that the judgment or decree with such provision or with such language showing such intention was not a final order within the meaning of the statutes providing appeal only from final judgments.

¶6 This is true in the two cases cited by the defendants in error from this court in support of their motion to dismiss plaintiffs in error's appeal herein. In the much stressed case first above cited, Wells v. Shriver, 81 Okla. 108, 197 P. 460, the journal entry in the first judgment, as to which the dispute arose, and which was therein contended to be a final judgment and not interlocutory, expressly recited:

"* * * That further order and final decree of the court await the result of the said accounting, and that the plaintiff have his costs in this suit against the defendant."

¶7 The question involved for the determination of the court was whether the decree with this recitation contained therein, and which was rendered in 1914, and which was made final by a judgment and decree entered in 1918, after the accounting, was itself a final judgment from which appeal should have been taken by the parties. And this court held that it was not a final decree, but interlocutory.

¶8 In the other case cited by defendants in error, to wit, Forman v. Riley, the journal entry recited:

"It is further ordered, considered, and adjudged that the issues of fact arising in the accounting hereinbefore ordered, be referred to a referee. * * *

"It is further ordered, considered, and adjudged that upon the receipt of said referee's report, that this court shall then render judgment canceling the deed from plaintiff to defendant, dated January 11, 1915, covering (then followed a description of the land) * * * and if it shall appear from said accounting that plaintiff is indebted to defendant, defendant be decreed a lien upon the lands hereinabove described, as security for the amounts due him, and if it shall appear from said accounting that defendant is indebted to plaintiff, that plaintiff have judgment against said defendant for the amount so due to the plaintiff."

¶9 In the body of this opinion, the court expressly uses this language:

"The court (meaning the lower court) clearly indicated that the judgment would be rendered after the coming in of the report of the referee."

¶10 It is clear from these cases that the court in entering these orders made it plain that the judgment of the court would not become a finality until the accounting therein provided for had been reported to and acted on by the court, and there is nothing in either of these cases that sets a precedent in this court to grant the motion to dismiss the appeal filed by the defendants in error herein. On the contrary, it appears from the journal entry, copy of which is attached to the response of plaintiffs in error to the motion to dismiss, that defendants in error recovered a judgment vacating a judgment in partition, entered in the United States court for the Western district of the Indian Territory, in 1908, and finding that they were the owners of three-fourths of the land described in the journal entry, and finding that certain of the defendants were due certain amounts for the occupation of the premises, and that the defendant Hardesty was entitled to recover the sum of $ 1,600...