Harjo v. Black

• Decision Date: 21 December 1915
• Docket Number: Case Number: 7569
• Citation: 49 Okla. 566,153 P. 1137,1915 OK 1107
• Parties: HARJO et al. v. BLACK et al.
• Court: Oklahoma Supreme Court

1915 OK 1107

153 P. 1137

49 Okla. 566

HARJO et al. v. BLACK et al.

Case Number: 7569

Supreme Court of Oklahoma

Decided: December 21, 1915

Syllabus

¶0 1. STIPULATIONS--Dismissal Fraudulently Procured--Motion to Set Aside--Jurisdiction to Entertain. On June 5, 1915, the plaintiffs signed a stipulation of dismissal of a certain action theretofore instituted by them, which stipulation was on June 10th following filed in the office of the clerk of the district court, and notation thereof made on the records of said date. On July 2d next thereafter plaintiffs filed in said court their motion to cancel, set aside and strike from the files said dismissal, charging that it was procured by means of fraud practiced on them by one of the defendants. On, July 5th thereafter an amendment to said motion was filed, charging other grounds of fraud in the procurement of said dismissal stipulation. On the same day defendants filed their motion to strike plaintiffs' motions, charging that the court was without power and had no jurisdiction, to grant plaintiffs relief. At the same time defendants paid the court costs due and unpaid at the time the stipulation was filed. All parties being either present or represented by counsel, a hearing was on the same day had, and the court, without hearing proofs, overruled plaintiffs' motions. Held that, in overruling said motions without a hearing thereon, the court erred.

2. SAME. The fact that under the statute no order of court is required to enable a plaintiff to dismiss an action, when and where authorized, does not take from the court its jurisdiction, in the same action and on the same day that the costs are paid, to inquire into and determine whether or not fraud was practiced in procuring plaintiffs' signatures to the stipulation of dismissal, all parties being present or represented by counsel. In such case the court had the inherent right, and it was its duty to hear and determine the issues raised by plaintiffs' motion and to enter such judgment or order thereon as was proper.

Error from District Court, Creek County; Ernest B. Hughes, Judge.

Action by Mollie Harjo and another against George E. Black and others. From an order overruling motion to strike from the files a written dismissal filed by plaintiffs, plaintiffs bring error. Reversed and remanded.

Lewis C. Lawson, H. B. Moffit, and R. C. Allen, Creek National Atty., for plaintiffs in error

O'Meara & Sipe, for defendants in error Black, Richards, and Van Winkle

Sherman, Veasey & Davidson, for defendants in error Franchot and Prairie Oil & Gas Co.

SHARP, J.

¶1 May 26, 1915, plaintiffs, Mollie Harjo and Albert Harjo, filed suit in the district court of Creek county against the defendants, George E. Black, John D. Richards, J. M. Van Winkle, N. V. V. Franchot, and the Prairie Oil & Gas Company, and others, to recover the possession of a tract of valuable oil land claimed by said plaintiffs, for an accounting of oil produced thereon, and for other relief. On the day following, summons was issued to the several defendants, and on June 3d service was had upon the defendants Black and Richards. On the 10th day of June following, there was filed in the office of the clerk of the district court a purported dismissal of said suit, in words and figures as follows, omitting caption:

"Dismissal of Action. Comes now the above-named plaintiffs, Mollie Harjo and Albert Harjo, and respectfully represent to the court that they have received settlement and satisfaction from the above-named defendants, and hereby dismiss the above numbered and styled case with prejudice. Dated and signed this 5th day of June, A. D. 1915. Mollie Harjo (her x mark and right thumb mark), Albert Harjo, Plaintiffs. Mollie Harjo's name was signed by me at her request and in her presence. Johnson Tiger. Additional witness: Thomas Wesley."

¶2 On July 2d following, the plaintiffs, through their attorneys, filed in said suit their motion to cancel, set aside, and strike from the files said dismissal, charging that the same was procured by means of false and fraudulent representations practiced upon them by the defendant Richards. On July 5th thereafter said plaintiffs filed in said suit an amendment to said motion, setting up and charging other and further grounds of fraud in securing their signatures to the dismissal of June 5th. On the same day defendants filed their motion to strike the original and amended motion of the plaintiffs from the files, because, it was said, the court was without jurisdiction and had no power to grant the same. On the same day, namely, July 5th, defendants paid $ 2.50 costs, being the amount of costs due at the time the dismissal was filed with the clerk. A hearing being had upon the motion and amended motion of the plaintiffs, and upon the motion of the defendants, on the day last named, the plaintiffs being present in person and by counsel, and the defendants being represented by their attorneys, the court overruled plaintiffs' motion to vacate, set aside. and strike from the files the dismissal by them signed in said suit. From this order of the court, the present appeal is prosecuted. There was no judgment or order dismissing plaintiffs' suit.

¶3 By section 1, c. 24, of the Session Laws of 1890, p. 192 (section 5126, Rev. Laws 1910), it is provided that a plaintiff may, on the payment of costs, and without an order of court, dismiss any civil action brought by him at any time before a petition of intervention or answer praying for affirmative relief against him is filed in the suit. The right of the plaintiff, upon the payment of costs, to dismiss a civil action under the statute, is clear. Long v. Bagwell, 38 Okla. 312, 133 P. 50; Stuart v. Hicks, not yet officially reported, 153 P. 143. Prior to the passage of this statute pending actions could only be dismissed by order or judgment of court. Oberlander v. Confrey, 38 Kan. 462, 17 P. 88. The statute was intended to furnish an expeditious means whereby a civil action could be voluntarily dismissed by the plaintiff at any time before the filing of a petition of intervention or answer seeking affirmative relief against plaintiff was filed, and without the necessity of obtaining an order of court directing such dismissal. But the filing of the stipulation by plaintiff is not all; for the statute requires that the costs be paid. We have already seen that, although the stipulation was filed on June 10th, the costs were not paid until ...