Harness v. Myers, Case Number: 18318

• Decision Date: 04 February 1930
• Docket Number: Case Number: 18318
• Citation: 288 P. 285,1930 OK 61,143 Okla. 147
• Parties: HARNESS v. MYERS.
• Court: Oklahoma Supreme Court

1930 OK 61

288 P. 285

143 Okla. 147

HARNESS v. MYERS.

Case Number: 18318

Supreme Court of Oklahoma

Decided: February 4, 1930

Syllabus

¶0 1. Statutes--Statutes of Another State Adopted with Judicial Construction Thereof.

It is the well settled general rule that when a statute has been adopt from another state, the judicial construction already placed on such statute by the highest courts of the jurisdiction from which it is taken accompanies it, and is treated as incorporated therein. The presumption, in the absence of an expression of legislative intention to the contrary, is that the law was enacted in the light of the construction given it by the courts of the state from which the statute was taken.

2. Same--Change in Judicial Construction of Statute Affecting Contracts not Given Retroactive Effect.

The true rule is to give a change of judicial construction, in respect to a statute, the same effect in its operation on contracts and existing contract rights that would be given to a legislative amendment; that is to say, make it prospective, but not retroactive.

3. Guardian and Ward--Application for Appointment as Guardian--Jurisdiction--Sufficiency of Notice.

In this case, B. F. Westlake made application for the appointment of himself as guardian. The minor was in the care and custody of its mother, who had actual notice of the application for appointment and filed her waiver in said cause. Notice of the application for appointment was given by posting in three public places in Muskogee. Held, that, under these facts, the court had jurisdiction to make the appointments.

4. Appeal and Error--Subsequent Appeals--Law of Case--Decision on First Appeal not on Merits.

Where the trial court sustains a demurrer to a petition on the ground that the petition does not state a cause of action, and the case is appealed to this court and reversed with directions to overrule the demurrer, and upon a trial of the case an answer is filed and evidence is introduced controverting the facts stated in the petition, upon a second appeal to this court the judgment in the former appeal is not res adjudicata.

Error from District Court, Creek County; John L. Norman, Judge.

Action by Ada Myers against John R. Harness and another. Judgment for plaintiff, and defendant Harness appeals. Reversed, with directions to enter judgment for defendant.

Geo. L. Burke, for plaintiff in error.

J. J. Bruce, for defendant in error.

HEFNER, J.

¶1 This action was brought in the district court of Creek county, in 1920, by Ada Myers, as plaintiff, the defendant in error herein, against John R. Harness, and another, as defendants, the plaintiff in error herein. The purpose of the action was to recover possession of and to quiet title to the southwest quarter of section 11, township 18 north, range 10 east, and to cancel certain guardianship sale proceedings in the county court of Muskogee county, and deed made pursuant thereto.

¶2 It is claimed that the guardianship sale was illegal and void because the appointment of the guardian was irregular and void for the reason that no notice of the hearing on the petition for the appointment of a guardian, except by posting notices as directed by the county judge, was served on the mother, who was the custodian of the minor. It is further contended that notice of the sale of the land was not in compliance with the statute governing guardians' sales and was, for that reason, void. Attached to the petition were copies of the proceedings in the county court for the appointment of a guardian and for a sale of the land, except the order of appointment of guardian and the waiver of the mother of her right to appointment. The defendants demurred to the petition on the ground that it did not state a cause of action. The trial court sustained the demurrer. The case was brought here for review by the plaintiff, and the trial court was reversed on the ground that the posting of notices of the hearing on the petition for appointment of a guardian was not sufficient to give the court jurisdiction, and that the mother and relatives should have some kind of actual personal information, or notice. Former holdings of this court that posting of notices was sufficient were overruled. Myers v. Harness, 116 Okla. 268, 244 P. 1109.

¶3 When the case was again tried in the district court, after the former appeal, the order appointing the guardian and the waiver of the mother were introduced in evidence. The trial court found that there was no fraud practiced in the sale of the land and that the sale was regular; that the mother of the minor had notice and had waived her right to appointment, but that the step-father also was entitled to actual notice of the hearing on the petition for appointment of a guardian and that the appointment was void because the stepfather was not served with such actual notice. The title to the land was quieted in the plaintiff, and the defendant has brought the case here for review.

¶4 The land was sold by the guardian in 1910, and suit was brought to recover the same in 1920, soon after the minor became of age.

¶5 At the time guardian was appointed in this case, was it necessary for the county judge, before making the appointment, to cause actual notice to be given to the relatives of the minor residing in the county and to any person having the care of such minor, in order to acquire jurisdiction to make the appointment? Section 1431, C. O. S. 1921, reads in part as follows:

"* * * Before making the appointment the judge must cause such notice as he deems reasonable to be given to the relatives of the minor residing in the county, and to any person having care of such minor."

¶6 In the case of Lester v. Smith, 83 Okla. 143, 200 P. 780, this court held that the probate procedure of Oklahoma came from California, and there said:

"Section 6522, Revised Laws of Oklahoma, 1910, provides as follows: * * *

"In Asher v. Yorba et al., 125 Cal. 513, 58 P. 137, the Supreme Court of California had this same section of the statute under consideration, and laid down the following rule:

"Under Code Civ. Proc. para. 1747, providing that, before making appointment of a guardian, the court must cause such notice as it deems reasonable to be given to the person having care of the minor, and such relatives as the court may deem proper, posting of notice for 10 days in three public places, under direction of the court, is sufficient.

"'Under Code Civ. Proc. para. 1747, providing that, before the appointment of a guardian, notice shall be given to such relatives of the minor residing in the county as the court may deem proper, the court has authority to give notice by posting for 10 days in three public places.'

"The probate procedure of Oklahoma was acquired from California. California construed this section in 1899, when the above opinion was rendered by the Supreme Court. It is presumed the Legislature of Oklahoma knew of this decision of the Supreme Court of California and adopted the above statute with full knowledge of this decision. Therefore this decision is very persuasive with us. We think the notice was sufficient."

¶7 The section of the statute requiring notice of the appointment of a guardian was construed by the California court in 1899, long before statehood and long before the statute was adopted by this state. In the Smith-Lester Case, supra, this court said that it was presumed the Legislature of Oklahoma knew of this decision of the California court and adopted the statute with full knowledge of the decision. Then, on the advent of statehood, the statute was adopted and it became the law, as construed by the California Supreme Court.

¶8 In the Asher-Yorba Case, supra, the California court said:

"* * * Upon a careful reading of the statute it will be found that it is a matter of discretion upon the part of the court to give any notice whatever to the relatives residing in the county. The statute says the notice is to be given to those relatives of the minor residing in the county, 'as the court may deem proper'."

¶9 In the case of In re Chin Mee Ho (Cal.) 140 Cal. 263, 73 P. 1002, decided in 1903, the court said:

"* * * From this it will be seen that the only persons to be notified are those having the care of the minor, and such relatives residing in the county as the court may deem proper. The relatives to be notified and the length of the notice are entirely at the discretion of the judge to whom the petition is presented. * * *"

¶10 From 1886 to the present time the California court has uniformly held to this construction of the statute. Burroughs v. De Couts, 70 Cal. 361, 11 P. 734; In re Lundberg, 143 Cal. 402, 77 P. 156; In re Morhoff's Guardianship, 179 P. 294.

¶11 The first time the question was before this court was in 1916, in the case of Crosbie v. Brewer, 68 Okla. 16, 173 P. 441. There it was said:

"Plaintiffs next contend that section 6522, Revised Laws of 1910, requires written personal notice to be given to the relatives in the county. That part of the statute referred to reads as follows: * * *

"In the case at bar the court caused three written notices to be posted up in three public places in the county, and plaintiffs argue that this was only constructive notice and was not the notice intended by the above statute. It seems it was the intention of the law to leave the nature of the notice to the discretion of the county judge, and the only notice required to be given was one deemed reasonable by the judge."

¶12 The question was again before this court in 1923, in the case of Ross v. Groom, 90 Okla. 270, 217 P. 480. A thorough and exhaustive study of the question was there made, and it was said:

"The defendants next contend that the appointment of Hudson as guardian was void because notice of the application for appointment was not personally served on the parents of the minor. As far as the record is concerned, it does not appear whether the parents filed a waiver of notice of the

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