Harper v. Stumpff

• Decision Date: 13 December 1921
• Docket Number: 11765.
• Citation: 203 P. 194,84 Okla. 187,1921 OK 430
• Parties: HARPER ET AL. v. STUMPFF.
• Court: Oklahoma Supreme Court

203 P. 194

84 Okla. 187, 1921 OK 430

HARPER ET AL. v. STUMPFF.

No. 11765.

Supreme Court of Oklahoma

December 13, 1921

Rehearing Denied Jan. 10, 1922.

Syllabus by the Court.

"The Supreme Court may reverse, vacate or modify judgments of the county superior or district court, for errors appearing on the record, and in the reversal of such judgment or order may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof." Section 5236, Revised Laws of Oklahoma of 1910.

The above section of the statute does not contemplate that two separate and distinct judgments rendered upon causes of action which could not in their nature be united may be brought to this court in one appeal, presented in one petition in error and upon one case-made.

A cause of action under the Occupying Claimants Act does not accrue until the party in possession admits right of possession in the party claiming the right of possession, or until judgment has been rendered evicting the party in possession.

A person cannot claim the ownership and right of possession of specific real estate and at the same time claim the right to recover under the Occupying Claimants Act for improvements placed on said land. Such claims are inconsistent.

The party in possession against whom a judgment evicting him has been rendered has the election of remedies either to defer the trial of his right to recover under the Occupying Claimants Act and appeal to the Supreme Court from such judgment or waive his right of appeal from that judgment treat it as final, and then proceed to trial on the issue of his right to recover under the Occupying Claimants Act. If on the trial of this issue he feels himself aggrieved, he may appeal from that judgment, but he cannot pursue both remedies and appeal from both judgments at the same time and in one appeal.

The plaintiffs in error having failed to elect which remedy they would pursue, it is not the duty of this court to make the election for them.

Where the parties have undertaken, by one appeal upon one petition in error and one case-made, to reverse two or more judgments this court will dismiss such an attempted appeal for duplicity.

Appeal from District Court, Osage County; Preston A. Shinn, Judge.

Action in ejectment by Florence H. Stumpff against W. J. E. Harper and others. Verdict and judgment for plaintiff. Defendants demanded a jury trial on their right to recover under the Occupying Claimants Act. Verdict and judgment for plaintiff Stumpff. Defendants appeal from both judgments. Appeal dismissed.

Gray & Miller and Leahy, MacDonald, Burnette & Files, all of Pawhuska, for plaintiffs in error.

E. L. Fulton, of Oklahoma City, for defendant in error.

MILLER J.

This action was commenced in the district court of Osage county by Florence H. Stumpff against defendants, W. J. E. Harper, F. B. Price, Ætna Building & Loan Association, a corporation, G. C. Potter, and Noah C. Adams. The plaintiff's petition states a cause of action in ejectment, and to recover damages and for rents and profits.

Issues were joined, and the case tried to a jury, which resulted in a verdict and judgment in favor of the plaintiff, for possession of the property. Another jury was impaneled, and defendants submitted to it their rights to recover under the Occuping Claimants Act. This jury returned a verdict in favor of the defendant Harper for $55.09 for taxes he had paid. He was not allowed anything for improvements. Judgment was rendered in accordance with the verdict of the jury. Motions for a new trial were filed and overruled. Defendants saved their exceptions, gave notice of appeal, and have filed one petition in error and case-made in this court, and thereby seek to reverse the two judgments. They appear here as plaintiffs in error.

At the very outset we are confronted with a motion to dismiss the appeal on account of duplicity; two judgments on separate issues being presented in one appeal. We think the motion is well taken, and should be sustained.

The facts are as follows: The plaintiff in the first and second paragraphs of her petition deraigns her title. In the third paragraph she alleges that on the 16th day of December, 1916, she was owner of and seized in fee and possessed of the premises consisting of lots 7 and 8 in block 23, in the town of Hominy, Osage county, Okl.; that on or about December 16, 1916, defendant W. J. E. Harper, without right or title, entered in and upon said premises, ousted and ejected plaintiff therefrom, and from said date has held, and still holds, possession thereof from the plaintiff. In the fourth paragraph of her petition she alleges there was property on said lots of the value of $1,050, consisting of an undivided one-half of a brick wall; the other portion of said wall being upon an adjacent lot, and of a certain stable and warehouse; that she had household goods stored in said warehouse of the value of $250, and that the rental value of said property was $25 per month, making a total aggregate in the sum of $1,530, which plaintiff was entitled to recover from defendant W. J. E. Harper. In the fifth paragraph of her petition she alleges that the defendant Ætna Building & Loan Association, a corporation, F. B. Price, G. C. Potter, and Noah C. Adams claimed to have some right, title, interest, estate, or right of possession in and to said premises, the nature and extent of which is unknown to the plaintiff; that such claims are without right, and constitute a cloud upon the plaintiff's title. In the prayer of her petition she asks for restoration of the premises, that she recover the sum of $1,530 as damages as alleged in her petition, and that her title be quieted as against the claims of all the defendants.

Defendant Price filed an answer, setting up a mortgage given by plaintiff on said property to secure the payment of $400, which mortgage was executed on the 12th day of January, 1912; that an action had been brought in the district court of Osage county to foreclose said mortgage, the same being case No. 3279, a decree of foreclosure obtained that the property above described was sold by the sheriff of Osage county to satisfy the judgment of foreclosure, and said property was bought in by defendant Price at the execution sale; that Price thereafter conveyed said property to defendant Harper; that Harper had executed a mortgage on said property to the defendant Ætna Building & Loan Association, a corporation, to secure the payment of $3,000; that he had erected lasting and valuable improvements thereon; that motions were filed in said action, No. 3279, by the plaintiff to vacate the judgment, which were overruled by the district court. On appeal to the Supreme Court of the state of Oklahoma the district court was reversed, and said judgment was vacated for want of jurisdiction of the parties defendant. See Stumpff v. Price (Okl.) 177 P. 109.

The prayer in the answer of defendant Price is as follows:

"Wherefore, this answering defendant prays that the court set and appoint a day for determining the value of the permanent and lasting improvements placed upon said premises by the defendant W. J. E. Harper, and for the determining of the amount of taxes paid by the said defendant W. J. E. Harper, and by this answering defendant, and that at said hearing this court determine the value of said improvements and taxes paid, and that before the court decree or make any order, finding or determining that the plaintiff has any right, title, or interest in said premises, the said plaintiff be required and ordered to pay into the court, for the use and benefit of the defendant W. J. E. Harper, and for the use and benefit of the answering defendant, the value of said permanent and lasting improvements and the amount of taxes paid by said defendant W. J. E. Harper and this answering defendant, and interest thereon from the date of payment at 18 per cent. per annum, and that upon failure of the plaintiff to pay said sum, the court decree and determine that said plaintiff has no right, title, or interest in or to said premises.

And it is further prayed by this answering defendant that this action be consolidated with the case of F. B. Price, plaintiff, v. Florence H. Stumpff and James H. Stumpff, defendants, case No. 3297 in the district court of Osage county, Okl., and that thereafter the court find and decree that there is due and owing to this answering defendant from the plaintiff the sum of $693.33 as interest and principal on said note and mortgage, and that the same bear interest from the _____ day of May, at 10 per cent. per annum, and that there is due and owing the further sum of $265.75 for taxes paid and interest thereon, and the further sum of $200 attorney's fees, and that judgment be rendered against said plaintiff for said sums and for further judgment foreclosing said mortgage and authorizing the sale of said premises to satisfy the judgment."

Defendant Harper filed an answer alleging substantially the same state of facts as alleged by Price in his answer, and asked for the same relief.

The defendant Ætna Building & Loan Association, a corporation, filed its separate answer, setting forth in detail its interest by virtue of a certain mortgage executed by defendant Harper and his wife to secure the payment of $3,000, and alleged substantially the same facts and asked for the same relief as asked in the answer of Price.

Defendants Potter and Adams did not file any answers, and do not make any appearance in the case.

The plaintiff filed a separate reply to each of the separate answers of defendants Price, Harper, and Ætna Building & Loan Association, a corporation. These answers were substantially the same, consisting of, first, a...