Harrison v. Osborn

• Decision Date: 10 January 1911
• Citation: 114 P. 331,31 Okla. 103,1911 OK 31
• Parties: HARRISON et al. v. OSBORN.
• Court: Oklahoma Supreme Court

114 P. 331

31 Okla. 103, 1911 OK 31

HARRISON et al. v. OSBORN.

Supreme Court of Oklahoma

January 10, 1911

Syllabus by the Court.

The county court having authority to set aside its judgments on statutory grounds at a subsequent term, the same may be set aside by consent of parties.

When it is not pointed out wherein the answer states facts sufficient to constitute a defense, and the same is not to us apparent and no issue of law arising on demurrer is attempted here to be presented, the judgment of the trial court sustaining a general demurrer to said answer will not be disturbed.

Where C., B., and H. are, by written obligation, made, executed delivered, and assigned in Indian Territory prior to the erection of the state, bound unto one Cooper in the sum of $750 conditioned that they will, on January 1, 1908, deliver to him unincumbered possession of certain lands that day sold to him by said C. & B.; that if the conditions of said bond were complied with it shall be null and void, otherwise to remain in full force and effect-- held, in a suit by Cooper's vendee of the land and assignee of the bond that the same was to him assignable, and that he is entitled to recover the sum specified therein as liquidated damages.

(Additional Syllabus by Editorial Staff.)

Where a judgment is set aside by the consent of the parties at the term after its rendition, pending the hearing of a motion for new trial, and on denial of the motion a new judgment is entered, the latter is the final judgment from the rendition of which the time for service of the case-made is to be computed.

Error from District Court, Pontotoc County; Joel Terrell, Judge.

Action by John R. Osborn against George A. Harrison and others. From a judgment in favor of plaintiff, defendants bring error. Affirmed.

C. A. Galbraith, Tom D. McKeown, I. M. King, and W. G. Currie, for plaintiffs in error.

Duke Stone, for defendant in error.

TURNER J.

On January 28, 1908, John R. Osborn, defendant in error, sued Geo. A. Harrison, J. W. Bolen, and John P. Crawford, plaintiffs in error, in the county court of Pontotoc county to recover a sum certain on a written obligation. His petition substantially states: That on September 28, 1907, said Crawford and Bolen as principals, and said Harrison as surety, made, executed, and delivered to one C. P. Cooper their certain undertaking as follows: "We undertake and are bound unto C. P. Cooper in the sum of $750.00 conditioned that we will deliver to him unincumbered possession of the lands this day sold to him by J. W. Bolen and J. P. Crawford, it being the surplus allotment of Samuel C. Meville on the 1st day of January, 1908, provided however, that U. G. Winn, shall have the full right to use the branding pen and the dip vats on said place for the years 1908 and 1909. And it is further agreed that if the conditions of this bond are complied with it shall be null and void, otherwise to remain in full force and effect. This the 28th day of Sept. 1907. Crawford & Bolen. Geo. A. Harrison." That the same was given as a part of the consideration of the sale of the lands therein described; the sum thereby secured being intended as liquidated damages to be paid said Cooper or his assigns upon the breach thereof. That on November 9, 1907, said Cooper sold said lands to plaintiff and as part consideration therefor assigned to him, with the knowledge and consent of defendants, said written obligation, who thereby became entitled to the possession of said lands on January 1, 1908. That defendants breached said bond, in that they failed to deliver to him possession of said lands on said date after demand therefor made by him, and prays judgment for said amount and costs. After general demurrer thereto filed and overruled, defendants answered, whereupon plaintiff demurred to said answer, which was sustained, and, defendants electing to stand thereon, judgment was rendered and entered March 26, 1908, in favor of plaintiff and against defendants for $750 and cost. On March 28, 1908, defendants filed motion for a new trial. At the next term of the court, on May 2, 1908, by agreement of counsel, said judgment was set aside, pending the hearing of motion for a new trial, and the motion continued until the next term of the court, but on May 12th was taken up without objection and overruled and judgment again entered as stated. To review said judgment defendants bring the case here by case-made.

It is contended by defendant in error that the judgment of March 26, 1908, became final at the expiration of the March term, and that the court was without jurisdiction to set the same aside during the next term as it did, even by consent of counsel, having lost jurisdiction over the case at the expiration of the term at which said judgment was rendered.

The effect of this contention, if successfully maintained, would be a dismissal of this proceeding for the reason that the case-made was not made and served within the...