Hart v. Pharaoh

• Decision Date: 28 February 1961
• Docket Number: No. 38686,38686
• Parties: W. L. HART and Intervenor, H. E. Blalock, Plaintiffs in Error, v. O. W. PHARAOH, Intervenor, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1074

359 P.2d 1074

1961 OK 45

W. L. HART and Intervenor, H. E. Blalock, Plaintiffs in Error, v. O. W. PHARAOH, Intervenor, Defendant in Error.

No. 38686.

Supreme Court of Oklahoma.

Feb. 28, 1961.

Syllabus by the Court.

1. Where there is competent evidence to sustain an allegation that a litigant employed an attorney to represent him in a case, but that such attorney abandoned the case because of a misunderstanding of facts stated by opposing counsel, and judgment is taken without notice of abandonment by his attorney, such party has suffered an unavoidable casualty or misfortune which justifies the court in vacating the judgment so that complaining party may have his day in court.

2. A motion to vacate a judgment filed during the term in which the judgment was rendered is addressed to the sound judicial discretion of the trial court, and its ruling thereon will not be disturbed unless an abuse of discretion appears.

3. The district courts of this State have a wide and extended discretion in opening judgments and in setting aside or modifying proceedings had in said courts if done at the term in which the judgment or proceedings are had when all the parties are present before the court and no advantage is taken of either party.

4. A purchaser of real property from a party to a pending action is bound by the judgment rendered in such action against his grantor and acquires no greater right than his grantor. This rule applies without regard to the form of the action or whether the decree is erroneous.

5. In a proceeding to vacate a judgment in partition and cancel a sheriff's deed issued therein, it is discretionary with the trial judge as to whether the prevailing party should be required to make a tender of money or bond to protect the grantee in the sheriff's deed where money to pay for said deed is on deposit with the court clerk.

Appeal from District Court of Garvin County; Joe D. Shumate, Judge.

W. L. Hart, as plaintiff, sued to partition certain land. O. W. Pharaoh intervened. A judgment was entered decreeing partition. W. L. Hart elected to take the land at appraised value and deed was issued to Hart. O. W. Pharaoh filed a motion to vacate the judgment and to set aside sheriff's deed. H. E. Blalock took a deed from Hart and intervened in the action. Blalock and Hart appeal from the judgment vacating the partition judgment and canceling the sheriff's deed. Affirmed.

Hart & Burger, Pauls Valley, Looney, Watts, Looney & Nichols, Anna B. Otter, Oklahoma City, for plaintiffs in error.

R. B. Garvin, Pauls Valley, for defendant in error.

HALLEY, Justice.

W. L. Hart filed this action in the District Court of Garvin County on August 23, 1957, to partition and quiet title thereto, certain land in that county in which he alleged that he was the owner of an undivided one-sixth interest, and naming numerous defendants who are alleged to own various interests therein. Among the defendants were minors and full-blood Indians.

On September 26, 1958, the court rendered judgment for those persons found to own an interest in the surface rights and quieting their title thereto, and found that the land could not be partitioned in kind and Commissioners were appointed to partition the land. The Commissioners appointed, reported that the land could not be partitioned in kind and placed a value thereon of $1,250.

October 3, 1958, W. L. Hart, plaintiff, filed his election to take the land at the appraised value. On October 21, 1958, the court found that W. L. Hart had filed an election to take the land at the appraised value, and that he was the only one who had filed such election. The court ordered the sheriff to execute and deliver to W. L. Hart a deed conveying all of the land involved, and quieted title thereto in W. L. Hart.

October 30, 1958, O. W. Pharaoh intervened and moved the court to vacate its judgment of October 21, 1958, whereby the court had directed the sheriff to execute a deed to W. L. Hart and permit the intervenor to file an election to take the land at the value placed thereon, and to vacate the sheriff's deed conveying the land to W. L. Hart. He alleged that on March 6, 1958, he acquired title to an undivided 1/6th interest in land here involved, and on July 14, 1958, he filed in this Court his motion for leave to intervene, which was granted, and on the same day he caused to be filed his plea of intervention in the form of an answer and cross-petition, prepared and filed by attorney, Sam J. Goodwin, who on March 18, 1958, had been appointed by the court guardian ad litem for certain minor defendants, and on March 18, 1958, said attorney had filed an answer herein for intervenor defendants.

Intervenor Pharaoh alleged that he had relied upon Sam J. Goodwin to represent him and keep him advised as to the progress of the action; that prior to the filing of the Commissioners' report the attorney for plaintiff advised Sam J. Goodwin that plaintiff and this intervenor had an understanding with reference to said property, whereby Sam J. Goodwin was lulled into a false impression that this intervenor did not desire to file his election to take the property at the appraised price, and as a result did not advise intervenor of the filing of the return and report of the Commissioners; that while said attorney did not withdraw as attorney for this intervenor, his actions prevented intervenor from exercising his right to file an election to take the land at the appraised price; that he was not advised of the report of the Commissioners until late in the afternoon of October 29, 1958. He further claimed that all of the conduct of Hart and his counsel amounted to 'unavoidable casualty and misfortune' which would justify the court in setting aside the judgment in partition and invalidating and canceling the sheriff's deed issued under the authority of the partition judgment. Pharaoh asked permission to file his election to take the property at its appraised price.

On November 14, 1958, the trial court vacated the judgment of October 21, 1958, and canceled the sheriff's deed issued pursuant thereto. Hart and Blalock appealed.

The court found that no fraud was practiced by either party, but found that H. E. Blalock was not a bona fide purchaser, because he had purchased the property from W. L. Hart within the term of court in which the partition judgment was rendered, and was charged with notice that Hart's title was defeasible, and because the court refused to require Pharaoh to tender money into court.

The plaintiffs in error have submitted three propositions, the first of which is as follows:

'Vacation judgment of trial court constituted arbitrary abuse of discretion, not based upon established principles of law, nor based upon facts showing unavoidable casualty or misfortune, but rather pure negligence on part of attorney for Pharaoh, imputable to Pharaoh, in face of conclusive evidence Pharaoh and his attorney had notice of final hearing on partition confirming sale and approving sheriff's deed, and in face of conclusive evidence of rights of H. E. Blalock, as bona fide purchaser subsequently accruing.'

A careful study of the record and briefs in this case convinces us that the principal question to be determined is did Pharaoh's original attorney, Mr. Goodwin, so mislead Mr. Pharaoh as to justify the trial court in vacating the judgment granting W. L. Hart the right to take the land at the appraised price, as to deprive Mr. Pharaoh of his day in court and amount to such an unavoidable casualty or misfortune as to justify the court in entering the judgment vacating the judgment rendered?

It is admitted that Mr. Goodwin represented Mr. Pharaoh as well as others in this case. He testified as follows:

'Q. Did you appear on the date that judgment (September 26, 1958) was taken or signed by this Court? A. No, sir.

'Q. Did you have a conversation with Mr. Hart at the time you signed your name there? A. I did, sir.

'Q. Would you tell the Court the nature of that conversation? A. Yes, sir. Mr. Hart told me that he wanted to take judgment and he wanted me to okay the Journal Entry, and I said 'Fine. Have you taken care of my clients, particularly my Intervenor?' And he said, 'I have', and as to whether I read the entire judgment or not, I do not know; because he said that Pappy--now I could be in error, but in substance he said, 'Pappy and Pharaoh have worked out a settlement in this matter, or an agreement'--on or the two words.

'Q. Who did he refer to, if you know, when he said Pappy? A. Well, he was referring to the Plaintiff, W. L. Hart, his father, in this Petition, or at least, that's who I assumed he was referring to, because it is his father.

'Q. Then after Mr. Hart made that statement to you, did you do anything further? A. I did not. As far as I was concerned, I thought that the agreement had been worked out to their satisfaction, and I knew as to the judgment as to the minors and as to Abbie Gains was satisfactory, so I took no further steps in the case whatsoever.

'Q. Did you abandon this case as far as O. W. Pharaoh was concerned? A. Yes, sir.

'Q. Did you advise Mr. Pharaoh? A. I did not, sir.'

* * *

* * *

'Q. Mr. Goodwin, after the conversation with Mr. Hart which you have heretofore stated with reference to a settlement or an agreement with reference to this land between Plaintiff and Mr. Pharaoh, did you at any time after that proceed in this action as attorney for O. W. Pharaoh? A. I did not.

'Q. Did you advise Mr. Pharaoh of your withdrawal as such attorney representing him in this matter? A. I did not. May I make an explanation?

'Q. Yes, sir. A. At the time that Mr. Hart informed me that Mr. Pharaoh's interest, and Pappy, or his father's, interest, that he had a recent agreement on it, so far as I was concerned, that was correct, and my further running up expense for Orban Pharaoh electing to take or anything else would be surplus, because it had been effected as he had...