Herbert v. Wagg

• Citation: 27 Okla. 674,1910 OK 334,117 P. 209
• Decision Date: 16 November 1910
• Docket Number: Case Number: 269
• Parties: HERBERT v. WAGG et al.
• Court: Oklahoma Supreme Court

1910 OK 334

117 P. 209

27 Okla. 674

HERBERT v. WAGG et al.

Case Number: 269

Supreme Court of Oklahoma

Decided: November 16, 1910

E. M. Clark, Burford & Burford, and Dale, Bierer & Hegler, for plaintiff in error. William Blake, Victor O. Johnson, P. J. O'Shea, and Louis S. Wilson, for defendants in error.

DUNN, C. J.

¶1 This case presents error from the district court of Pawnee county. The action was originally begun on June 13, 1903, by W. H. Herbert and Mary B. Herbert, as plaintiffs, against S. R. Wagg, Leroy M. Brown, and approximately 65 other defendants. The object and purpose of the suit was to secure the cancellation of a warranty deed executed by Mary B. Herbert, on the 20th day of March, 1901, acknowledged May 28, 1901, and filed for record May 31, 1901, for 80 acres of land lying in Pawnee county, Okl., near the town of Cleveland. A second amended petition was filed in the case, and on the issues framed the trial was had. After taking the deed above referred to from the plaintiff, Mary B. Herbert, the defendant Wagg platted the land into lots and blocks, and the balance of the defendants in the case are purchasers of lots therein. The case between the plaintiff and S. R. Wagg to determine the question of the validity of the deed to the property involved was tried first, and a decree rendered thereon by the trial court, holding it to be a mortgage securing certain moneys previously loaned by Wagg to his grantor and her husband. The issues as to the other defendants, involving the question of whether they were bona fide holders for value, without notice, of the lots which they had purchased, were not tried at the time of the trial of the question of the validity of the deed, but an order was made by the court assigning the trial of these issues to referees. In the meantime, however, Wagg, against whom judgment had been rendered, had given a supersedeas bond and appealed his case to the Supreme Court of the territory of Oklahoma, which affirmed the judgment of the trial court, in an opinion reported in 19 Okl. 525, 92 Pac. 250. Thereafter Wagg appealed the case to the Supreme Court of the United States, which in a decision (215 U. S. 546, 30 Sup. Ct. 218, 54 L. Ed. 321) affirmed the conclusion reached by the lower courts, but decreed the cancellation of the deed in question. The second amended petition and the answer of S. R. Wagg and other material facts involved are set out at length in the opinion of the Supreme Court of the territory of Oklahoma; and hence we will not incorporate the same into this opinion, further than will be necessary for the discussion of the question now before us. The issues arising on the answer of the lot claimants were heard before referees appointed, and resulted in a judgment rendered on the 4th of October, 1907, in which all of the defendants in error in this appeal were held to have taken title to their lots in good faith, for value, and without notice of the rights or equities of plaintiff in error, and a finding as a result of the account had that S. R. Wagg was indebted to the plaintiff in error in the sum of $2,794.23, with interest from the 12th day of January, 1903, which was to be credited with the amount due on the original mortgage, with interest in accordance with its terms. It was ordered, however, that this portion of the decree await the mandate from the Supreme Court on the judgment from which Wagg had appealed. This statement is deemed sufficient for the purpose of disclosing the present situation of the case.

¶2 The question first presented to us grows out of the separate trial awarded the lot claimants, and which took place after Wagg had taken his appeal and filed supersedeas on the judgment against him. It is the claim and contention of plaintiff in error that, on Wagg taking an appeal and giving a supersedeas bond, all further proceedings in the trial court were thereby suspended, and that it was without power or jurisdiction to try the remaining issues in the case, notwithstanding the fact that they were collateral and independent matters to the judgment from which an appeal had been taken, and the enforcement of which had been stayed. There can be no doubt of the correctness of the rule laid down in the case of In re Epley, 10 Okl. 631, 64 Pac. 18, which is invoked by counsel for plaintiff in error, to the effect that when a case is brought within the jurisdiction of the appellate tribunal it is taken entirely out of the inferior court; the appeal necessarily removing the matter in controversy to the higher tribunal for review. But an appeal which is taken removes from the jurisdiction of the lower court only the matter involved in the judgment or order from which the appeal is taken. Other independent matters and collateral proceedings are not covered by the appeal, and the lower court retains its jurisdiction over them. The general rule applying in such cases is stated by Judge Elliott, in his work on Appellate Procedure, § 545, as follows: "Matters independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court. Such matters as the appeal does not cover are purely collateral or supplemental, lying outside of the issues framed in the case, or arising subsequent to the delivery of the judgment from which the appeal is prosecuted. The general rule that a case leaves the jurisdiction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over the case taken to the higher court." The rule there laid down finds support in many authorities, among which we may note the following: 4 Enc. L. & P. 251, note 21; 2 Cyc. p. 978; Hayes v. Frey et al, 54 Wis. 503, 11 N. W. 695; Kemp et al. v. National Bank of the Republic of New York, 109 Fed. 48, 48 C. C. A. 213; Line et al. v. State ex rel. Louder, 131 Ind. 468, 30 N. E. 703; Burnett v. Jackson, 27 Okl. 275, 111 Pac. 194. Also annotated case of Gray v. Ames, 5 Am. & Eng. Ann. Cas. 174.

¶3 Furthermore, it is to be noted that the case which primarily presented itself to the court was a contest between Mrs. Herbert and Wagg. If Wagg prevailed in that action, it would have been an end to all controversy, and no one could know prior to a trial that he would not be successful. With this contingency staring the court in the face, it determined to ascertain, first, whether or not Mrs. Herbert could sustain her claims; for there would be no necessity for an accounting or any further hearing from the multitudinous defendants if she did not. To ascertain in a brief hearing and a limited record this important preliminary fact was an act, not only in the discretion of the court, but one of manifest prudence. The court doubtless foresaw the magnitude of the trial which would follow an investigation of the rights of all of the different lot claimants, and, in order that such investigation might be based upon at least a probability of necessity, called, first, for hearing the issue between the plaintiff and the principal defendant, Wagg, and determined as between these parties the fact which would render at least approximately certain the necessity of litigating the rights of the other defendants. The hearing and determination of this fact was uncomplicated and not prolonged by the issues arising from the answers of the lot claimants. An incidental order in the journal entry of the decree which was rendered in the Wagg case recited the agreement by counsel on a referee to take the testimony for the purpose of determining the accounting demanded, and also the rights of the other defendants claiming an interest in the lots involved, to find what lots were sold to bona fide purchasers prior to the date the suit was instituted, and to find what lots were not sold, and fixing the right to intervene in all parties who had not been named as defendants, and who claimed an interest in the property. This order of reference and fixing its scope could have been made independently of the decree rendered, and its nature was unchanged by inserting therein. It might have been made a separate order, and a recitation of it in the journal entry embodying the judgment from which Wagg appealed in no wise changed its real status, or made it appealable by Wagg. Plaintiff, who is now complaining of the carrying out of this order, at the time it was made, made no objection and took no exception to it. Wagg, who took an appeal from the judgment, is not now complaining of the accounting, nor of the report of the referees. Hence the proceedings taken under the order were and are with the virtual acquiescence of all parties concerned.

¶4 Section 5787, Comp. Laws of Oklahoma 1909, provides that: "A separate trial between the plaintiff and any or all of several defendants may be allowed by the court, whenever justice will be thereby promoted." Action under the terms of this statute by the trial court is a matter within its discretion, and it will never be reversed on appeal, unless it can be clearly seen that such discretion was abused. Hoskinson v. Bagby, 46 Kan. 758, 27 Pac. 110; Rice & Floyd v. Hodge Bros., 26 Kan. 164; Gregg et al. v. Berkshire, 62 Pac. 550.¹

¶5 From the preceding discussion, it will be seen that, in the judgment of this court, there was no abuse of discretion on the part of the trial court in granting a separate hearing to the defendant Wagg. The record which was made on the trial, and which is now before us, including the briefs, approximates 2,700 pages of typewritten and printed matter, all of which, had it been taken at the time of the trial between plaintiff and Wagg, would have been entirely superfluous, worthless, and wasted, had Wagg finally prevailed. So that it was in the exercise of a sound and commendable discretion when the court granted Wagg a separate trial, and determined, first, the necessity of...