Hill v. Persinger

Decision Date09 May 1916
Docket Number6702.
Citation157 P. 744,57 Okla. 663,1916 OK 527
CourtOklahoma Supreme Court

Syllabus by the Court.

Where the defendants are served by publication, in an action to quiet title and a decree is entered according to the prayer of the petition, an appearance by motion to vacate and set aside the decree, based upon both jurisdictional and nonjurisdictional grounds, will be deemed and held a general appearance, and any defects in the service are waived, and the decree entered thereon validated.

Where the court has jurisdiction of the person and subject-matter a decree entered upon default is not void if the petition contain sufficient allegations to challenge a judicial examination.

Under section 4728, Rev. Laws 1910, the motion to vacate the decree and the notice served upon the adverse parties should be done and performed within three years after the date of such decree in order to comply with the requirements of such section.

Commissioners' Opinion, Division No. 3. Error from District Court, Custer County; James R. Tolbert, Judge.

Action by James H. Persinger against Nancy Emma Graham and others. Judgment for plaintiff, and defendants Ellen R. Hill and others, as heirs, bring error. Affirmed.

Geo. T Webster, of Clinton, for plaintiffs in error.

J. M Shackelford, of Clinton, for defendant in error.


In September, 1908, plaintiff James H. Persinger purchased the east half of the northeast quarter and the east half of the southeast quarter of section 6, in township 12, north of range 18, west of the Indian Meridian from John R. Graham, who procured title by will from his mother, Mary M. Graham. In April, 1910, Persinger instituted this suit to quiet title and procured service on the known and unknown heirs of Mary M. Graham by publication. A decree was entered quieting title in James H. Persinger on June 23, 1910. On July 24, 1913, the heirs filed a motion to vacate the decree on the grounds: (1) That the petition does not state facts sufficient to constitute a cause of action; (2) no legal service of summons or notice was made upon them; (3) that the court had no jurisdiction or authority to enter a decree; and (4) that during the pendency of the action, they had no actual notice thereof in time to appear and make their defense. This motion was overruled, and the cause brought here for review.

It will be observed that the parties against whom this decree was entered moved to vacate the same upon the grounds that the court had no jurisdiction, and because the petition did not state facts sufficient to constitute a cause of action. In presenting the motion to vacate the decree on both jurisdictional and nonjurisdictional grounds, defendants entered a general appearance, and any defects in the service were waived and the decree validated. Ziska v. Avey, 36 Okl. 405, 122 P. 722; Willet et al. v. Blake et al., 39 Okl. 261, 134 P. 1109. This motion gave the court jurisdiction of the person of the defendants, and in that respect validated the defective service. That the district court has jurisdiction of suits to quiet title cannot be questioned.

The next question urged is that the petition does not state facts sufficient to constitute a cause of action, and therefore the judgment is void. We do not think the question is presented by the record. The petition contained allegations that the plaintiff was the legal owner of the premises and in the actual and peaceable possession thereof; that he derived his title through John R. Graham, who received his title through the will from his mother, Mary M. Graham; that the defendant's claim to said title constituted a cloud upon the plaintiff's title. These facts are sufficient to challenge judicial examination thereof. At most the petition is merely defective, and a defective petition does not render the decree void. If the court made an erroneous finding based upon the facts alleged, the same would not be grounds for holding the judgment void. The petition in the instant case is sufficient to give the...

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