Holloway v. Hall
| Decision Date | 07 September 1920 |
| Docket Number | 9744. |
| Parties | HOLLOWAY ET AL. v. HALL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Since the adoption of sections 5812, 5816, Rev. Laws 1910, where parties had knowledge of the alleged grounds of the disqualifications of the trial judge for more than three days prior to the trial, and did not avail themselves of the procedure prescribed by section 5816, they cannot urge the disqualification on appeal, or in a collateral attack, on the judgment rendered and orders made by said judge.
Additional Syllabus by Editorial Staff.
Where the disqualification of a judge is considered a matter of public policy, a waiver will not be allowed; the judge is not authorized to sit in the case, even with the consent of the parties, and his judgment is void.
Error from District Court, Carter County; T. B. Orr, Special Judge.
Action by Ola Holloway and others against Mary P. Hall and others. From an order refusing to vacate a certain judgment and orders, plaintiffs bring error. Affirmed.
Geo. A Ahern and I. R. Mason, both of Ardmore, for plaintiffs in error.
H. C Potterf and Earl Q. Gray, both of Ardmore, for defendants in error.
The appeal in this case was taken by the plaintiffs in error plaintiffs below, from the order of the district court of Carter county, refusing to vacate a certain judgment and orders of said court in a foreclosure proceeding originally instituted in said court by Mary P. Hall and Henry T. Smith, for personal judgment and foreclosure against Ola Holloway and D. E. Allen. The alleged grounds for vacation of the judgment were that Judge W. F. Freeman, who tried several features of the case, was disqualified by reason of the fact that Ola Holloway was his sister-in-law and that said judgment and orders were therefore void. The other grounds for vacation of said judgment were on account of certain irregularities in the proceedings.
We will briefly refer to the history of the litigation. The suit was originally instituted against Ola Holloway, the original mortgagor, and D. E. Allen, who purchased the land and assumed the indebtedness. A demurrer was sustained to the defendant Allen's answer, and he failed to plead further. Judgment was entered against him as prayed for in plaintiffs' petition; Judge Eddleman being the trial judge at said time. No appeal was taken from this judgment, and after the expiration of six months the land was sold to Edward R. Holmes and Ralph H. Holmes. This sale was confirmed on November 4, 1915, by order of Judge W. F. Freeman. No appeal was taken from the confirmation of the sale. On January 3, 1916, following, the defendants commenced proceedings to attack the judgment, sale, and confirmation, which proceedings were had before Judge Freeman, as the result of which the confirmation of the sale was set aside, and from this order the plaintiffs appealed. Judge Freeman declined to fix a supersedeas bond, or to extend the time to make and serve case-made. The case-made, however, was served within 15 days, and Judge Freeman then refused to sign and settle it, which resulted in a mandamus proceeding being commenced in this court to compel him so to do. These proceedings resulted in Judge Freeman signing and settling the case-made. In the appealed case of Hall v. Holloway, 62 Okl. 192, 162 P. 188, this court held that Judge Freeman erred in setting aside the sale, and reversed the case, with directions to confirm the sale and to order a deed issued to the purchaser, and judgment was entered by Judge Freeman accordingly.
Subsequently, the defendants in the original action, Allen and Mrs. Holloway, sought to enjoin the enforcement of the deficiency judgment. At the hearing of the application for temporary injunction, Judge Freeman suggested that possibly he was disqualified, whereupon attorneys for plaintiffs in error herein waived the disqualification. The temporary restraining order was denied, and on the 10th day of May, following, plaintiffs in error filed their pleading, asking for his disqualification of the judge, and pursuant to which he entered his disqualification. Execution was issued on the deficiency judgment, and property alleged to be that of D. E. Allen was sold. At this sale Allen became the purchaser, and paid the sheriff the amount bid. Upon Judge Freeman entering his disqualification, T. B. Orr was agreed upon as special judge, and, after hearing, the amended petition to vacate the judgment and orders was denied, and the sheriff directed to pay the money deposited with him by D. E. Allen, as the purchase price of said land, to the plaintiffs in satisfaction of their deficiency judgment.
If the judgments and orders...
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