Holt v. Holt

• Decision Date: 12 May 1909
• Docket Number: Case Number: 2209 OK Ter
• Citation: 23 Okla. 639,1909 OK 102,102 P. 187
• Parties: HOLT v. HOLT.
• Court: Oklahoma Supreme Court

1909 OK 102

102 P. 187

23 Okla. 639

HOLT v. HOLT.

Case Number: 2209 OK Ter

Supreme Court of Oklahoma

Decided: May 12, 1909

Syllabus

¶0 1. REFERENCE--Referees--Qualification--Interest. In order to disqualify, the interest of the judge must be in the subject-matter of the cause, and not merely in a legal question involved, and a referee, in an action growing out of a divorce suit brought to secure an enlargement of the alimony allowed within the scope of the reference, sits as the judge of the court, and will not be held disqualified solely and on account of alleged interest, where the facts relied on to establish such disqualification are that he was engaged in the practice of the law, and was then employed as an attorney in a cause in which the facts and legal questions involved were substantially the same as in the cause referred to him.

2. JUDGMENT--Vacation--Filing Papers in Original Action. Where an action is brought under section 562, art. 22, c. 66 (paragraph 4760) Wilson's Rev. & Ann. St. Okla. 1903, in the same court, between the same parties, as the original suit, and is given the same title, the fact that the clerk of the court designates the case by a different number than that given the original case will not divest the court of jurisdiction to try and determine the same, even thought the language of section 564, art. 22, c. 66 (paragraph 4762) Wilson's Rev. & Ann. St. Okla. 1903, be susceptible to the construction that the papers should be filed with those in the first case.

3. PLEADING--Absence of Reply--Waiver. In an action where defendant voluntarily goes to trial without a reply, when he is not bound to do so, he thereby waives a reply, and is regarded as consenting to go to the proof of the answer as if it were denied, and after the hearing and conclusion of the evidence, error is not committed by the trial court in overruling a motion for judgment on the pleadings on account of the absence of such reply.

4. ESTOPPEL--Pleading--Necessity--Sufficiency. An estoppel must be pleaded in order to enable a party to avail himself of it on the trial, and must be pleaded with particularity in order to constitute either a cause of action or defense. No intendments are indulged in favor of such plea, but it is incumbent upon the party pleading to aver all the facts essential to its existence.

5. DIVORCE--Claim in Property of Other--Successful Party--Fraud. Although the decree runs in favor of the wife, who was plaintiff, the husband is properly denominated the successful party, in an action for divorce and alimony when the wife against her wishes and desires was induced, on account of the exercise of fraud and undue influence on the part of the husband, to permit the same to be so brought and such decree rendered.

6. SAME--Alimony--Fraud. Where, on the granting of a decree for a divorce and alimony to a wife, it is made to appear in a subsequent proceeding brought to secure additional alimony that such decree was procured through fraud and undue influence of the husband, and that the property settlement made at the time was inequitable and unfair, and procured in the same way, the fact that the wife on the institution of such proceeding neither tendered nor offered to return the monthly or other payments received under the property settlement contract and decree will not preclude or estop her from bringing and maintaining such proceeding where the necessities of the wife are shown to have absorbed such payments.

7. SAME--Property Settlement--Fraud--Confirmation. The contract so entered into, and the decree rendered pursuant thereto, contained a provision obligating the husband to buy and deed to the wife a home or house to cost not to exceed $ 2,000. The findings of the referee disclose that the property bought and accepted by the wife under such agreement cost $ 2,700, and was purchased and accepted during the continuance of the monthly payments provided for. The deed executed and delivered contained the recital that the grantee "hereby agrees to accept said property and said allowance as full and complete settlement of all property rights between the parties hereto." Held that, under the facts disclosed by the record, the mere acceptance of such deed and the property so conveyed, did not in itself amount to a confirmation of the contract and an acquiescence in the decree in the absence of any finding or showing that the wife consented to the stipulation, or that it was made in the entire absence of any undue influence, with knowledge of her rights and not made under the wrongful supposition that the original contract and transaction was binding and valid.

Error from District Court, Oklahoma County; B. F. Burwell. Judge.

Petition by Eva Holt against Frank R. Holt. Judgment for plaintiff, and defendant brings error. Affirmed.

Flynn & Ames, for plaintiff in error.--The opinion contains copious references to brief of counsel.

T. F. McMechan, John H. Shirk, and R. G. Hays, for defendant in error.--On disqualification of referee: People v. Edmonds, 15 Barb. 529; McFaddin v. Preston, 54 Tex. 403. Presumption of undue influence in settlements which are unfavorable to wife: 19 A. & E. Enc. of Law 1248; Witbeck v. Witbeck, 25 Mich. 429; Cheuvront v. Cheuvront, 54 W. Va. 171. On question of equitable estoppel: Brigham Young Trust Co. v. Wagener (Utah) 40 P. 764; First Nat. Bank v. Ragsdale, 171 Mo. 168; Gray v. Gray, 83 Mo. 106; Willetts v. Willetts, 104 Ill. 122.

DUNN, J.

¶1 On June 22, 1904, a decree of divorce and alimony was rendered by the district court of Oklahoma county, in an action wherein Eva Holt, the defendant in error herein, was plaintiff, and Frank R. Holt, plaintiff in error, was defendant. Under this decree the care, custody, and control of an infant son of the parties was given to the defendant; the plaintiff was enjoined from interfering therewith, but permitted to visit him at all reasonable times; alimony was allowed in money and property in accordance with a written contract entered into by the parties. On the 14th day of April, 1906, a period of about 22 months thereafter, the plaintiff in that case filed her petition in the same court, in which she alleged that the defendant in the divorce action, through his fraud and conspiracy with his attorney, B. O. Young, and others, intimidated plaintiff into making application for the divorce, and prayed a judgment modifying the decree made therein as to the alimony and the custody of the child. The petition is voluminous, and it is not deemed essential to set the same out at length, in view of the necessity of reciting at some length the findings of the referee to whom the case was referred for trial, and to set out the petition would be to duplicate much of the material matters in the case. To this petition the defendant filed an answer, in which he admitted the marriage and the divorce decree and the provisions for alimony and custody of the child, but denied the allegations of intimidation and collusion, and for a further defense pleaded the acceptance of the allowances on the part of plaintiff, given her under the terms of the decree and contract as an estoppel to the maintenance of this action, also that a further consideration given was a confirmation of the contract, and insists in this court that the claim of the plaintiff is not entitled to the consideration of a court of equity by virtue of her retention of the fruits of the contract which she seeks to set aside. No reply appears to have been filed in the case, and on these pleadings, and the issues made thereby, the cause was referred to a referee, with full authority to take testimony, and to do all acts and things necessary to a complete and final hearing thereof, and to include in his report findings of fact and conclusions of law and recommendations of judgment in the premises. Evidence was taken during the summer of 1906, and the referee reported his findings of fact and conclusions of law, in all of which he sustained the contentions of plaintiff.

¶2 On the threshold of our investigation, and before looking into the case on its merits, we are confronted by a verified motion on the part of counsel for plaintiff in error, duly filed in, and denied by, the district court of Oklahoma county. This motion shows that the referee to whom the case was referred is an active practitioner of law, and that at the time of the hearing before him, he was employed in a case, pending in the district court of the county where he resided, wherein he represented a plaintiff, whose cause of action and the facts out of which it arose were practically identical with this case. To this motion was attached certified copies of pleadings in that cause, which show that the facts involved in the same, the issues presented, and the law applicable thereto were all substantially the same as the facts in the case at bar. No imputation is made as to the integrity of the referee or his fitness otherwise than the cause for disqualification here urged. It is contended that, by virtue of the fact that he was counsel for a litigant in a cause so closely allied in its controlling elements to the one then before him, this rendered him an unsuitable person to perform the duties imposed upon him by his appointment as referee. Knowledge of these things did not come to plaintiff in error or his counsel until after the hearing.

¶3 Paragraph 4452, Wilson's Rev. & Ann. St. Okla. 1903, provides that "a trial is a judicial examination of the issues, whether of law or fact, in an action," and the succeeding section provides that trial of actions for recovery of money or specific, real, or personal property shall be by a jury, unless waived, and paragraph 4454, provides that:

"All other issues of fact shall be tried by the court, subject to its power to order any issue or issues to be tried by jury, or referred as provided in this Code."

¶4 Under these statutes divorce actions, and the issues of fact growing out of the same,...