Hopkins v. McClure, No. 3060.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPHILLIPS, HUXMAN, and MURRAH, Circuit
Citation148 F.2d 67
PartiesHOPKINS v. McCLURE.
Decision Date10 March 1945
Docket NumberNo. 3060.

148 F.2d 67 (1945)

HOPKINS
v.
McCLURE.

No. 3060.

Circuit Court of Appeals, Tenth Circuit.

March 10, 1945.


148 F.2d 68

George Bingaman, of Purcell, Okl., for appellant.

Ram Morrison, of Oklahoma City, Okl., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

This appeal challenges the judgment of the United States District Court for the Eastern District of Oklahoma, which ordered payment of an alimony judgment out of funds realized from condemnation proceedings, and held in the registry of the court for distribution to the owners of the land taken.

On September 26, 1942, the United States Government, acting by and through its Special Attorney Curtis P. Harris, and under authority of the Second War Powers Act, 1942, 56 Stat. 177, 50 U.S.C.A.Appendix, § 632, filed condemnation proceedings against a tract of land in Cleveland County, Oklahoma, allegedly owned by Ruth Idell Hopkins, appellant here, her father E. E. Hopkins (also known as Ernest E. Hopkins), J. W. Hopkins and H. C. Freeney. Pursuant to notice to all interested parties, the trial court on December 15, 1942, tried the title to the tract of land and adjudged "a life estate to Ruth Idell Hopkins, subject to the occupancy rights of Ernest E. Hopkins, remainder in Ernest E. Hopkins or his heirs," and on the same date appellant appearing by and through her attorney of record, filed a demand for jury trial on the fair cash market value of the lands taken by the Government. On the trial of the case the jury fixed the value of the land "belonging to E. E. Hopkins and Ruth Idell Hopkins" at $2,800, and on the same date the court entered judgment on the verdict reciting that the fair, cash market value of the land owned by "Ruth Idell Hopkins, in full fee simple title" was $2,800.

On October 15, 1943, Clay McClure (formerly Mrs. E. E. Hopkins, and appellee here), with permission of the court, filed a petition in intervention in the condemnation proceedings alleging that on August 12, 1943, she had been granted a divorce from E. E. Hopkins in the District Court of Oklahoma County, and a judgment of $1,872.50, as alimony and attorney's fee. The petition sought to enforce a first and prior lien against the interest of E. E. Hopkins in the fund held by the Court Clerk under the condemnation judgment, on the grounds that the alimony judgment by its terms granted her a first and prior lien against the property of E. E. Hopkins. It was specifically alleged that E. E. Hopkins owned an interest in the real estate involved in the condemnation proceedings, having a value in excess of $2,000, and that he was entitled to receive as just compensation for his interest in the land taken, a sum of money in excess of $2,000.

When the matter came on for hearing on October 25, 1943, neither Ruth Idell Hopkins nor her father, E. E. Hopkins, appeared and the court found that they had been notified of the hearing, and adjudged them in default. Judgment was entered decreeing that E. E. Hopkins owned an "estate" in the land involved and that the alimony judgment was a first and prior lien against that interest, as represented by the condemnation fund. Accordingly, it ordered the Clerk to satisfy the judgment lien out of the $2,800 fund by issuing his voucher to Clay McClure in the sum of $1,872.50.

148 F.2d 69

On the following November 27, appellant, Ruth Idell Hopkins, moved to vacate the order allowing the petition in intervention and to strike the same, on the grounds that neither she nor her attorney had notice of the motion for leave to intervene, nor was either of them served or furnished with a copy of the said petition; that the leave to intervene was granted upon an ex parte hearing without notice to, or knowledge of, appellant or her attorney of record, and that the petition should be stricken on the further grounds that upon its face Clay McClure could not have any lien or claim against the condemnation fund. On the same date the appellant moved to vacate the default judgment, alleging that "by the fraud of Clay McClure and her attorney, Curtis P. Harris" she did not receive notice of the hearing and was thereby prevented from appearing on October 25, 1943, when the default judgment was entered. She alleged that the land condemned by the Government, and represented by the condemnation fund, was a part of the homestead allotment, owned and occupied by her mother, a member of the Choctaw-Chickasaw Tribe of Indians, until shortly prior to her death in 1939, when she deeded the said land to her husband E. E. Hopkins in trust for appellant as a gift from the mother to her minor daughter. That she was at the time of the institution of the...

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10 practice notes
  • National Discount Corp. v. O'MELL, No. 11299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 18, 1952
    ...of the execution. On appeal the question presented is whether the judgment conforms to the complaint. Hopkins v. McClure, 10 Cir., 148 F.2d 67, 69. The writ of execution is not the judgment. Its function is to make effective the prior judgment of the Court. United States v. Whitehead, D.C.E......
  • Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, No. 74-2053
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1975
    ...Practice P 8.10 at 1661-62 (1974). 4 Accord United States v. Borchers, 2 Cir. 1947, 163 F.2d 347; Hopkins v. McClure, 10 Cir. 1945, 148 F.2d 67; United States ex rel. Motley v. Rundle, E.D.Pa.1972, 340 F.Supp. 807; 10 Wright & Miller, Federal Practice and Procedure § 2688 5 We do not co......
  • United States v. CERTAIN PARCELS OF LAND, ETC., Civ. A. No. 2515
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 31, 1952
    ...of the subject matter and of the parties even though the Rules of Federal Procedure do not apply. Hopkins v. McClure, 10 Cir., 148 F.2d 67; Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. McCrady-Rodgers acquired title to the property prior to the G......
  • United States v. Kansas City, Kan., No. 3339.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 6, 1946
    ...490; Demulso Corp. v. Tretolite Co., et al., 10 Cir., 74 F.2d 805; Crutcher v. Joyce, 10 Cir., 134 F.2d 809; Hopkins v. McClure, 10 Cir., 148 F.2d 67; Skirvin v. Mesta, 10 Cir., 141 F.2d 668. It is only when the judgment disposes of the case in its entirety that an appeal will lie; and an o......
  • Request a trial to view additional results
10 cases
  • National Discount Corp. v. O'MELL, No. 11299.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • February 18, 1952
    ...of the execution. On appeal the question presented is whether the judgment conforms to the complaint. Hopkins v. McClure, 10 Cir., 148 F.2d 67, 69. The writ of execution is not the judgment. Its function is to make effective the prior judgment of the Court. United States v. Whitehead, D.C.E......
  • Nishimatsu Const. Co., Ltd. v. Houston Nat. Bank, No. 74-2053
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • July 18, 1975
    ...Practice P 8.10 at 1661-62 (1974). 4 Accord United States v. Borchers, 2 Cir. 1947, 163 F.2d 347; Hopkins v. McClure, 10 Cir. 1945, 148 F.2d 67; United States ex rel. Motley v. Rundle, E.D.Pa.1972, 340 F.Supp. 807; 10 Wright & Miller, Federal Practice and Procedure § 2688 5 We do not co......
  • United States v. CERTAIN PARCELS OF LAND, ETC., Civ. A. No. 2515
    • United States
    • United States District Courts. 3th Circuit. United States District Court (Eastern District of Pennsylvania)
    • January 31, 1952
    ...of the subject matter and of the parties even though the Rules of Federal Procedure do not apply. Hopkins v. McClure, 10 Cir., 148 F.2d 67; Missouri-Kansas Pipe Line Co. v. United States, 312 U.S. 502, 665, 61 S.Ct. 666, 85 L.Ed. McCrady-Rodgers acquired title to the property prior to the G......
  • United States v. Kansas City, Kan., No. 3339.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • December 6, 1946
    ...490; Demulso Corp. v. Tretolite Co., et al., 10 Cir., 74 F.2d 805; Crutcher v. Joyce, 10 Cir., 134 F.2d 809; Hopkins v. McClure, 10 Cir., 148 F.2d 67; Skirvin v. Mesta, 10 Cir., 141 F.2d 668. It is only when the judgment disposes of the case in its entirety that an appeal will lie; and an o......
  • Request a trial to view additional results

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