Howe v. Farmers & Merchants Bank

Decision Date25 October 1927
Docket NumberCase Number: 17975
Citation1927 OK 373,129 Okla. 140,263 P. 673
PartiesHOWE et ux. v. FARMERS & MERCHANTS BANK.
CourtOklahoma Supreme Court
Syllabus

¶0 1. Judgment--Grounds for Vacation--Misinterpretation of Court's Language not "Unavoidable Casualty."

The failure of a party to properly interpret plain and unambiguous language of the trial court is not an unavoidable casualty within the meaning of subdivision 7, section 810, C. O. S. 1921, and the petition to vacate judgment alleging such grounds only is properly denied.

2. Same--Defenses Adjudicated on Appeal not Available on Subsequent Petition to Vacate Judgment.

Where grounds of defense have been alleged, the issues tried and judgment rendered thereon in the trial court and appealed to the Supreme Court and here reviewed and the appeal is held to be without merit, such grounds are not available as a defense under the provisions of section 814, C. O. S. 1921, unless accompanied by an allegation of fraud in the procurement of judgment sought to be vacated.

Error from District Court, McIntosh County; E. A. Summers, Judge.

Action by the Farmers & Merchants Bank against R. D. Howe et ux. From the judgment denying a petition to vacate judgment, defendants appeal. Affirmed.

R. D. Howe, for plaintiff in error.

Clark Nichols, for defendant in error.

PER CURIAM.

¶1 On the 25th day of August, 1924, the Farmers & Merchants Bank brought an action against R. D. Howe and Bertha Howe for recovery on a promissory note and for the foreclosure of a mortgage. This cause is designated in the trial court as No. 4141. On the same day the said bank commenced an action in the trial court against R D. Howe for recovery on various unsecured notes, which cause is designated in the trial court as No. 4142. The first cause herein designated, the issues being joined, was tried before a jury and submitted upon a single interrogatory, and the answer to the interrogatory returned by the jury was favorable to the said bank.

¶2 It appears from the pleading in this cause that the answer and defense set up by the defendants therein was the same in each case, and the cause designated as 4142 was submitted to the court upon the evidence adduced before the jury in the previous cause. The court adopted the findings of the jury, and rendered judgment against the defendants, R. D. Howe and Bertha Howe, in the first case, and against R. D. Howe in the second case.

¶3 An attempt was made to appeal these cases. The case-made in each was joined together and attached to one petition in error filed in this court and docketed as cause No. 16459.

¶4 The attempted appeal was dismissed because it was duplicitous. Mandate therein was issued to the district court of McIntosh county containing the following provisions:

"To the Honorable Judge of the District Court of McIntosh County in said State of Oklahoma:
"Whereas the Supreme Court of the state of Oklahoma did on the 17th day of November, 1925, render an opinion in the above-entitled cause appealed from the district court of McIntosh county, dismissing the appeal,
"Now, therefore, you are hereby commanded to cause such dismissal to show on record in your court and to issue such other process and to take such other and further action as may be in accord with the right and justice and said opinion."

¶5 After the mandate was received and filed by the clerk of the trial court, the said R. D. Howe and Bertha Howe filed in said court their petition to set aside these judgments, styled Farmers & Merchants Bank, Plaintiff, v. R. D. Howe and Bertha Howe, Defendants, case Nos. 4141 and 4142, under the seventh subdivision of section 810, C. O. S. 1921, and under section 812, C. O. S. 1921, caused summons to issue and be served upon the Farmers & Merchants Bank, and, set forth in said petition that by unavoidable casualty they were prevented from prosecuting the appeal to this court for the reason that in the trial of the case No. 4142 in the district court the court made the following order:

"After the introduction of the notes the entire record in case No. 4141, so far as the same affects the question as to whether or not the $ 4,000 mentioned in the pleadings in this case and the evidence in cause No. 4141 will be taken and considered as the record in this case on the question as to whether or not the $ 4,000 was taken by the president of the bank as an individual to secure his individual liability and to indemnify him on account of his signing the supersedeas bond for the defendant, Howe, or whether taken by him as an officer of the bank as an escrow deposit, and the court will consider the record as the record of this case, and the cause will be submitted upon the offer of the notes and the record of case No. 4141, including the interrogatory and response and answer thereto by the jury.
"In this connection the court will say that he would not be bound by the response of the jury to the interrogatories, but the same will be by him as advisory, but as a matter of fact he will follow the answer of the jury no matter which way it goes. In other words, there is sufficient evidence to justify the jury in finding in favor of either the plaintiff or defendant, and whatever response the jury makes will control the judgment of the court in this case.
"All exceptions and questions of law reserved by the parties in case No. 4141 are also reserved in the record in this case, the same as if this case was tried by a jury and the record made up as in the other case and a response had and judgment rendered on the response"

--and assert that the above order was a consolidation of the two cases in the court below, and by such order they were led to believe that the two cases could be consolidated in the Supreme Court. The petition to vacate said judgment set forth therein alleged the petitioners to have a good and valid defense to the original action, and sets forth as said defense in substance the allegations of the answer filed to plaintiff's petition in the original actions.

¶6 Without sanctioning the procedure followed by the plaintiffs in error in filing one petition in the trial court to vacate these judgments, wherein the parties are not alike interested in both judgments, we shall determine the questions presented by this appeal with a view of settling this litigation.

¶7 We can see no ambiguity in the language of the trial court above set out, which the plaintiffs in error insist is an order of the court. The language used by the trial court was so used in the trial of the cause No. 4142, and plainly states that the introduction of the notes and the entire record in case No. 4141, in so far as it affects the particular question mentioned therein, together with the evidence in said cause No. 4141, will be taken and considered in this cause (4142), and that all exceptions and questions of law reserved by the parties in cause No. 4141 are also reserved in the record in this case (4142), the same as if tried by the jury, and the record made up as in the other case. There were no objections by the plaintiffs in error to the action of the trial court in this respect, and no exceptions taken thereto. The language used is not susceptible of misinterpretation, nor can it be considered by any reasonable interpretation as a consolidation of the actions. The record in the two cases was before the trial court when the petition to vacate these judgments was tried. The records as filed in this court show that cause No. 4141 was tried to a jury and an answer to a special interrogatory submitted was returned and a journal entry of...

To continue reading

Request your trial
2 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT