Ingram v. Mccready

• Decision Date: 26 March 1929
• Docket Number: Case Number: 18195
• Citation: 136 Okla. 20,1929 OK 141,276 P. 486
• Parties: INGRAM v. McCREADY.
• Court: Oklahoma Supreme Court

1929 OK 141

276 P. 486

136 Okla. 20

INGRAM v. McCREADY.

Case Number: 18195

Supreme Court of Oklahoma

Decided: March 26, 1929

Syllabus

¶0 1. Judgment -- Mortgages -- Motion by One Defendant to Vacate Judgment of Foreclosure as to Him for Want of Service of Summons--Notice of Motion to Vacate Held Sufficient to Give Court Jurisdiction of Purchaser at Foreclosure Sale.

Where judgment of foreclosure on real estate mortgage is entered in a cause and a sale of the real estate had thereunder, and thereafter one of the defendants in such action files a motion to vacate and set aside such judgment as to him on the grounds that the court was without jurisdiction for want of service of summons or process on him, and such movant gives reasonable written notice of such motion to vacate, and the hearing thereon, to all the parties to such action, including notice to the purchaser at such foreclosure sheriff's sale, held, that the notice so given was sufficient under the statute authorizing vacation of void judgments to give the court jurisdiction of such purchaser in the hearing and proceedings on such motion, and no reversible error is shown in the ruling of the court in denying the plea of the purchaser to the jurisdiction of the court made on the ground that he had not been a party to the action and was not made a party thereto by the motion and notice.

2. Same--Vacation of Judgment as Being Void as Against Defendant Sustained.

Record examined, and held, sufficient to sustain the ruling and order appealed from.

Commissioners' Opinion, Division No. 1.

Error from District Court, Pottawatomie County; T. G. Chambers, Assigned Judge.

H. L. Ingram appeals from ruling and order of the District Court of Pottawatomie on motion of C. H. McCready to vacate a judgment. Affirmed.

Saunders & Emerick, for plaintiff in error.

Wm. Blake, for defendant in error.

LEACH, C.

¶1 On January 11, 1926, C. W. Mellen, as plaintiff, obtained a judgment in the district court of Pottawatomie county, foreclosing a real estate mortgage given as security for notes sued upon, in which action and foreclosure judgment C. H. McCready, with other parties, was named as defendant, and notice of suit was given such named defendant by publication and default judgment rendered against him. An order of sale was issued in the cause, and a sheriff's sale of the land involved made on August 24, 1926, to H. L. Ingram, which sale was confirmed.

¶2 On October 19, 1926, C. H. McCready filed a motion, reciting that he made a special appearance for the purpose of the motion alone, to set aside and vacate the judgment so rendered in favor of Mellen, plaintiff, upon the grounds that the purported service by publication on the movant was void on its face and insufficient to confer jurisdiction of C. H. McCready, for the reason that the person named therein as defendant is designated C. H. McReady, when in fact his name is McCready; that the affidavit, in pursuance of which the purported service by publication was had, does not state as a fact that movant, named as C. H. McReady, was a resident of the state of Arizona or a nonresident of the state of Oklahoma, or absent therefrom, but merely recites that affiant therein was so informed, and it is therefore based wholly upon hearsay; that the affidavit for service by publication fails to set forth any facts or acts showing diligence to obtain service within the state of Oklahoma; that at the time of bringing said action, and for many years prior thereto and during all the time said action was pending, C. H. McCready was an actual, well-known resident of and maintained offices within the city of Tulsa; that from the time of filing said cause until judgment was rendered, C. H. McCready was not absent from the state of Oklahoma for a period to exceed four days; that he had no notice or knowledge in any way that the action was pending until the latter part of September, 1926; that the plaintiff did not mail a copy of the petition with a copy of the publication notice attached thereto to C H. McReady, styled C. H. McReady, within six days after the first publication of notice was made, nor did plaintiff file an affidavit in the cause reciting that the residence or place of business of said defendant was unknown to him and could not be ascertained by any means within his control; that said judgment is void on its face. Movant prayed that the judgment rendered against him be held void, set aside, and canceled.

¶3 Written notice, with a copy of the motion attached thereto, showing date when such motion would be presented, was given all parties to the action by delivery of the notice to them, including delivery to H. L. Ingram, the purchaser at the sheriff's sale. When the motion came up to be heard before the court, the plaintiff, Mellen, appeared by his attorneys, Saunders & Emerick, who interposed an oral objection to the jurisdiction of the court as to H. L. Ingram in the following language:

"At this time we appear also for H. L. Ingram, and interpose objections to the jurisdiction of the court for the reason the notice served upon Ingram does not give jurisdiction to the court to hear any matter pertaining to him concerning any matter set forth in the motion, Ingram not having been a party to this action and the records so show"

--which objection was overruled with exception. The plaintiff, Mellen, objected to the introduction of any testimony concerning or seeking to vacate the judgment for the reason the application to vacate did not conform to the provisions of section 256 of the Oklahoma Compiled Statutes, and upon the same ground moved to strike the evidence at its close, which objection and motion were denied with exceptions. Such objections and motion are the only ones shown in the record of the proceedings at the hearing upon the motion except the exception of the plaintiff to the order of the court sustaining the motion.

¶4 The trial court sustained the motion to vacate the judgment as to the movant, C. H. McCready, on the ground the same was void. The journal entry of judgment or order vacating the former judgment is in part as follows:

"And now, on this November 15, 1926, this cause came on to be heard upon the motion filed herein by C. H. McCready to set aside and vacate the judgment rendered in this cause on January 11, 1926; the plaintiff appeared by Saunders & Emerick, the defendant C. H. McCready appeared by his attorneys of record, and H. L. Ingram appeared specially by Saunders & Emerick, his attorneys, for the purpose only to question the jurisdiction of the court as to him. Whereupon the said H. L. Ingram interposed an objection to the introduction of any testimony in said cause as affecting his rights therein as purchaser at the sheriff's sale, for the reason that the said H. L. Ingram was not and is not a party to this action, and for the reason that the court does not have jurisdiction over the said H. L. Ingram, he having been served only by notice, as is shown by the proof of notice filed herein, and appears only to challenge the jurisdiction of the court; the court overruled his objection and held the service of notice sufficient to give the court jurisdiction over the said H. L. Ingram, to which ruling of the court the said H. L. Ingram duly excepted and objected at the time and had his exceptions allowed. The said H. L Ingram gave notice in open court of his intention to appeal to the Supreme Court of the state of Oklahoma from the decision of said court, and said notice was ordered spread of record as provided by law. For good cause shown, it is ordered that the said H. L. Ingram be and he is hereby granted 60 days from this date in which to make and serve case-made. * * *"

¶5 From the order and ruling of the court, the said H. L. Ingram brings this appeal, and as grounds for reversal sets forth the following in his petition in error:

"(1) That said court erred in overruling the motion of the said H. L. Ingram for a new trial.

"(2) Said court erred in not rendering judgment for the said H. L. Ingram, plaintiff in error, on the pleadings.

"(3) Said court erred in not rendering judgment for the plaintiff in error, H. L. Ingram, on the evidence.

"(4) Said court erred in admitting evidence on the part of the defendant in error which was over the objections of the said plaintiff in error, H. L. Ingram, which was excepted to at the time.

"(5) Said court erred in questions of law occurring at the trial."

¶6 After referring to the assignments of error, it is stated in the brief of plaintiff in error, Ingram:

"As there is only one question involved in this case, we will argue all the assignments together, that is: That the court never, at any time during the proceedings, acquired jurisdiction of the said H. L. Ingram, and that this court does not have jurisdiction of the said H. L. Ingram for the reason that the said H. L. Ingram was not a party to the suit and relied solely upon the record, which was fair on its face, in the purchase of the said real estate, which was offered for sale at public outcry by the sheriff after due notice given upon a judgment obtained in the district

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