Jones v. Nicoma Park Radio and Television Service
Decision Date | 07 December 1965 |
Docket Number | No. 40920,40920 |
Citation | 408 P.2d 770 |
Parties | James JONES, d/b/a Four Palms Private Club, Plaintiff in Error, v. NICOMA PARK RADIO & TELEVISION SERVICE, Defendant in Error. |
Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Where, upon trial in the justice of the peace court, plaintiff obtains judgment and defendant appeals to the common pleas court, the latter court may, under appropriate circumstances, dismiss the appeal for want of prosecution on the part of said appellant, without a trial de novo.
2. The law does not require a vain and useless thing and the requirements of Tit. 68 O.S.1951 & 1961, sec. 1515 are inapplicable in a case where the property involved has not been in existence for sufficient length of time to enable its owner to return the same for taxation or to pay any taxes thereon.
Appeal from Common Pleas Court of Oklahoma County; Carl Traub, Judge.
After plaintiff in a justice of the peace case obtained judgment, defendant appealed to the Court of Common Pleas, which remanded the case to the justice of the peace court without a trial de novo. Defendant then appealed to this Court. Affirmed.
Otto Pluess, III, Oklahoma City, for plaintiff in error.
Woodie C. Acree, Nicoma Park, for defendant in error.
This is an appeal from an order the Court of Common Pleas of Oklahoma County, hereinafter referred to as the 'trial court', entered in an appeal to that Court from a judgment of one of said County's Justice of the Peace Courts against plaintiff in error, hereinafter referred to as 'defendant', in favor of defendant in error, hereinafter referred to as 'plaintiff'.
It appears from the record that after the appeal from the Justice Court was regularly set on the Common Pleas Court's decket for trial de novo, on December 2, 1963, the trial was postponed on the latter date until December 9, 1963. In the absence of defendant's counsel on December 9, 1963, the trial was again postponed until December 11, 1963. When the case was set for trial on the latter date, counsel for the defendant appeared and, according to the record, the following transpired:
After further colloquy between the court and counsel for the respective parties, the court entered the order appealed from herein, which said order, in material part, reads:
'* * *
'* * *; that this case was appealed by defendant and has been docketed regularly for trial three times, as follows, to-wit: December 2, 1963, at which time defendant was not ready; December 9, 1963, at which time defendant was not ready and on this date, at which time defendant is not ready, and the court finds that defendant has breached the terms of his appeal bond wherein he contracted to prosecute his appeal to effect and without unnecessary delay, and on motion of plaintiff in open court, the court finds that the appeal should be dismissed and the case remanded to the Justice of the Peace Court to proceed therein as if no appeal had been taken; * * *.'
Under 'Proposition II' of his brief, defendant argues that the order appealed from should be reversed because neither the trial court's Rule No. 10 providing for the filing, and hearing, of motions for the setting of civil cases on its jury trial dockets, nor its rule No. 17 requiring counsel to 'deliver or mail opposing counsel' copies of motions filed in cases, was complied with. Presumably this argument is directed only toward the hearing on December 11, 1963, at which the court entered the order herein appealed from. There is no indication in the record, nor any contention made, that the case was not regularly set for trial at an earlier date; and, as will be noted from defense counsel's hereinbefore quoted opening statement to the court, he represented that the case 'was regularly scheduled for trial on the 9th of December, 1963; * * *'. The quoted portion of the record also indicates that, on that date, the case was reset just to accommodate counsel for defendant, and that said counsel admitted to the trial court that he agreed to be present for the trial later. Defendant's brief contains no argument, or authorities, showing that the rules he seeks to invoke were ever intended to apply to a postponement situation like the one before us. We therefore find no merit in the statements and representations made under his 'Proposition II'. Defendant's 'PROPOSITION I' is:
'The authority of a trial court to dismiss an action is statutory and the statutory provisions were not followed.'
In support of this proposition, defendant cites McBride v. Cowan, 80 Okl. 72, 194 P. 208 as holding 'that the statutory grounds for dismissing a case must be followed * * *'; and, on the apparent premise that such grounds are confined to those set forth in Title 12 O.S.1961, § 683, he states that 'none of the grounds set forth in the statute could be a basis * * *' for the order appealed from. Defendant's brief also contains a partial quotation from 17 Am.Jur., 'DISMISSAL, ETC.', sec. 80 to support his position; but an examination of this section, from whose context the quotation is taken, is sufficient to demonstrate that it is inapplicable to the situation herein presented.
In the McBride case, supra, this court reversed an order of a district court overruling plaintiff's motion for continuance and dismissing his petition. In reaching this decision, we said:
'* * *
'While it may seem unreasonable that a trial court in passing upon a motion for continuance would overrule the same, and dismiss the plaintiff's cause of action without first calling the case for trial, yet in this the record discloses that condition to exist, and we are unable to sustain the judgment upon the record as it appears here. * * *'
It will be noted that the above case...
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...should have a reasonable opportunity to attend its trial." Goff v. Goff, 396 P.2d 513, 517 (Okla.1964); Jones v. Nicoma Park Radio & Television Serv., 408 P.2d 770, 774 (Okla.1965). Both Goff and Jones involved parties who voluntarily absented themselves from the proceedings, and we held th......
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