Jones v. Nicoma Park Radio and Television Service

Decision Date07 December 1965
Docket NumberNo. 40920,40920
Citation408 P.2d 770
PartiesJames JONES, d/b/a Four Palms Private Club, Plaintiff in Error, v. NICOMA PARK RADIO & TELEVISION SERVICE, Defendant in Error.
CourtOklahoma 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.

BLACKBIRD, Justice.

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:

'* * *

'MR. PLUESS: Comes now the defendant, James Jones, and objects to the ruling of the Court remanding the above styled case for the reason that the case was regularly scheduled for trial on the 9th day of December, 1963; that counsel for the defendant was engaged * * *

'THE COURT: No, he wasn't engaged either. You could have tried this case here as well as the one up in that Court.

'MR. PLUESS: That counsel for the defendant was engaged in a trial in the Destrict Court of Oklahoma County and so informed the Court. Whereupon, the Court and counsel unilaterally continued the case upon the jury docket until the 11th day of December, 1963, and notified counsel at 4:30 on the 9th day of December, 1963.

'THE COURT: When did you notify counsel, Roger?

'MR. PLUESS: Said notification was oral and was not as prescribed by the rules of this Court, and was not agreed to by counsel.

'THE COURT: It was agreed to by counsel. You informed me you would be here.

'MR. PLUESS: I said I would be here but I didn't agree to the setting. You set it down, and I feel I need to be here. And for the further reason that counsel for the defendant has learned that the defendant is unable to appear in Court on this date due to inclimate weather between this Court and the State of Kansas, where counsel understands the defendant to be at this time, and gives notice * * *

'THE COURT: Counsel has no proof of the fact that his client is in the State of Kansas. At this time he does not know where his client is, and if he has any witnesses to put on some proof as he contends, I would like for him to bring them in. The Court at this time is remanding the case to the Justice of the Peace Court, and the Court will allow you exceptions. * * *.'

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 is true the motion for continuance alleged that the plaintiff could not proceed to trial without the presence of the plaintiff, yet the only question presented to the court upon the motion for continuance was whether the motion should be sustained or overruled, and when the court overruled the same, the motion was disposed of, and nothing more. If, after overruling the case, the record would disclose the case was called for trial, and the plaintiff refused to offer the testimony, the court then would have the right to dismiss the case, but the record is silent as to any such proceeding, the record does not disclose that the plaintiff refused to offer testimony, nor does the record disclose the case was ever called for trial. The record simply disclosed that the court overruled the motion for continuance and dismissed the petition.

'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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