Knell v. Burnes

• Decision Date: 09 March 1982
• Docket Number: No. 55600,55600
• Citation: 1982 OK 35,645 P.2d 471
• Parties: Fred KNELL, Appellant, v. Doris C. BURNES, Appellee.
• Court: Oklahoma Supreme Court

Page 471

645 P.2d 471

1982 OK 35

Fred KNELL, Appellant, v. Doris C. BURNES, Appellee.

No. 55600.

Supreme Court of Oklahoma.

March 9, 1982.

Rehearing Denied May 11, 1982.

Appeal from the District Court of Cleveland County; Alma Wilson, judge.

Appellant appeals from the overruling of a "motion to reconsider." The trial court, after trying the case on the merits and taking the cause under advisement, rendered judgment for appellee without considering appellant's timely brief.

REVERSED.

Benedum & Benedum by Ben T. Benedum, Norman, for appellant.

Luttrell, Pendarvis & Rawlinson by Robert L. Pendarvis, Norman, for appellee.

HODGES, Justice.

The issue on appeal is whether appellant's petition in error should be dismissed for failure to file it within thirty days of rendition of judgment. ¹

An action was brought by Doris C. Burnes, appellee, against Fred Knell, appellant, for recission and cancellation of a contract for the purchase of a house. At the conclusion of the trial on May 15, 1980, the trial judge stated: "The Court will take this matter under advisement. If there are any further legal matters that counsel care to present to the Court you may do so within five days." At the appellant's request, briefing time was extended until May 27, 1980. When appellant's attorney

filed his brief on May 27, 1980, he discovered that judgment had been entered earlier in the day for appellee. A "motion to reconsider" was filed June 12, 1980, reciting these facts, and requesting that the court reconsider its decision after reviewing the authority cited in appellant's brief. The motion was denied on July 1, 1980, and appellant filed a petition in error July 31, 1980. The appellee filed a motion to dismiss, asserting that the court lacked jurisdiction.

I

The appellee argues that under the rule enunciated in Minnesota Mining & Mfg. Co. v. Smith, 581 P.2d 31 (Okl.1978), the motion to reconsider should be treated as a motion for new trial, and because the motion was filed sixteen days after the court's judgment was entered, it was filed out of time. Except for the grounds of newly discovered evidence, or unless it is impossible to obtain the record, or if the litigant is unavoidably prevented from filing an application for new trial, the motion must be filed within ten days after judgment is rendered. ² It is also asserted that the petition in error was untimely filed because it was not filed within thirty days of the trial court's rendition of judgment. ³ Based on these allegations, the appellee contends that this Court lacks jurisdiction to consider the appeal. We do not agree.

The relief sought is for the premature entry of the judgment after the proceedings had ended and the matter taken under advisement. Although a motion to reconsider is not a part of Oklahoma's statutory scheme of pleading, this Court has always considered motions based on the substantive allegations asserted rather than on the nomenclature given to the pleading by the litigant. The Court in every stage of the action must disregard technical errors or defects in the pleadings unless the substantial rights of the adverse party are affected. ⁴

The rendition of a premature judgment is an irregularity which may be vacated under § 1031(3) if the rights of the party have been prejudiced because of a failure to adhere to the established rules or mode of procedure in the orderly administration of justice. ⁵ In Zancaner v. Louisville & Nashville R. R. Co., 220 Cal.App.2d 836, 34 Cal.Rptr. 143, 146 (1963) it was held that judgment was entered prematurely when the court entered summary judgment in the morning of the thirteenth day of a thirty-day period previously allowed for the entry of a counteraffidavit and the counteraffidavit was filed in the afternoon. Likewise, a judgment should be set aside when it is prematurely entered before examination of solicited briefs of the parties after the case has been taken under advisement.

In Minnesota Mining, this Court held that the motion to reconsider filed in that case had to be treated as a motion for new trial because no facts were plead or proven to bring the motion within the purview of 12 O.S.1971 § 1031. ⁶ This statute

delineates the basis upon which the trial court may vacate or modify its judgment. One of the grounds is for mistake or irregularity in obtaining the judgment or order. We find that sufficient facts were plead in this case to distinguish it from Minnesota Mining, and that the motion falls within the ambit of § 1031(3). The motion to reconsider was filed within thirty days after the final order as required by 12 O.S.1971 § 1031.1, ⁷ and the petition in error was filed within thirty days after the motion to reconsider was denied.

II

At the hearing on the motion to reconsider, the trial court, without acknowledging that the brief had ever been examined, ruled that its failure to consider the brief submitted after the trial was not an irregularity which justified vacation of the judgment. We disagree.

The appearance of justice is often as important as the proper administration of justice. The purpose and policy of the law is that a judge should afford to every person legally interested in a proceeding the full right to be heard according to law. ⁸ If the court sets a deadline when a case will be decided, and the opportunity to present authority to support the litigant's position is denied by premature entry of judgment, the judgment should be vacated upon a timely application to do so. ⁹

REVERSED.

IRWIN, C. J., BARNES, V. C. J., and LAVENDER, SIMMS, DOOLIN and HARGRAVE, JJ., OPALA, J., concurring in result.

WILSON, J., disqualified.

OPALA, Justice, concurring in result:

This appeal cannot be treated as impervious to attack for jurisdictional infirmity so long as our pronouncement in Minnesota Mining and Manufacturing Company v. Smith ¹ stands as viable precedent. Because Minnesota impermissibly restricts the trial court's statutory term-time vacation power and should hence be overruled, I concur in the court's refusal to dismiss this appeal. Were I today writing for the court, I would expressly withdraw Minnesota from the body of efficacious case law.

I. THE FACTS

Judgment was rendered May 27, 1980. Some sixteen (16) days later, on June 12, appellant moved the trial court to "reconsider" its decision. His motion was heard and denied July 1. The appeal was lodged July 31.

II. THE ISSUE

The issue presented by appellee's dismissal motion is whether the trial court's statutory term-time power under 12 O.S.1971 § 1031.1 may be invoked-by motion filed more than ten (10) days but less than thirty (30) days after judgment-on grounds that were available for timely assertion in a new-trial motion under 12 O.S.1971 § 653. For the reasons to be stated, my answer to this question is in the affirmative.

III. THE CLAIMED JURISDICTIONAL FLAW

Appellee claims this appeal was not timely brought. For dismissal she relies on Minnesota When the May 27 judgment was rendered, the time allowed appellant for filing his brief below had not yet expired. While appellee concedes that premature rendition of judgment does constitute a valid vacation ground authorized by § 1031(3), ⁷ she urges that the irregularity charged here was in existence and known to appellant in time to move for a new trial under § 653. In short, appellee contends that because the June 12 motion was rested on a ground which should have been asserted earlier, it constituted a belated new-trial request that will not extend appeal time. According to appellee, the thirty-day time for commencement of an appeal began to run from May 27-the judgment date-and not from July 1 when reconsideration motion was denied.

and urges that under that decision any request for relief from a judgment-whatever its given name or title-if brought more than ten (10) days after judgment, ² even though filed within thirty (30) days of its rendition, ³ is a belated new-trial motion ⁴ which does not extend the thirty-day limit for commencing an appeal in this court, ⁵ unless the ground specified in the "delayed" request for relief is one that (a) is authorized by § 1031 ⁶ and (b) could not have been invoked by a timely new-trial motion.

The tenor of appellee's argument for dismissal doubtless mirrors a widely-held belief among the trial bench and bar that Minnesota condemns-as belated and ineffective new-trial motions-all those term-time ⁸ attempts at judgment vacation which rest either on unspecified grounds or on those that were available for inclusion in a timely new-trial motion. My own view of Minnesota tends to be the same as that of the trial bench and bar. See footnote 3, Morgan, Delayed Attacks on Final Judgments, 33 Okla.L.Rev. 45 (1980).

IV. MINNESOTA IMPERMISSIBLY RESTRICTS CODIFIED TERM-TIME VACATION POWER

The provisions of § 1031.1 are declaratory of the common law. They codify the Anglo-American concept of control which trial judges are allowed to retain over judgments for a limited time following their rendition. The power so reposed in the trial bench is entirely unrestricted by both the § 1031 grounds for vacation and by the § 653 time limit for filing a new trial motion. ⁹ Failure timely to invoke § 653 relief has never been a bar to the exercise of term-time vacation power. ¹⁰ The post-judgment

remedies available to a defeated litigant via a new-trial motion under § 653 and via vacation efforts under § 1031.1 are indeed separate and distinct, though concededly overlapping and cumulative. Each may be invoked independently of the other. Minnesota impermissibly abridges the trial court's codified term-time vacation power by limiting its invokability, availability and exercise solely to those specified § 1031 grounds which were not available for inclusion in a new-trial motion. ¹¹

V. SUMMARY

Trial court's term-time vacation power-exercisable even after the expiration of 30 days following rendition of judgment if timely invoked within the...