Lamb v. Alexander
| Decision Date | 26 February 1918 |
| Docket Number | Case Number: 7789 |
| Citation | 74 Okla. 250,179 P. 587,1918 OK 116 |
| Parties | LAMB v. ALEXANDER et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Quieting Title--Relief to Defendant.
The spirit of the Code of Procedure requires that, in so far as possible, all controversies and equities concerning a particular subject-matter, shall be determined in one proceeding; where in an action to recover real property and to quiet title thereto, the several defendants are required to set up in their answer the nature of their claims to the property, and one of the defendants in asserting his interest must necessarily state a cause of action against one of his codefendants in regard to the subject-matter, he has a right to maintain a cross-petition against such codefendant, and is entitled to have such judgment against such codefendant as the pleadings and facts justify.
2. Partnership -- Dissolution -- Action Between Partners.
Where the liabilities of a copartnership have been discharged, and the partners have entered into a contract dissolving the same and settling all the partnership affairs between themselves, and the contract of settlement has been executed by both parties, except as to one particular partnership transaction regarding which one of the partners fails and refuses to perform the contract, the other partner may maintain an action against him to enforce the contract in regard to such transaction.
3. Courts--Amendment of Records--Nunc Pro Tunc Order--Evidence.
The court may, at any time while a cause is pending and before a final judgment, upon proper showing and notice to the adverse party, by a nunc pro tunc order, amend and correct its records, so as to make them speak the truth, and it is not confined to any particular class of evidence, but may do so upon any competent evidence.
4. Attorney and Client--Action Between Attorneys--Issues and Proof.
Plaintiff and defendant, as attorneys, had a contract of employment with a third party in an action to recover 120 acres of land, whereby it was agreed that such third party should pay the plaintiff and defendant one-fourth of value of the land recovered. 'There were 120 acres of land recovered in said action. Subsequently the third party conveyed 30 acres of said land to the defendant. The plaintiff brings action against the defendant to recover a one-half interest therein, alleging that the 30 acres was conveyed to the defendant for services rendered under said contract of employment, and that the defendant took title to said land in his name for both plaintiff and defendant. The defendant in his answer denies that plaintiff has any interest in the land in controversy, and further alleges that the land was conveyed to him by the third party in consideration of services rendered the third party by the defendant individually. The plaintiff introduces testimony to establish that said land was conveyed to the defendant by the third party in consideration of services rendered under the contract of employment. The defendant offered testimony to prove that said 30 acres was conveyed to him by the third party in consideration of services rendered to third party by him, and not in consideration of the services rendered under contract of employment. On objection the court excluded such evidence as not being within the issue. Held, that the evidence offered by the defendant was within the issues and competent, and that the court committed prejudicial error in excluding the same.
This action was commenced on the 2d day of June, 1913, in the district court of Okmulgee county, by Taylor Hardridge against Frank F. Lamb and M. M. Alexander and others, to recover certain real estate lying in said county, and to have title thereto quieted against the defendants.
The petition of the plaintiff, Taylor Hardridge, asks not only for the possession of the premises involved in said suit, but also asks that the various defendants therein claiming interest in said premises be summoned to come into court and set up the nature of their claims.
On the 3d day of December, 1913, the defendant Alexander filed his answer and cross-petition wherein he claimed that he was the owner of an undivided one-half interest in and to the south 30 acres of the northeast quarter of the northwest quarter of section 27, township 15 north, of range 14 east, same being a portion of the lands set out in plaintiff's petition; that legal title to the same was in Frank F. Lamb, his codefendant, however the said Lamb held said property in trust for himself and the defendant Alexander; that the said Alexander and Lamb acquired title to the said land from Eli Hardridge through and by virtue of a contract of employment as attorneys to render legal services to the said Eli Hardridge in an action for the partition of certain lands in Okmulgee county, of which this 30 acres was a part; that the action for the partition of said land by Eli Hardridge was successful, and this 30 acres was deeded to Frank F. Lamb in pursuance to the contract of employment in trust for the use and benefit of Lamb and Alexander; and further that, by reason of a contract of dissolution of partnership between Lamb and Alexander, Lamb agreed to hold in trust said lands and conveyed an undivided one-half interest to Alexander. The defendant Lamb in his answer denies the contentions of his codefendant Alexander, as set forth in his answer and cross-petition, and claims that the said Alexander has no interest in said land, and that the said Alexander abandoned his contract of employment with Eli Hardridge by rendering no services thereunder.
On the 13th day of March, 1914, the regular judge, Wade S. Stanfield, suggested his disqualification, and there was a journal entry entered on that date showing that the said judge was disqualified, and the attorneys of all parties agreed that Ernest B. Hughes should try said cause, and it was so ordered in said journal entry. On the same day the cause came on for hearing before special judge, Ernest B. Hughes, as to the issues between plaintiff and defendants, and judgment was rendered for defendants and against plaintiff.
On the 16th day of March, 1914, the defendant Lamb filed a motion to strike the answer and cross-petition of the defendant Alexander for the reason that the same was not germane to the cause of action alleged in the plaintiff's petition, and the court had no jurisdiction to hear the same. On the 19th day of November, 1914, this motion was by the court, Judge Stanfield sitting, overruled, to which the defendant Lamb excepted. And on the same day the said defendant Lamb filed a demurrer to the an swer and cross-petition of the defendant Alexander which was by the court overruled, and to which ruling of the court defendant Lamb excepted.
On the 4th day of December, 1914, upon motion of the defendant Alexander, notice having been served upon the defendant Lamb of said motion and hearing thereof, the court, Judge Stanfield sitting, made and entered a nunc pro tunc order correcting the journal entry showing the disqualification of Judge Stanfield, making the journal entry show that the order of disqualification only extended to the issues between the plaintiff and defendants, and not as to the issues between the codefendants. To this nunc pro tunc order there were no exceptions taken by defendant Lamb.
On the 19th day of June, 1915, the issues between defendants Lamb and Alexander were tried by Judge Hughes, successor of Judge Stanfield. There was judgment for Alexander, and Lamb appeals.
Error from District Court. Okmulgee County; Ernest B. Hughes, Judge.
Action by Taylor Hardridge against Frank F. Lamb, M. M. Alexander and others, to recover realty and to quiet title, with answer and cross-petition by defendant Alexander, and answer thereto by defendant Lamb. Judgment for defendants against plaintiff, motion by defendant Lamb to strike the answer and cross-petition of defendant Alexander, and demurrer thereto overruled, and judgment for defendant Alexander as against defendant Lamb, and the latter brings error. Reversed and remanded.
West & Hagan, Merwine & Newhouse, and Frank F. Lamb, for plaintiff in error.
Charles A. Dickson, H. E. P. Stanford, Cochran & Ellison, and Moore & Noble, for defendants in error.
¶1 (). The first contention of the defendant Lamb, plaintiff in error here, is that the lower court erred in overruling his motion to strike the answer and cross-petition of defendant Alexander, for the reason that said answer and cross-petition was not pertinent and germane to the cause of action set out in the original petition, and that the court erred in overruling the demurrer of the defendant Lamb to the answer and cross-petition of the defendant Alexander, which was based upon the same ground.
¶2 The procedure invoked by the defendant Alexander has been sanctioned by the courts of Kansas from which our procedure was taken, and courts of states having similar codes of procedure from the inception of such codes. The law requires that, in so far as possible, all controversies and equities concerning the same subject-matter between the parties properly before the court should be settled in one cause, and to avoid a multiplicity of suits the courts will give the statute a liberal construction in this regard. The court has plenary power to render such judgment in regard to the subject-matter as the pleadings and facts justified, between all parties present, whether between plaintiff and defendants or between codefendants. Realty Co. v. Trowbridge, 50 Okla. 402, 150 P. 898; Kimball v. Connor, 3 Kan. 414; Dawson v. Vickery, 150 Ill. 398, 37 N.E. 910; Ackley v....
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