Latimer v. Vanderslice

• Decision Date: 29 September 1936
• Docket Number: Case Number: 26672
• Citation: 62 P.2d 1197,1936 OK 554,178 Okla. 501
• Parties: LATIMER v. VANDERSLICE
• Court: Oklahoma Supreme Court

1936 OK 554

62 P.2d 1197

178 Okla. 501

LATIMER v. VANDERSLICE

Case Number: 26672

Supreme Court of Oklahoma

Decided: September 29, 1936

Syllabus

¶0 1. JUDGMENT - Void Judgment Subject to Vacation Any Time Though Affirmed on Appeal.

A void judgment is without force and effect and may be vacated at any time. The fact that a void judgment has been appealed to the Supreme Court and affirmed adds nothing to the purported judgment.

2. JUDGMENT - Attack on Judgment not Void on Its Face Governed by Statutes.

A judgment that is not void on its face can only be attacked under some statutory provision and within the time and manner therein provided.

3. JUDGMENT - Judgment Conclusive Though Based on Mistake of Law if not Appealed From or if Affirmed on Appeal.

A judgment not appealed from is no less conclusive because it is based upon a mistake of law; and when a judgment is appealed from and affirmed by this court, it becomes final, and although later decreed to be erroneous, its finality cannot be attacked.

Appeal from District Court, Murray County; J.I. Goins, Judge.

Motion by F.C. Latimer to vacate an alleged void judgment, opposed by Jake Vanderslice et al. From an order overruling the motion to vacate, movant appeals. Affirmed.

V.P. Crowe, J.C. Powell, Paul Dudley, and W.E. Latimer, for plaintiff in error.

Ledbetter & Ledbetter, for defendants in error.

PER CURIAM.

¶1 The parties will be referred to as they appeared in the trial court.

¶2 On the 12th day of October, 1915, this court rendered an opinion in Pierce v. Ellis, 51 Okla. 710, 152 P. 340. The action involved lands left by Nannie Rogers, a Chickasaw Indian, whose husband was John Rogers, and it is stated that the only question involved was, Did the surviving husband upon the death of the wife take any estate by curtesy? The opinion continues:

"So far as this court is concerned, we do not consider the question now an open one.

"In the case of Johnson v. Simpson, 40 Okla. 413, 139 P. 129, the syllabus is as follows:

" '(1) Upon the passage and approval of Act May 2, 1890, c. 182, 26 St. at L. 94, which extended over and put in force in the Indian Territory the common law of England as adopted by the state of Arkansas, with the proviso excepting Indians and their estates, and Act June 7, 1897, c. 3, 30 St. at L. 83, which provided that such laws should apply to all persons of the Indian Territory, irrespective of race, and the Curtis Act June 28, 1898, c. 517, 30 St. at L. 495, which provided that the laws of Indian tribes should no longer be enforced, title by curtesy consummate, as it existed in the state of Arkansas, attached, in favor of the husband, to all lands of which the wife became seized during coverture.

" '(2) Under the curtesy consummate, as it existed in the state of Arkansas, whatever interest the husband acquired in the lands of his wife, by marriage, could be swept away by her subsequent conveyance or devise of them.'

"The United States District Court for the Eastern District of Oklahoma has announced the same principle in Armstrong v. Wood et al. (C. C.) 195 Fed. 137.

"The Johnson Case, supra, involved allotted lands in Seminole Nation; the Armstrong Case, supra, lands in the Creek Nation. The land in controversy here is a Chickasaw allotment; but, so far as we can see, there is nothing in the laws and treaties peculiarly applicable to the Choctaw and Chickasaw Tribes that would require a distinction, or except the lands of those Nations from the operation of the rule announced in the above cases. In fact, it would appear that more reasons could be given to take the Creek lands out of the rule than to take the Chickasaw and Choctaw lands out of it."

¶3 Subsequent to this opinion two cases were decided by the Supreme Court of the United States on appeal from this court. The first one was Marlin v. Lewallen, 276 U.S. 58 (Condren v. Marlin, 113 Okla. 259, 241 P. 826). and the second, Longest v. Langford, 114 Okla. 50, 252 P. 509, Id., 276 U.S. 69. Marlin v. Lewallen, supra, involved certiorari to an opinion of the Supreme Court of Oklahoma sustaining a claim to an estate by the curtesy in lands allotted and patented to a Creek woman. Justice Van Devanter states the case as follows:

"The lands were allotted and patented under two agreements between the United States and the Creek tribe which will be described later on. The allottee was a married woman of Creek blood and was enrolled as a member of the tribe. Her husband was a white man without tribal enrollment or membership. She died intestate November 29, 1904, while seized of the lands, and was survived by her husband, by issue of her marriage with him and by issue of a former marriage, all of the issue being Creeks and capable of inheriting the lands.

"Two questions are pressed on our attention: Did the laws then applicable to the Creek lands provide for an estate by the curtesy? If so, did they extend it to a husband who was not a Creek where there were Creek descendants capable of taking the full title?"

¶4 After a review of the history of the relations of the United States and the Indian tribe the opinion states:

"The Arkansas Law of curtesy was among the laws so extended. But that did not make it presently applicable to the Creek lands, they being then in tribal ownership. Such applicability would come only if and when individual ownership was substituted for tribal ownership. The agreements provided for such a change, and had they stopped there that law would have become applicable. But instead of stopping there they proceeded to deal, among other things, with the taxation, alienation and devolution of the lands. Whether these further provisions in effect excluded curtesy under that law is one of the questions in this case. Of course, it is a question of construction. (Emphasis ours.)

"In taking up this question it must be remembered that the agreements were between the United States and a dependent Indian tribe then under its guardianship, and therefore that they must be construed, 'not according to the technical meaning of their words to learned lawyers but according to the sense in which they would naturally be understood by the Indians.' "

¶5 Longest v. Langford, supra, follows the opinion in Marlin v. Lewallen, supra, and applies the same rule to lands allotted to Choctaw women. The headnote prepared by the reporter of the case states that it applies to Choctaw and Chickasaw Indians. Pierce v. Ellis, supra, is not cited in the opinion. Both opinions were decided February 20, 1928.

¶6 On the 31st day of December, 1934, the plaintiff appeared in the district court of Murray county, and in the former case of Pierce v. Ellis, which was the judgment appealed from to this court, and filed a motion to vacate the judgment rendered on the 29th day of April, 1913, on the ground that said judgment was void, and cited as his authority therefor the two opinions of the Supreme Court of the United States mentioned above.

¶7 For the purpose of this opinion we shall treat the appeal as one from the refusal of the trial court to vacate the original judgment in Pierce v. Ellis, supra, and hold that the appeal is regularly taken from the order refusing to vacate the judgment therein rendered. We shall also hold that, if necessary, the motion to recall mandate and vacate the judgment and opinion of this court in Pierce v. Ellis, supra, is properly filed and considered.

¶8 A large number of authorities are cited by plaintiff to sustain his position that the judgment is void. Many of these cases, such as Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Ex parte Parnell, 19 Okla. Cr. 273, 200 P. 456, and Condit v. Condit, 66 Okla. 215, 168 P. 456, deal with the lack of jurisdiction either of person or of the subject-matter. Pettis v. Johnston, supra, declared a judgment void founded upon service not in compliance with the statutory requirements which was reflected by the judgment roll. Condit v. Condit, supra, declared a judgment void where proper service of a minor was not shown, and Ex parte Parnell, supra, declared a judgment of conviction of a minor properly under the supervision of juvenile powers of the county court void. The following cases involve these principles: Roth v. Union National Bank, 58 Okla. 604, 160 P. 505; Jefferson v. Gallagher, 56 Okla. 405, 150 P. 1071; Standard Savings & Loan Ass'n v. Anthony Wholesale Gro. Co., 62 Okla. 242, 162 P. 451; Seal v. Banes, 168 Okla. 550, 35 P.2d 704; Cummings v. Inman, 119 Okla. 9, 247 P. 379; Southwestern Surety Ins. Co. v. Farriss, 118 Okla. 188, 247 P. 392; Bell v. Fitzpatrick, 53 Okla. 574, 157 P. 334; Brewer v. Dodson, 60 Okla. 81, 159 P. 329; Title Guaranty & Surety Co. v. Foster, 84 Okla. 291, 203 P. 231; Appeal of Sim's Estate, 162 Okla. 35, 18 P.2d 1077; Sims v. Billings, 162 Okla. 51, 18 P.2d 1084; Sharp v. Sharp, 65 Okla. 76, 166 P. 175; Eysenbach v. Naharkey, 114 Okla. 217, 246 P. 603; Coleman v. Battiest, 65 Okla. 71, 162 P. 786; Arnold v. Joines, 50 Okla. 4, 150 P. 130; Rock Island Imp. Co. v. Pearsey, 133 Okla. 1, 270 P. 846; Burris v. Straughn, 107 Okla. 299, 232 P. 394; Zahn v. Obert, 60 Okla. 118, 159 P. 298; First State Bank v. Lattimer, 48 Okla. 104, 149 P. 1099; Parmenter v. Ray, 58 Okla. 27, 158 P. 1183; Jackson v. Carroll, 86 Okla. 230, 207 P. 735; Condren v. Marlin, 113 Okla. 259, 241 P. 826; Oder v. Oder, 149 Okla. 63, 299 P. 202; Fowler v. Humphrey Inv. Co., 142 Okla. 221, 286 P. 867; Brown v. State National Bank, 133 Okla. 173, 271 P. 833. These cases are all cited by the plaintiff in the brief.

¶9 Plaintiff relies upon Jefferson v. Gallagher, supra, and the language used therein. That was a case in which judgment was rendered without the jurisdiction of the person. He likewise relies upon Southwestern Surety Ins. Co. v. Farriss, supra, and therein the parties stipulated that the bondsmen might be subrogated to the interest of the ward on a guardian's bond. A judgment based thereon was declared void. Each case could be likewise...