Lawrence v. Ayres, 34281

• Decision Date: 15 January 1952
• Docket Number: No. 34281,34281
• Citation: 206 Okla. 218,242 P.2d 142
• Parties: LAWRENCE et al. v. AYRES et al.
• Court: Oklahoma Supreme Court

Page 142

242 P.2d 142

206 Okla. 218

LAWRENCE et al. v. AYRES et al.

No. 34281.

Supreme Court of Oklahoma.

Jan. 15, 1952.

Rehearing Denied March 25, 1952.

Syllabus by the Court.

1. Under Title 12 O.S.A. § 954, it is only necessary to obtain service of case-made upon all parties that appeared at the trial and took part in the proceedings from which the appeal is taken, and whose interest would be adversely affected by a reversal.

2. Where a defendant is served by personal service of summons and fails to protect his rights by appearing, pleading or appealing from the judgment rendered against him, such judgment concludes all his rights in the subject matter of the action and the judgment as to him is res judicata, but only as to the property involved therein.

3. Where the record discloses that a defendant was served in action to quiet title with notice by publication; that a default judgment was rendered against such defendant on January 8, 1948; that thereafter on the 22nd day of November, 1948, the court, on defendant's motion, made an order reopening the judgment as to such defendant, such order was proper if rendered under the conditions prescribed in 12 O.S.A. § 176 and where the record, as here, contains only the order reopening the judgment which indicates compliance with the provisions of Sec. 176, held, that such order was sufficient authority to allow such defendant to proceed with his defense.

4. The amount of ad valorem taxes that should be included in a tax resale notice is all the ad valorem taxes due and delinquent as of the date when the resale notice should be first published, 68 O.S.A. § 351, which would include the accumulated interest, penalties and costs to said date.

5. The inclusion in the notice of resale of lands for non-payment of taxes of one per cent (1%) penalty on $62.97 taxes interest and penalties in the sum of sixty three cents (.63) but which penalty had not accrued and was not due and delinquent at the date of the first publication of such notice, renders the notice fatally defective and the resale and deed based thereon is invalid.

Jack H. Smith, J. I. Goins, Ardmore, for plaintiffs in error.

Welch, Welch & Welch and Little & Hamill, Madill, for defendants in error.

JOHNSON, Justice.

The plaintiffs in error, Harry E. Lawrence and Charles R. Rider, were defendants and Earl E. Ayres and G. F. Kennedy were the plaintiffs. The plaintiffs and two of the defendants, Elvin Childers and Mildred Childers, obtained a judgment in the lower court and hereafter plaintiffs and the two Childers will be referred to as plaintiffs and plaintiffs in error as defendants.

Plaintiffs filed this action to quiet title to certain lands and to determine heirs of certain deceased persons but as between the plaintiffs and defendants, Lawrence and Rider, the principal question to be determined is whether the resale tax deed upon which plaintiffs base their claim of title is valid.

The defendants contend:

(1) That the resale tax deed of plaintiffs is void because the property was sold for an amount of money in excess of the taxes, penalties, interests and costs that were due and delinquent and unpaid.

(2) That the resale tax deed was void because the notice by publication failed to include the year or years for which the taxes had been assessed but remained unpaid as required by 68 O.S.A. § 432b.

On the other hand it is contended by plaintiffs:

(1) That all adverse parties in the trial court were not served with case-made and for that reason the cause should be dismissed.

(2) That the final judgment in case No. 6648 was res judicata as to the defendants Lawrence and Rider; that said judgment resolved and concluded all issues of law and fact in favor of plaintiffs grantor and in favor of plaintiffs as grantees.

As to plaintiffs' first contention it is noted that in the defendants' answer and cross petition they asked that title to the land be quieted in them, for possession, for back rents and partition of the land involved. Upon judgment being rendered against them, the defendants, in appealing, served the case-made upon Earl E. Ayres, G. F. Kennedy, Elvin Childers and Mildred Childers, the parties for whom judgment was rendered and the board of County Commissioners and other county officials but did not serve any of the heirs of deceased persons for whom declaration of heirs was sought and adjudged. Citing 12 O.S.A. § 958 and numerous cases.

We think this contention is without merit. See 12 O.S.A. § 954 and Johnson v. Bearden Plumbing & Heating Co., 180 Okl. 586, 71 P.2d 715.

The record shows that service of case-made was had upon all the parties that appeared at the trial and took part in the proceedings from which the appeal was taken and whose interest would be adversely affected by a reversal.

12 O.S.A. § 954 provides: 'It shall not be necessary for the party appealing, to serve the case made for such appeal on any party to the action who did not appear at the trial and take part in the proceedings from which the appeal is taken, or who shall have filed a disclaimer in the trial court; not shall it be necessary to make any such person a party to the petition in error. * * *'

The plaintiffs next contend that a prior suit was res judicata as to defendants Lawrence and Rider.

The record discloses that plaintiffs, Earl E. Ayres and G. F. Kennedy, on July 30, 1948, filed a petition alleging that they and the two defendants below, Elvin Childers and Mildred Childers, his wife, (all of whom are referred to herein as plaintiffs) were the owners of the SE of SE and SE of NE of SE of Section Four (4) Township Five (5) South, Range Four (4) East, located in Marshall County, Oklahoma, containing 50 acres more or less, which land was allotted to Dan Lewis; that he died a resident of Marshall County, Oklahoma about August 27, 1905, leaving Jerden Hawkins and Olivia Shoemaker, nee John, as his sole heirs; that plaintiff deraigned their title through a tax deed dated June 11, 1942, from the County Treasurer to the Board of County Commissioners to M. R. Hughes and through mesne conveyances to the plaintiffs; that the resale tax deed and all proceedings based thereon were valid; that W. H. Lawrence and others in the chain of title died leaving undeclared heirs (all of which was undisputed and with which we are not here concerned) that their title be quieted.

The county officials filed general denials and the defendants, Harry E. Lawrence and Chas. R. Rider filed answer and cross petition deraigning their title to the lands described in plaintiffs' petition.

Defendants alleged that the resale tax deed was void for the reasons set out in their two propositions or contentions above.

Defendants tendered into court the amount of taxes as required by law and prayed that their title be quieted; that they recover possession of said property; the back rental value thereof, and that the lands be partitioned among the proper parties.

Separate answer was filed by the plaintiffs, Mildred and Elvin Childers, claiming their interest as set out in the plaintiffs' original petition.

On the 2nd day of December, 1948, plaintiffs filed a reply to the answer and cross petition of Charles R. Rider and Harry E. Lawrence denying generally their allegations of any right in the lands involved, and specifically as to Harry E. Lawrence for the reason that on January 8, 1948, the district court of Marshall County, Oklahoma, rendered judgment in the case of Wayland M. Hughes v. Jerden Hawkins, No. 6648 in which the defendant, Harry E Lawrence, was a party defendant, duly served with a summons but defaulted by failing to plead or answer the petition within time and that title as against Harry E. Lawrence was quieted; that the judgment is a bar to any claim which he now asserts in this cause of action.

On December 6, 1948, defendants Lawrence and Rider filed an instrument designated as 'First Amendment to General Appearance and Answer and Cross Petition * * *' wherein they alleged in substance that the property was advertised and sold for an amount in excess of the amount of taxes, interest, penalties and costs that were due, delinquent and unpaid at the date of the first publication of the notice of sale of the property which notice was first published April 9, 1942; that the resale notice published and the listing sheets of said resale in the office of the County Treasurer failed to show the year or years for which said property was sold, either collectively or by years; that by reason thereof it was impossible for the defendants of their predecessors in title to ascertain whether $93.36 represented the true amount of taxes, penalties and interest due; that the original sale, conducted in December, 1939 of the lands involved was void and of no force and effect for the reason that the...