Lee v. Epperson

• Decision Date: 10 April 1934
• Docket Number: Case Number: 25088
• Parties: LEE et al. v. EPPERSON, Adm'x, et al.
• Court: Oklahoma Supreme Court

1934 OK 229

32 P.2d 309

168 Okla. 220

LEE et al. v. EPPERSON, Adm'x, et al.

Case Number: 25088

Supreme Court of Oklahoma

Decided: April 10, 1934

Syllabus

¶0 1. Limitation of Actions--Running of Statute Postponed During Time Party Restrained From Pursuing Remedy by Legal Proceedings.

Where the character of legal proceedings is such that the law restrains one of the parties from exercising a legal remedy against another, the running of the statute of limitations applicable to the remedy is postponed, or if it has commenced to run, is suspended, during the time the restraint incident to the proceedings continues.

2. Judgment--Findings of Fact and Conclusions of Law not Judgment.

The findings of fact and conclusions of law by a trial court do not constitute a judgment which is subsequently to be rendered. Such findings of fact and conclusions of law amount only to an order for judgment and are subject to modification or change until embodied in a judgment rendered by the court.

Appeal from District Court, McCurtain County; Geo. T. Arnett, Judge.

Action by Robert E. Lee et al. against Mamie Lee Epperson, administratrix, et al. From the judgment, plaintiffs appeal. Reversed and remanded.

Ledbetter & Ledbetter and Sigler & Jackson, for plaintiffs in error.

W. F. Semple, A. H. Ferguson, and Tom Finney, for defendants in error.

BAYLESS, J.

¶1 Robert E. Lee and another appeal from a judgment of the district court of McCurtain county, Okla., rendered in favor of the administratrix and the heirs of Nellie Stechi, deceased. The appealing parties will be referred to herein as Lee, and the defendants in error, as defendants.

¶2 The facts are, in substance, as follows:

¶3 January 16, 1928, Lee obtained a money judgment and a fractional interest in certain real estate against Nellie Stechi.

¶4 Immediately thereafter the United States Government, through the United States District Attorney, on behalf of Nellie Stechi commenced a proceeding in the United States District Court for the Eastern District of Oklahoma to enjoin further proceedings upon this judgment or an attempt to realize thereon. The District Court of the United States, aforesaid, entered an order on the 28th day of February, 1928, restraining further proceedings in the state court looking to the satisfaction of said judgment. This restraining order remained in full force and effect for about three years, during which time proceedings were had in the state courts as hereinafter stated.

¶5 April 26, 1928, some two months after the restraining order in the federal court, Nellie Stechi appealed to this court from the judgment obtained by Lee. While the appeal was pending in this court, and on November 16, 1929, Nellie Stechi died. On February 11, 1930, an order of reviver against the heirs of Nellie Stechi was entered by the Supreme Court of the state of Oklahoma. On July 10, 1930, this court rendered a decision reported in 145 Okla. 41, 291 P. 50, in which the judgment obtained by Lee was affirmed.

¶6 During the pendency of the appeal in this court administration upon the estate of Nellie Stechi, deceased, was instituted in the county court of McCurtain county, Okla., an administrator was appointed and notice to creditors to present claims against the estate was published for the first time in March, 1930.

¶7 After the decision of this court on the appeal and the return of the cause to the trial court nothing further was done, presumably awaiting the disposition of the proceedings in the federal court. On February 24, 1931, the judge of the United States District Court for the Eastern District of Oklahoma filed in the case before him his findings of facts and conclusions of law from which it became apparent that he intended to deny the rights of the United States Government and Nellie Stechi to obtain the relief sought in the action filed in that court. On May 5, 1931, said judge entered an order in conformity with the findings of facts and conclusions of law. It will be noted that the date of the findings of facts and conclusions of law and date of the judgment become material hereinafter in relation to the filing of the claim of Robert E. Lee with the administratrix.

¶8 Immediately after the termination of the proceedings in the federal court Lee had issued an execution and sold certain real estate of Nellie Stechi in an effort to satisfy this judgment. The heirs of Nellie Stecht attempted to quash the execution and resisted these efforts in every way possible. Lee then moved to revive the judgment in the court, and the administratrix voluntarily appeared and attempted to confer jurisdiction of the court upon her in connection with said action. The district court thereupon revived the judgment as against the decedent, confirmed the sale and generally granted Lee the relief sought. This order was entered August 13, 1931. In December, 1931, an appeal was taken by the heirs and the administratrix from these orders, and on October 1, 1932, the court entered an order and decision dismissing the appeal for the reason it was not taken within time, which decision is found in 159 Okla. 257, 15 P.2d 3(Lewis v. Lee).

¶9 On August 29, 1931, after the sale proceedings above referred to, Lee presented a claim based upon the judgment affirmed by this court and the deficiency remaining thereon, and the administratrix disallowed this claim. Lee thereupon instituted the action from which this appeal arises in the district court of McCurtain county, Okla.

¶10 The trial court made an analysis of the contentions of the parties upon the issues in the case and resolved them into five propositions. The first four of which he decided in favor of Lee, and the 5th:

"The judgment was not filed with the administrator for allowance within the four months' period after notice was given to creditors as required by statute"

¶11 --contrary to him.

¶12 Lee contends here that this question is the sole one to be noticed and decided by this court. The defendants say that, although they have not filed a cross-appeal from the action of the court on the four contentions decided adversely to them, nevertheless, they may and do present them again in support of the judgment in their favor.

¶13 We believe the trial court's analysis of the issues is correct and comprehensive. We have examined his findings of facts and conclusions of law as applied to the first four grounds and upon the record before us we believe they are correct, and it is not necessary for us to notice the second, third, and fourth grounds further in the determination of this case. We are of the opinion that these grounds furnish no support for the defendants' judgment.

¶14 As to the first ground, which touches upon the question of reviver of the action after the death of Nellie Stechi, we have this to say. The plaintiff, Nellie Stechi, became a defendant in said action in so far as the cross-petition of Lee was concerned and the statute of this state governing the reviver of actions upon the death of defendants applies. The claim of Lee against Nellie Stechi, as a defendant, involved both money and an interest in real estate. Therefore, in so far as the claim concerned the real estate, it was necessary that said action be revived in the name of her heirs, and this was done in the appeal from the original judgment (145 Okla. 41, 291 P. 50) upon application of the heirs themselves, and has become final. In sofar as a reviver was necessary against the personal estate of Nellie Stechi, it could be done only after her death and in the name of her personal representative, when such personal representative was named, all as provided by law. A personal representative of Nellie Stechi was appointed December 3, 1930, within one year after her death. The action was revived in the name of the personal representative of Nellie Stechi, deceased, on the 13th day of August, 1931, by consent of the personal representative. This was more than one year after the date of the death of Nellie Stechi. The question of whether or not it was made with or' without consent is not the controlling factor. What we say hereafter concerning the restraint which Lee was under at that time, as applied to the presentation of the claim of creditors to the personal representative of Nellie Stechi, deceased, applies to the reviver of the action.

¶15 The trial court assumed in his findings of facts and conclusions of law and judgment that if restraint was imposed upon Lee by the restraining orders of the federal court, by reason thereof, the defendants should not be permitted to take advantage of the passage of time to prevent Lee presenting his claim when the restraint was removed. The trial court was further of the opinion that when the restraint was removed the statutory period of time wherein Lee might have acted as the law required him to act was a reasonable length of time from the removal of the restraint within which to perform such acts. We agree with these conclusions. The defendants should not be permitted to take advantage of the restraint placed on Lee by ...