Leforce v. Haymes

• Decision Date: 09 November 1909
• Docket Number: Case Number: 237
• Citation: 105 P. 644,1909 OK 280,25 Okla. 190
• Parties: LEFORCE et al. v. HAYMES.
• Court: Oklahoma Supreme Court

1909 OK 280

105 P. 644

25 Okla. 190

LEFORCE et al. v. HAYMES.

Case Number: 237

Supreme Court of Oklahoma

Decided: November 9, 1909

Syllabus

¶0 1. JUDGMENT--Vacation -- Application -- Statement of Defense. When a judgment or order is sought to be vacated or modified under either of subdivisions 4, 5, 6, 7, 8, 9, sec. 4760 (chapter 66. art. 22, sec. 562), Wilson's Rev. & Ann. St. 1903, by petition, etc., the defense on the part of the defendant so applying must be affirmatively alleged therein.

(a) Where the Judgment or order is sought to be vacated or modified under the provisions of subdivision 3 of said section, an affirmative averment as to the defense is not required.

2. APPEAL AND ERROR--Petition--Default Judgment--Failure to State Cause of Action. After judgment has been rendered on default in effect nil dicit, and no objection made to the petition that it does not state facts sufficient to constitute a cause of action, when it appears that it states only conclusions of law, the same will on review in this court be held insufficient to support a judgment by default.

(a) Upon a petition in error to reverse a judgment by default, such defects in the petition as could have been taken advantage of before judgment by general demurrer may be brought under review, and, if the allegations of the petition are insufficient to sustain the judgment, the same will be reversed.

3. COURTS--Indian Territory--Special Verdict--Amendment by Court--Time to Amend. Under the practice prevailing in the Indian Territory prior to the admission of the state, when judgment was rendered on the verdict and a motion for a new trial filed within due time unless it was disposed of before the expiration of the term, such judgment became final.

(a) But where the jury returned a special verdict, and judgment by the court was not ordered thereon, but a motion to amend the same having been filed in due time, and by agreement it was continued until the next term of court, the issues were not finally determined therein until said motion was finally disposed of and judgment on said special verdict ordered by the court.

(b) If there was error committed by the court in ordering judgment on such special verdict, the proper remedy for correction was by an appeal therefrom, and could not be reached by direct attack on the ground that it was void.

Error from District Court, Craig County; J. H. King. Special Judge.

Action by J. A. Leforce and others against R. L. Haymes. From an order setting aside a judgment in favor of plaintiffs on special verdict and rendering judgment for defendant, plaintiffs bring error. Reversed, with instructions.

On the 20th day of February, 1904, plaintiffs in error, J. A. Leforce pro se, Flossie, Lottie, and Rachel, pro ami, J. A. Leforce, as plaintiffs filed in the United States Commissioner's Court for the Northern District at Vinita an affidavit to enforce a landlord's lien in the sum of $ 134.20, with the rental contracts upon which said lien was based thereto attached. On the 9th day of March, 1904, the defendant in error, as defendant, filed a controverting affidavit and answer thereto denying that he was indebted to the plaintiff in the sum of $ 134.20 or any other sum, but admitting that he rented the premises as alleged by plaintiff, and that the rent therefor was due January 1, 1904, and that he produced on said farm a crop of corn in the year 1903, consisting of about 150 bushels, but denied that plaintiff had any lien thereon for rents, etc., and further alleged payment and pleaded a set-off in the sum of $ 48, at the same time admitting that he owed the plaintiff the sum of $ 23.10 for a cook stove, $ 16 for wheat, $ 3 for shucking corn, and $ 3 for the use of a cultivator, making a total of $ 45.10, and further claimed damages in the sum of $ 50 by reason of being deprived of the use of said property, and the further sum of $ 85 for corn destroyed and $ 30 for hay likewise destroyed under said attachment. Then follows a prayer for judgment in the sum of $ 144.35. Replying to the set-off, a counterclaim was filed in due time. Judgment was rendered in said Commissioner's Court in favor of plaintiff in the sum of $ 2.90.

Plaintiff in due time prosecuted his appeal to the United States Court at Vinita. On the 26th day of October, 1906, the cause was tried in said court to a jury; the following special verdict being returned:

"We, the jury, duly impaneled and sworn in the above-entitled cause, do find from the law and the evidence: (1) That the defendant at the time of the issuance of the writ of attachment in this action was, and now is, indebted to the plaintiffs upon the notes and rental contract in the sum of $ 28.60, with interest at the rate of 8 per cent. from January 1, 1904, to date. (2) That the value of the property taken under the writ of attachment at the time it was taken was $ 82.50. (3) That the defendant was actually damaged by the wrongful suing of the attachment in this case in the sum of $ (4) That the plaintiff is now, including the amount found in finding 2, but not any amount stated in findings 1 or 3, indebted to the defendant in the sum of $ 55.40, with interest at the rate of 6 per cent. from February 22, 1906."

On October 27, 1906, plaintiffs filed in court their motion to correct the said verdict and for judgment for plaintiffs, the body of which is in haec verba:

"(1) The plaintiff moves the court to amend the verdict rendered in the case by striking therefrom the finding under section 4 of said verdict. (2) The plaintiff moves the court to render judgment upon finding 1 of said verdict in favor of the plaintiff and against the defendant for the sum of $ 28.60 and interest, the amount therein found due plaintiff. And as reasons therefor plaintiff states that the finding 4 is not supported by any evidence, and is contrary to law, and is in conflict with the verdict upon the debt for which the attachment lien was predicated, and is contrary to the other finding in the verdict as set forth ill section 3."

No action was taken by the court either sustaining or discharging the attachment. Said motion being not acted upon, on January 19, 1907, and no judgment having been entered on said verdict, by agreement, the same was continued for the term. At the time the state government was organized it was still undetermined. Thereafter, on the 3d day of January, 1908, the court entered an order, in part, as follows:

"And it appearing to the court from the record and files in this cause that the said verdict is erroneous and should be amended as prayed for by plaintiff, and the court being advised in the premises, the motion of plaintiff to amend said verdict is hereby sustained, and the verdict is hereby amended by striking therefrom the fourth paragraph thereof. And it further appearing to the court that the said verdict as amended finds the issues in favor of plaintiff in the sum of $ 28.60 and it further appearing to the court that the property attached was destroyed by fire before the trial of this cause so that there is no property now in the hands of the court out of which to make said debt, and the court being advised in the premises, it is therefore considered, ordered, and adjudged by this court that the attachment therein be sustained, that the plaintiff recover of and from the defendant herein the sum of $ 28.60, together with his costs herein expended taxed at $ , and that execution thereof be awarded."

And thereafter, at a different term of court, to wit, on the 8th day of April, 1908, defendant filed a petition to vacate said judgment "upon the following grounds, and for the following reasons * * *:

"(1) For irregularity on the part of the plaintiffs and their attorney, Geo. E. McCulloch, in obtaining said judgment. (2) For fraud practiced by the plaintiffs and their said attorney in obtaining said judgment. (3) For unavoidable casualty and misfortune, preventing the defendant and his attorney of record in this cause from being present and defending and resisting the granting of this judgment on the date mentioned in same. (4) For taking said judgment upon the warrant of the attorney for the plaintiffs for more than was due to the plaintiffs, when the defendant nor his attorney of record herein was not summoned or otherwise legally notified of the time and place of taking such judgment. (5) This court was without jurisdiction or power to render said judgment herein for the plaintiffs and to hear the facts and the law to correct any errors in said verdict."

The following acceptance of service, etc., was made by the plaintiff's attorney:

"Issuance and service of summons upon the plaintiffs and time is hereby expressly waived, and it is agreed that this petition may be heard before the court at Vinita on Wednesday, April 8,1908."

On the 9th day of April, 1908, the district court for Craig county heard the said petition and the argument of counsel, and rendered judgment, nil dicit, in part as follows, to wit:

"Now therefore it is hereby ordered, considered, and adjudged by the court: That the said petition to vacate and annul the judgment complained of and for a judgment on the verdict in favor of the defendant as prayed for be, and the same is hereby, fully sustained, and said judgment is hereby fully annulled, canceled, and forever vacated, and the defendant is given judgment against the plaintiffs in the sum of $ 58.40, together with 6 per cent. interest thereon from and after February 22, 1906, until paid; said judgment by order nunc pro tunc to be of October 26, 1906. That the plaintiffs are allowed their exceptions and given 30 days to offer amendments and suggestion. The plaintiffs are allowed 5 days to submit same to court for allowment, and execution is stayed 50 days until plaintiff can prepare case-made as herein mentioned and set forth."

An appeal was prosecuted from such judgment.

Geo. E. McCulloch, for plaintiffs in error.--Citing: Hockaday v. Jones, 8 Okla. 156; ...