Light of Truth Spiritualist Church of Tulsa v. Davis

• Decision Date: 17 June 1947
• Docket Number: 32705.
• Parties: LIGHT OF TRUTH SPIRITUALIST CHURCH OF TULSA v. DAVIS et al.
• Court: Oklahoma Supreme Court

181 P.2d 969

198 Okla. 694, 1947 OK 191

LIGHT OF TRUTH SPIRITUALIST CHURCH OF TULSA v. DAVIS et al.

No. 32705.

Supreme Court of Oklahoma

June 17, 1947

Appeal from District Court, Tulsa County; Harry L. S. Halley, Judge.

Action in ejectment joined with an action to quiet title by Hubert Davis and another against Light of Truth Spiritualist Church of Tulsa, Okl. From a judgment for plaintiff, defendant appeals.

Affirmed.

Syllabus by the Court.

1. Where petition alleged defendant, a church organization, was a voluntary, unincorporated association, and summons was directed to an individual, and return showed this individual was served as 'church trustee,' and individual's capacity as trustee was undisputed, such service complied with provisions of 12 O.S.1941 § 182, and gave the trial court jurisdiction over such party.

2. Land described in a tax deed and shown therein to have been sold as one parcel for a single consideration is presumed to be one separate tract and properly subject to listing and valuation as such on the tax rolls, and to tax sale for a single consideration, unless the contrary affirmatively appears on the face of the deed.

3. Misjoinder of parties cannot be taken advantage of by demurrer, but must be reached by motion to strike the unnecessary parties. State Exchange Bank of Elk City v National Bank of Commerce, 70 Okl. 234, 174 P. 796; Tucker v. Hudson, 38 Okl. 790, 134 P. 21.

H. F Fulling, of Tulsa, for plaintiff in error.

John W McCune and Primus C. Wade, both of Tulsa, for defendants in error.

CORN Justice.

This is an appeal by defendant from a judgment rendered by the district court of Tulsa County in an action in ejectment and for possession of real property, and to quiet plaintiff's title upon a county commissioners' deed, based upon a resale tax deed.

Presented herein is the second appeal of this case. We reversed and remanded the cause with directions on the former appeal, for the reason that the record disclosed that judgment was rendered for plaintiffs without the introduction of any evidence. See Light of Truth Spiritualist Church of Tulsa v. Davis, et al., 192 Okl. 284, 135 P.2d 35.

Plaintiffs filed their action June 7, 1939, claiming title and right to immediate possession of:

'West one-half (1/2) Lot ten (10) and Lot eleven (11) Block Five (5) Washington Addition to the City of Tulsa, State of Oklahoma.' Plaintiffs' alleged legal and equitable ownership by virtue of a County deed, based upon a resale deed from the county treasurer, to Davis; that Oklahoma State Colored Spiritualist Association was an Oklahoma Corporation, and defendant Light of Truth Spiritualist Church was a voluntary, unincorporated association.

Further, that defendants claimed some interest in the property, and that same had been cancelled by plaintiffs' deed; that defendants had obtained a judgment against tenants in possession of the property (in an action wherein plaintiffs were not parties) and defendant Crabaugh, a constable, was threatening to dispossess said tenants, and asked a temporary restraining order which was granted. Crabaugh claimed no interest in the property, and it is unnecessary to further consider his part in these proceedings.

Praecipe for summons was issued as follows:

'Oklahoma State Colored Spiritualist Association, a corporation, Light of Truth Spiritualist Church of Tulsa, Oklahoma, a voluntary Association, and E. O. Crabaugh, Robinson Building, Tulsa, Oklahoma.

'For Light of Truth, see Mrs. A. Frazier, 1417 N. Madison Pl., Tulsa, Oklahoma.'

The sheriff's return service of summons showed service upon defendants as follows:

'Received this Writ June 7th, 1939, at ___ o'clock _ M, and served the same upon the following persons, defendants, within named, at the time following, to-wit:

'A. O. Crabaugh on June 7th, 1939

'Light of Truth Spiritualist Church of Tulsa, Oklahoma by serving Mrs. A. Frazier, Church Trustee on Jine 9th 1939.'

A further return of service showed the Oklahoma State Colored Spiritualist Association was not found, and this defendant is not further concerned in this appeal.

Defendant appeared specially and moved to quash service of summons, because not issued and served as required by law, which motion was overruled. Defendant then moved to require plaintiffs to make the petition more definite and certain, which motion was overruled and defendant then filed a demurrer to plaintiffs' petition, which was overruled.

Defendant filed answer and cross-petition. Upon trial of the cause plaintiffs had judgment, and that judgment was reversed and remanded on appeal to this court as noted heretofore.

Upon remand to the trial court the matter was heard upon the same pleadings. Defendant's motion to quash was overruled and defendant then appeared specially, objecting to the introduction of any testimony. This motion was overruled and plaintiffs introduced their evidence (by introduction of the resale deed and the commissioners' deed) to which defendant demurred as insufficient to constitute a cause of action. The trial court overruled this demurrer and rendered judgment for plaintiffs.

Defendant has again appealed, presenting herein questions raised on the first appeal, but not considered in our former opinion. Defendant makes three contentions for reversal of this judgment: (1) Error in overruling the motion to quash the summons and service thereon; (2) error in overruling defendant's motion to make more definite and certain and in overruling the demurrer to the petition; (3) overruling of the motion for new trial.

Defendant first contends that it was error to overrule the motion to quash service of the summons, and defendant's objections to jurisdiction, the service being insufficient to confer jurisdiction upon the trial court.

Our statute, 12 O.S.1941 § 182, provides for service of summons in such instances as follows:

'* * * Provided further, that service may be had upon any common law trust or any other unincorporated association or trust of individuals designating themselves as a trust or represented by an individual as trustee, by service upon any one of such individuals as may be designated as trustee for said trust, the same as in any other civil action.'

The petition alleged defendant to be a voluntary, unincorporated association. The summons likewise designated defendant in this manner. On appeal, defendant admits its existence as such an association. Thus the question simply is whether the service had upon the defendant was sufficient to confer jurisdiction upon the trial court.

Supporting this argument defendant cites and relies upon ...