Lookabaugh v. Epperson
| Decision Date | 21 March 1911 |
| Citation | 114 P. 738,28 Okla. 472,1911 OK 99 |
| Parties | LOOKABAUGH v. EPPERSON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The Supreme Court will not review alleged errors of the trial court, unless the error complained of is in some manner assigned for review by the petition in error.
Where a motion is made in which questions are raised that go to the jurisdiction of the court over the parties, and in which questions are also raised that cannot be raised by special appearance but can be heard only upon a general appearance the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment.
Error from District Court, Oklahoma County; J. G. Lowe, Judge.
Action by Ella Epperson against J. G. Lookabaugh. Judgment for plaintiff, and defendant brings error. Affirmed.
R. M Campbell and I. H. Lookabaugh, for plaintiff in error.
Claude Weaver and Leigh Clark, for defendant in error.
This appeal is brought to review an order of the court below overruling a motion to set aside a default judgment rendered upon service by publication and to permit plaintiff in error to file an answer and defend against the action. Defendant in error brought the action in the court below against W. M Sawyer, R. H. Ewert, and plaintiff in error to quiet the title to two certain tracts of land described in plaintiff's petition, and to cancel two certain deeds executed by her to plaintiff in error conveying said land, or for the alternative relief, in the event the court found she was not entitled to a decree quieting title, of a judgment against plaintiff in error and his codefendants for the sum of $3,800. When her petition was filed, summons was issued and served upon Sawyer and Ewert, and an alias summons was also issued to plaintiff in error, which was duly returned by the sheriff, showing that plaintiff in error could not be found. Thereupon defendant in error filed an affidavit for service by publication, and publication notice was issued and published. After said notice had been published, an amended affidavit for service by publication was filed by defendant in error. Prior to which time, however, plaintiff in error had filed in the cause her special appearance and a motion to quash the attempted service by publication. Thereafter the court made an order striking this motion from the files. The record fails to disclose upon what grounds the order was made. On the 3d day of August following the striking of the motion from the files, which occurred on the 18th day of July, judgment by default was entered against plaintiff in error, granting defendant in error the relief prayed for in her petition to the extent of quieting the title to the land in controversy and ordering a reconveyance of the same to her. Subsequently plaintiff in error filed her motion to vacate and set aside the judgment and for permission to permit her to file her answer and defend against the action, which was denied.
A large portion of plaintiff in error's brief is devoted to urging that the action of the court in striking her motion to quash the service by publication was error; but this act of the court is not assigned as error in her petition in error, and this court will not review an alleged error of the trial court, unless the error complained of is assigned for review by the petition in error. Menten v. Shuttee et al., 11 Okl. 381, 67 P. 478; Southwestern Cotton Seed Oil Co. v. Bank of Stroud et al., 12 Okl. 168, 70 P. 205.
A party against whom a judgment or order has been rendered without service other than by publication in a newspaper may, within any time within three years after date of judgment or order have the same opened and be let in to defend by giving notice to the adverse party of his intended application, and by filing his application therefor with a full answer to the petition and paying all costs required by the court to be paid by him, and by making it appear that during the pendency of the action he had no actual notice of the action in time to appear in court and make his defense. ...
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