Minnesota Min. & Mfg. Co. v. Smith

• Decision Date: 27 June 1978
• Docket Number: No. 51921,51921
• Citation: 581 P.2d 31
• Parties: MINNESOTA MINING & MANUFACTURING COMPANY, Petitioner, v. The Honorable Homer SMITH, and the Honorable Charles L. Owens, District Judges of Oklahoma County, State of Oklahoma, Respondents.
• Court: Oklahoma Supreme Court

Page 31

581 P.2d 31

MINNESOTA MINING & MANUFACTURING COMPANY, Petitioner, v. The Honorable Homer SMITH, and the Honorable Charles L.

Owens, District Judges of Oklahoma County, State

of Oklahoma, Respondents.

No. 51921.

Supreme Court of Oklahoma.

June 27, 1978.

Original proceeding on application to assume original jurisdiction and petition for writ of prohibition.

This case involves an original proceeding in which petitioner asks this Court to assume original jurisdiction and issue a writ of prohibition, prohibiting the trial court from further proceeding in an action brought by multiple plaintiffs against petitioner.

Finding that a Summary Judgment, in favor of petitioner, had been sustained, and that no timely Motion for New Trial or appeal had been taken, we hold that the trial court lacked the jurisdiction to further consider the plaintiffs' case against petitioner, Minnesota Mining and Manufacturing Company, though their case against co-defendants below is still within the trial court's jurisdiction. Because of the trial court's attempt to continue to exercise jurisdiction over issues no longer properly before it, we assume original jurisdiction and issue a writ of prohibition. APPLICATION TO ASSUME ORIGINAL JURISDICTION GRANTED; PETITION FOR WRIT OF PROHIBITION GRANTED.

Rodney A. Edwards, Jones, Givens, Brett, Gotcher, Doyle & Bogan, Inc., Tulsa, for petitioner.

Charles E. Payne, Russell, Payne & Farber, Oklahoma City, for respondents.

DAVISON, Justice:

This case concerns an original action in which Minnesota Mining and Manufacturing Company, a corporation, asks this Court to assume original jurisdiction and issue a writ of prohibition, prohibiting the respondent trial judges from further proceeding in the cause before them. The facts giving rise to the filing of the petition for extraordinary relief are as follows. In July of 1976, Mildred Mae Brunn, and numerous other plaintiffs, filed an action against three manufacturers, among them Minnesota Mining and Manufacturing Company, alleging to have been injured by coming into contact with fumes and chemicals manufactured by the three defendants. In June of 1977, Minnesota Mining, pursuant to the provisions of 12 O.S. § 504, served upon the plaintiffs, and each of them, Interrogatories and certain Requests For Admissions the answers to the Requests For Admissions were due on July 31, 1977. No answers to the admissions were ever filed by the plaintiffs, and on August 29, 1977, Minnesota Mining filed a Motion for Summary Judgment, based upon the admissions which came about by virtue of 12 O.S.1971 § 504, and the plaintiffs' failure to answer the admissions within twenty days. Title 12 O.S.1971 § 504 provides in part:

" * * * Each of the matters of which an admission is requested shall be deemed admitted, unless, within a period designated in the request, which period shall be not less than twenty (20) days after service thereof, the party to whom the request is directed serves upon the party requesting the admission either (1) a sworn statement denying specifically the matters of which an admission is requested, or setting forth in detail the reasons why he cannot truthfully admit or deny those matters, or (2) written objections on the grounds that some or all of the requested admissions are privileged or irrelevant or that the request is otherwise improper in whole or in part together with the notice of hearing the objections at the earliest practicable time. * * * " (Emphasis added)

On September 16, 1977, Minnesota Mining's Motion for Summary Judgment came on before the assigned trial Judge, the Honorable Homer Smith, and after hearing arguments from both sides and reviewing the record, sustained the Motion for Summary Judgment. No appeal was ever perfected from the trial court's ruling, nor was a Motion for New Trial filed within ten days of the trial court's ruling.

However, some twenty-one days after the trial court's decision, plaintiffs, on October 7, 1977, filed a Motion to Reconsider. That Motion came on for hearing on November 4, 1977, and was heard by the Honorable Charles L. Owens, as the original Judge assigned in the case, the Honorable Homer Smith, was ill. After hearing arguments of counsel and reviewing the pleadings, Judge Owens sustained the Motion to Reconsider, and vacated the Summary Judgment issued by the trial court.

Minnesota Mining now petitions this Court to assume original jurisdiction and issue a writ of prohibition, prohibiting the trial court from further proceeding in the cause, arguing that since no Motion for New Trial was filed within ten days, and no appeal was perfected within thirty days of the trial court's original judgment, the trial court lacked the jurisdiction to consider the Motion to Reconsider, since it was in fact a nullity. We assume original jurisdiction and issue a writ of prohibition for the following reasons.

We first note here that the Motion to Reconsider filed by the plaintiffs below was in fact, though not in name, a Motion for New Trial. The plaintiffs' attorney characterized the Motion as such in argument before this Court, indicating that it was his intention to file the Motion within the ten day period, though, through inadvertence such was not done. We also note that the Motion to Reconsider must in the case before us be treated as a Motion for New Trial as the Motion could Not have properly been considered a Motion to Modify or Vacate under the provisions of 12 O.S. § 1031(2 through 9), for no facts were plead or proven to bring the Motion within the purview of the specific grounds needed to justify motions under those provisions.

12 O.S.1971 § 1031 establishes the grounds upon which a court may vacate or modify its own judgment. That statute provides:

"The District Court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter:

First. By granting a new trial for the cause, within the time and in the manner prescribed in Section 653 of this title.

Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in Section 176 of this title.

Third. For mistake, neglect or omission of the clerk or irregularity in obtaining a judgment or order.

Fourth. For fraud, practiced by the successful party, in obtaining the judgment or order.

Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.

Sixth. For the death of one of the parties before the judgment in the action.

Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending.

Eighth. For errors in a judgment, shown by an infant in twelve (12) months after arriving at full age, as prescribed in Section 700 of this title.

Ninth. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment. " (Emphasis added)

In the case before us, the Motion to Reconsider was not based upon any of the grounds set forth in Paragraphs Two through Nine of 12 O.S.1971 § 1031, quoted above. Therefore, the Motion could only have been for the granting of a new trial for cause. Such Motions for New Trial are, pursuant to the provisions of Paragraph One of 12 O.S.1971 § 1031 to be considered within the time and within the manner prescribed in 12 O.S.1971 § 653.

O.S.1971 § 653 provides that:

"Unless unavoidably prevented, the application for a new trial, if made, Must be filed within ten (10) days after the verdict, report or decision is rendered regardless of whether or not the term has ended, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made." (Emphasis added)

In the case before us, there is no indication in the record that the plaintiffs' below Motion was based upon newly discovered evidence, or the impossibility of making a case-made. Nor is there any indication in the record that the plaintiffs were unavoidably prevented from filing the Motion within the ten day period, nor did the trial judge making a finding as to plaintiffs being unavoidably prevented from filing their Motion in a timely manner.

In Simon v. Branham, 206 Okl. 628, 245 P.2d 725 (1952), this Court held that a Motion for New Trial filed outside of the statutory ten day period was a nullity, unless it is made to appear that its timely filing was unavoidably prevented. In that case, there was no showing that appellant was unavoidably prevented from filing his Motion. Holding the appellant's belated Motion for New Trial to be a nullity, the court dismissed the appeal before it. We affirmed.

Under the provisions of 12 O.S.1971, § 653, and our interpretation of that statute, the court lacked jurisdiction to consider the Motion filed by respondents in the case before us.

As in Simon v. Branham, supra, the belated filing of a Motion for New Trial, absent a showing of "unavoidable prevention", is a nullity. As there was no showing of "unavoidable prevention", the respondents' Motion was in fact a nullity, and the trial court did lack jurisdiction to grant the Motion.

Lastly, we consider what effect, if any, the provisions of 12 O.S.1971 § 1031.1 have upon the case before us. That statute provides:

"Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify or vacate the judgment. The court may prescribe what notice, if any, shall be given."

In the case at bar, the Motion to Reconsider, which was in fact a Motion for New Trial, was filed within thirty days of the trial court's rendition of the judgment. If the provisions of Section 653 apply, the Motion for New...