Mires v. Hogan
| Decision Date | 21 September 1920 |
| Docket Number | Case Number: 9596 |
| Citation | 79 Okla. 233,192 P. 811,1920 OK 308 |
| Parties | MIRES v. HOGAN. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Record--Sufficiency--Transcript of Record.
A certified transcript of the record in the court below with petition in error constitutes a sufficient record upon which this court may consider errors disclosed by the judgment roll.
2. Same--Necessity for Case-Made or Bill of Exceptions--Proceedings to Vacate Judgment.
A motion to vacate and set aside a judgment partakes somewhat of the nature of an independent action to evade, avoid, or nullify the judgment, and the proceedings to vacate are no part of the judgment roll in the original case in which the attacked judgment was rendered, and for this reason the motion to vacate and set aside a judgment, and the order of the court thereon, are not parts of the record unless they are brought into the same by a bill of exceptions or case-made.
3. Same--Review of Judgment--Judgment on Pleadings.
A final judgment is a part of the judgment roll, and its correctness can be tested in this court by an examination of the judgment, its premises, recitals therein, the pleadings, and all parts of the judgment roll, and in considering such judgment it is not material to the jurisdiction of this court whether or not a judgment on the pleadings was rendered on the motion of a party or by the court on its own motion.
4. Pleading-- Judgment on Pleadings--Necessity for Motion.
The district court has inherent power to render a judgment on the pleadings without a motion by either party.
5. Same--Basis of Judgment.
A judgment on the pleadings is rendered, not because of the lack of evidence or proof, but because of a lack of issue of fact. If the pleadings present no material issue of fact, then it becomes a question of law as to which party is entitled to judgment.
6. Same--Effect of Motion.
A motion for judgment is not directed at the form of the pleadings, but goes to the substance; it does not assail indefiniteness, uncertainty, or clerical errors, and such a motion can raise only such questions as are raised on a general demurrer, and issues of fact cannot be determined on such a motion.
7. Same--Nature of Motion.
A motion for judgment on the pleadings is of the nature of a demurrer, is governed by the rules applicable to a general demurrer, and admits every material fact properly stated in the pleadings.
8. Same-- Right to Judgment.
A motion for judgment on the pleadings searches the whole record, and a judgment may be rendered for the party, either the movant or his adversary, entitled thereto as the record then stands; but the motion can never prevail unless upon the facts established by the pleadings, the court, as a matter of law, can pronounce a judgment on the merits for one or the other of the parties.
9. Same--Consideration of Motion.
A motion for judgment on the pleadings presents two questions to the court in the following order: (1) Is there any issue of material fact? And if no issue of material fact is presented by the pleadings, (2) which party is entitled to the judgment? In determining the second question, it is immaterial which party presents the motion, but on the first question the moving party is at this disadvantage: He is deemed not only to admit, for the purposes of the motion, the truth of every fact well pleaded, but to admit the untruth of his own allegations which have been denied. On the first question, the adverse party has this advantage: His pleadings will be construed so as to bring to his aid every reasonable intendment in favor of the sufficiency thereof. Thus, the answer to the first question, and therefore whether or not the court reaches the second question, may depend somewhat upon which party makes the motion.
10. Appeal and Error--Necessity for Motion for New Trial-- Judgment on Pleadings.
A final judgment rendered on the pleadings has the same effect as a final judgment rendered on a demurrer, and a motion for a new trial is neither essential nor proper, as error assigned upon the overruling of a motion for a new trial would present nothing to this court for review.
11. Pleading--Motions for Judgment on Pleadings-- Amendments.
Motions for judgment on the pleadings are not looked upon with favor, and amendments may be made to defeat such motions.
12. Appeal and Error--Jurisdiction--Parties.
Under section 5238, Rev. Laws 1910, as amended by the act of the legislature approved March 23, 1917, notice of intention to appeal as therein provided, coupled with the filing in this court of a petition in error and proper record, confers jurisdiction upon this court over all the parties to the judgment and proceedings complained of, except parties to the action below who did not appear at the trial and take part in the proceedings from which the appeal is taken, and parties who filed a disclaimer in the trial court.
13. Same--Bringing in New Parties on Appeal.
Parties to the action who did not appear at the trial and take part in the proceedings from which the appeal is taken, and parties who filed a disclaimer in the trial court, may be made parties plaintiffs or defendants to proceedings in error in this court, on such terms as this court may direct, upon it appearing that such party or parties might be affected by the reversal of the judgment or order complained of.
14. Same--Dismissal for Defect of Parties--Notice of Appeal--Statutes.
Section 5238, Rev. Laws 1910, as amended by the act approved March 23, 1917, declaring that "no appeal shall be dismissed by" this court "because any party in the court below is not made a party to the appeal," means no appeal shall be dismissed because a party in the court below is not made a party to the petition in error, the notice of intention to appeal automatically making all parties of record in the lower court adverse parties to the proceedings in error when the same are filed in this court.
15. Same--Parties--"Defendants in Error."
Under section 5238, Rev. Laws 1910, as amended by act approved March 23, 1917, all parties of record in the court from which the appeal is taken, other than the plaintiff in error and parties not appearing at the trial or filing a disclaimer, are parties defendants in error to the proceedings in error in this court, irrespective of whether or not they are named as such in the petition in error; provided, the notice of intention to appeal is given as required by the statute, and the plaintiff in error otherwise appeals in due time by filing petition in error in the appellate court with certified copy of a transcript of the record or proper case-made attached thereto.
16. Usury--Penalty--Recovery--Limitation of Actions.
Under section 3 of article 14 of the Constitution, if usury has been contracted for and not paid, the penalty may be pleaded by the defendant as a set-off in an action to recover the debt; but if such usurious interest has been paid, it cannot be set up as a defense in an action to recover the debt, but can only be recovered in a separate action brought for that purpose within two years after the payment of the usurious interest. The two-year statute of limitations begins to run from the date of payment, and not from the due date of the note or contract.
17. Limitation of Actions--Right to Plead Statute--Vested Rights.
The privilege to plead the statute of limitations when it has run and become a bar to a remedy arising ex contractu or ex delicto is a vested right. There is no vested right to a remedy after the substantive right is lost.
18. Same.
In the absence of a constitutional provision to the contrary, there is no vested right in a statute of limitations before the cause of action is barred under it, although the statute began to run before it was extended or shortened by subsequent statute.
19. Same--Change in Statutes--Constitutional Law.
Under section 52, art. 5, Williams' Oklahoma Constitution, statutes of limitations may not be altered or repealed so as to revive either a barred cause of action or a remedy thereon, but statutes of limitations, so long as they relate only to remedies, may be altered and repealed before the bar has become complete.
20. Same-- Recovery of Penalty for Usury.
If the cause of action to recover in a separate suit twice the amount of interest actually paid under a usurious note, bill, or other evidence of debt, was barred by the two-year statute of limitations contained in section 3 of article 14 of the Constitution, and section 1005, Rev. Laws 1910, prior to the date the act of the legislature approved March 4, 1916, took effect, amending said section 1005, the amendatory act did not revive the cause of action or remedy.
21. Same-- Recovery by Way of Set-Off or Counterclaim.
Where the usurious interest was actually paid within two years next before the amendatory act approved March 4, 1916, became effective, the debtor may recover from the creditor receiving the same twice the amount by way of set-off or counterclaim in any action brought by the creditor to recover the principal debt or principal debt and unpaid interest, without regard to limitation of time, it being provided under section 4746, Rev. Laws 1910, that a set-off or counterclaim "shall not be barred by the statutes (plural) of limitations until the claim of the plaintiff is so barred."
22. Constitutional Law--Impairing Obligation of Contracts-- Change of Remedies.
Remedies for the enforcement of a contract, existing at the time the contract is made, are a part of the obligations of the contract to the extent that they cannot be totally abolished or repealed or changed so as to substantially obstruct or retard the enforcement of the contract or lessen the value of the agreement, such a change of remedies being unconstitutional and void. But a repeal or change of remedies which does not substantially diminish the value of an agreement, or retard or obstruct its enforcement, escapes the inhibition of the...
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