Morgan v. Karcher
| Decision Date | 12 April 1921 |
| Docket Number | 10069. |
| Citation | 197 P. 433,81 Okla. 210,1921 OK 136 |
| Parties | MORGAN v. KARCHER ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a party against whom a judgment is rendered files a motion to vacate the judgment upon the ground that the court has no jurisdiction of the defendant, and said motion is based upon nonjurisdictional as well as jurisdictional grounds held, that thereby said party enters a general appearance, as though said appearance had been made at the trial.
After a final judgment or decree has been rendered, and the term expires, there must be a substantial compliance with the terms of the statute in order to give the court further jurisdiction over the same.
A judgment is void when it affirmatively appears from an inspection of the judgment roll that either of three following elements is absent, to wit, First, jurisdiction over the person, second, jurisdiction over the subject-matter; and, third, judicial power to render the particular judgment.
It is error for the trial court to overrule a demurrer to a petition to vacate a judgment when said motion does not allege any grounds that authorizes the court to vacate said judgment after the term.
Appeal from District Court, Creek County; Ernest B. Hughes, Judge.
Action by A. R. Morgan against M. S. Karcher and others. Judgment for defendants, and plaintiff appeals. Reversed and remanded with instructions.
J. T Smith, of Sapulpa, for plaintiff in error.
John R Miller, of Sapulpa, for defendants in error.
On November 18, 1914, A. R. Morgan commenced suit in the district court of Creek county against R. J. Hill, J. S. Baldwin, M. S. Karcher, E. W. Coulter, Edgar Udan, Fred Pennington, and Paul M. Pope, to recover the sum of $1,572 for drilling a well upon a certain oil and gas lease owned by Hill and Baldwin, and to foreclose a mechanic's lien, which had been filed against said leasehold estate. On the 18th day of November, 1914, summons was issued and served upon all of the defendants except Paul M. Pope.
On December 16, 1914, there was filed a disclaimer, signed by Udan and Pennington, disclaiming any interest in the oil and gas lease, and a stipulation signed by Burk & Harrison, attorneys for plaintiff, and Hughes & Miller, attorneys for Udan and Pennington, reciting that Udan and Pennington claimed no interest in the oil and gas lease, and that the case as to them should be dismissed.
On December 17, 1914, an answer was filed by Attorneys Bennett and Pope, purporting to be the answer for all of the defendants. On the 18th day of December, 1914, there was filed a journal entry, dismissing the case against Udan and Pennington with prejudice.
February 2, 1915, the Bovaird Supply Company filed a petition of intervention in said case to foreclose a mechanic's lien upon the leasehold estate, and attached thereto a copy of their lien claim. On the 26th day of February, 1915, a judgment was rendered in favor of the plaintiff and against the defendants R. J. Hill, J. S. Baldwin, M. S. Karcher, and E. W. Coulter for the sum of $1,572 and foreclosure of the lien on the lease, and the same be sold, to satisfy the said judgment, but execution be stayed pending the determination of the lien claim of the intervener Bovaird Supply Company.
On the 5th day of March, 1915, Karcher and Coulter filed an answer to the petition of plaintiff, denying liability and disclaiming any interest in the leasehold estate, and filed a cross-petition against the codefendants Hill and Baldwin, alleging they had built a rig upon the lease, and had filed a lien statement against the leasehold estate for their labor, and asked to have the same foreclosed. On the 13th day of March, 1915, execution was issued out of the district court of Creek county in said action, directing the sheriff to levy upon the property of Hill, Karcher, Coulter, and Baldwin to satisfy said judgment. On the 12th day of May, 1915, said execution was returned, "No property found." In November, 1916, judgment was rendered in favor of Bovaird Supply Company, against Hill and Baldwin in the amount of its claim and for foreclosure of its lien on the lease.
The cross-petition of Karcher and Coulter is still pending against Hill and Baldwin, and undisposed of. On March 1, 1916, Karcher and Coulter filed a petition to set aside the judgment rendered February 26, 1915, in favor of the plaintiff, and against them for $1,572, and prayed for an order staying execution, and for grounds alleged that the judgment was void, for the reason that no valid and legal summons was served on the defendants prior to entering said judgment, and alleging they did not appear in said cause; Second, that the purported summons served on defendants was void, for the reason the style of the process was not in the name of the state of Oklahoma; Third, that E. B. Hughes, the district judge who tried the case, was disqualified, having been a member of the law firm of Hughes & Miller, prior to the time of taking the oath of office, and the firm of Hughes & Miller were attorneys for Udan and Pennington, and filed a stipulation in said case, and that the rights of Udan and Pennington conflicted with the rights of Karcher and Coulter, and by reason of said fact, Hughes was disqualified to act as judge, and the judgment rendered by him was void; Fourth, it was alleged that plaintiff was threatening to have execution issue in said case, and, unless restrained, execution would issue and be levied upon the property of defendants, and prayed that the judgment be set aside, and vacated, and plaintiff be enjoined from levying execution upon the property of Karcher and Coulter.
On the 24th day of April, 1918, plaintiff filed a demurrer to the petition of the defendants to set aside said judgment, and the cause came on...
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