Neil v. Union Nat. Bank of Chandler

• Decision Date: 05 March 1918
• Docket Number: 8495.
• Citation: 178 P. 659,72 Okla. 116,1918 OK 139
• Parties: NEIL v. UNION NAT. BANK OF CHANDLER et al.
• Court: Oklahoma Supreme Court

178 P. 659

72 Okla. 116, 1918 OK 139

NEIL v. UNION NAT. BANK OF CHANDLER et al.

No. 8495.

Supreme Court of Oklahoma

March 5, 1918

Rehearing Denied March 4, 1919.

Syllabus by the Court.

An assignment of error, which in effect merely alleges that the court erred in rendering judgment for one party and against the other, presents nothing for this court to review.

In the absence of some statutory limitation, a judgment upon default may be rendered at any time during any term of court after the time fixed or allowed for answer has expired notwithstanding the case was not placed on the trial docket prepared and printed pursuant to sections 5040 and 5041, Rev Laws of Oklahoma 1910.

The clerk of the district court may, at any time during the term at which the proceedings were had, correct, amend, or supply omissions to make the records speak the truth, and where a judgment was rendered on the 30th day of December, 1915, as shown by the clerk's minutes, and where on February 5 1916, and during the same term the court signed a precedent for judgment, it was not irregular for the clerk to enter such judgment on the journal.

An attorney at law has authority, by virtue of his employment as such, to do in behalf of his client all acts necessary or incidental to the prosecution and management of the suit which effect the remedy as distinguished from the cause of action, and such an attorney has the right to waive a jury and consent to try his client's case on a date before the action regularly stood for trial.

The petition on which the judgment in the instant case was based, examined, and held to state a cause of action.

In the absence of any showing in the record to the contrary, the Supreme Court will presume that the trial court followed the law and did not render the judgment of foreclosure until proof was made that the mortgage tax imposed by chapter 246, Session Laws of 1913, had been paid.

Additional Syllabus by Editorial Staff.

In action upon a note secured by a mortgage waiving appraisement, where the mortgagor claimed to be sole owner of land, it was not error to decree a sale of his interest therein if he defaulted in payment of judgment following terms of mortgage.

Error from District Court, Lincoln County; Chas. B. Wilson, Judge.

Action by the Union National Bank of Chandler, Okl., against Cora Neil, formerly Cora Walker, a single woman, and Cora Neil, as administratrix of the estate of Elizabeth Jackson, deceased, and others. Judgment for plaintiff against Cora Neil, motion to vacate the judgment overruled, and Cora Neil individually and as administratrix brings error. Affirmed.

Erwin & Erwin, of Wellston, for plaintiff in error.

H. W. Harris, of Chandler, and Burford, Robertson, Hoffman & Burford, of Oklahoma City, for defendant in error Union Nat. Bank of Chandler.

RAINEY J.

The parties to this action will be herein referred to as they appeared in the trial court.

The Union National Bank of Chandler, Okl., instituted this action in the district court of Lincoln county against Cora Neil, formerly Cora Walker, a single woman, and Cora Neil, as administratrix of the estate of Elizabeth Jackson, deceased, being the same person as Lizzie Jackson, and the same person as Mary Elizabeth Jackson, Thelma Walker, Wayne M. Walker, Courtland M. Feuquey, and Willie Boales West, Louise Esther West, and Isaac C. West, Jr., sole heirs of I. C. West, deceased.

The purpose of the action was to recover a person judgment on three notes executed by Cora Neil, and to foreclose a mortgage given by her, in her individual capacity, upon "all her interest" in a certain quarter section of land in Lincoln county, to secure the payment of said notes. The allegations as to the other defendants in the action were that they had or claimed some interest in the land, and the petitioner prayed that said defendants be required to appear and set up such interest in said estate, if any they claimed, or that they be forever barred. To this petition Cora Neil, in her individual capacity, answered, admitting the execution of the notes and mortgage, but sought to evade the same on equitable grounds, not necessary for the purposes of this opinion, to be recited here. Cora Neil, as administratrix, was made a party defendant, but did not plead to the plaintiff's petition.

On January 22, 1915, on motion of the plaintiff, the trial court rendered a judgment on the pleadings against the defendant, Cora Neil, which was afterwards vacated on her motion, whereupon the plaintiff filed its reply. Thereafter, on the 30th day of December, of the same year, at a nonjury term of the court, the cause was called for trial instanter, tried to the court, a jury being waived, and judgment rendered in favor of the plaintiff against Cora Neil on the notes and foreclosing the mortgage on the land as to the interest of Cora Neil. On the same day the notes and mortgages were filed for cancellation. At this hearing Cora Neil was represented by her attorney, F. A. Rittenhouse. The precedent for judgment was not filed until February 5th, which was during the term, but after Cora Neil had filed a motion to vacate the judgment. This motion to vacate was filed the same day the precedent for judgment was filed, and was signed by Messrs. Erwin & Erwin, as her attorneys, and these gentlemen also represent her in this court. The appearance docket of December 30th showed the following proceedings:

"Dec. 30, Cause called for trial instanter.

Dec. 30, Tried to court, jury waived.

Dec. 30, Judgment in favor of plaintiff per J. E., foreclosing interest of Cora Neil, for attorney's fee, $150.00.

Dec. 30, filed 3 notes (30), file one Mtg."

The precedent for judgment, filed on February 5th, recites that the plaintiff appeared by its attorneys, and that Cora Neil appeared by her attorney, F. A. Rittenhouse; that the parties present and represented in open court waived a jury, and consented to the submission of the cause to the court upon the issues joined between the plaintiff and the several defendants. On April 3d thereafter, the court overruled the motion to vacate the judgment, and from this order Cora Neil, in her individual capacity, and as administratrix of the estate of Elizabeth Jackson, deceased, has appealed to this court.

The defendant, in her individual and in her representative capacity as administratrix, has made eight assignments of error, but the first, second, third, and eighth assignments of error merely allege, in effect, that the court erred in refusing to vacate the judgment, which assignments are insufficient to present any question for the consideration of this court. Longest et al. v. Langford (Okl. No. 8455) 169 P. 493, not yet officially reported; Wilson v. Mann, 37 Okl. 475, 132 P. 487; Board of Com'rs v. Oxley, 8 Okl. 502, 58 P. 651; Willet v. Johnson, 13 Okl. 563, 76 P. 174; Gill v. Haynes, 28 Okl. 656, 115 P. 790; De Vitt v. El Reno, 28 Okl. 315, 114 P. 253.

The remaining assignments of error are as follows:

"(4) That the court erred in overruling the motion of the plaintiff in error to vacate judgment, for the reason that said judgment was irregularly obtained.

(5) That the court erred in overruling the motion of the plaintiff in error to vacate judgment, for the reason that such judgment was rendered before the action regularly stood for trial.

(6) That the court erred in overruling the motion of the plaintiff in error to vacate judgment, for the reason that such judgment was obtained by fraud practiced by the successful party apparent upon the face of the

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