Oklahoma State Bank of Cushing v. Buzzard
| Decision Date | 10 October 1916 |
| Docket Number | 7110. |
| Citation | 160 P. 462,61 Okla. 88,1916 OK 851 |
| Parties | OKLAHOMA STATE BANK OF CUSHING v. BUZZARD ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
There can be no judgment by default where there is on file an answer or other pleading raising an issue of law or fact.
Before a default judgment can be properly entered the answer or other plea must be disposed of in an orderly way by motion demurrer, or in some other manner.
Where by order of court a defendant was granted time within which to plead without jurisdiction as to the character of pleading, and conformably to such order the defendant files a proper pleading presenting the question of jurisdiction of the court over the person of the defendant, a judgment by default against such defendant prior to the disposal of such pleading was prematurely rendered and a motion to vacate the same filed at the same term should have been sustained. In such case it is unnecessary that such party should affirmatively allege a defense to the cause of action stated in the petition.
Commissioners' Opinion, Division No. 3. Error from District Court, Garfield County; James W. Steen, Judge.
Action by F. B. Buzzard and another against the Oklahoma State Bank of Cushing. Judgment for plaintiffs, and defendant brings error. Reversed and remanded, with directions.
John F Curran, of Enid, for plaintiff in error.
Parker & Simons, of Enid, for defendants in error.
On the 23d day of January, 1914, F. B. Buzzard instituted suit in the district court of Garfield county, Okl., against the Oklahoma State Bank, of Cushing, located in Payne county Okl., and one E. H. Howell, and caused summons to be issued to said bank directed to the sheriff of Payne county, which was subsequently served upon said bank in Payne county, Okl and service of summons was made upon Howell in Garfield county, Okl., the county of his residence.
It is alleged in said petition that on the 23d day of October, 1913, the said Buzzard entered into a written contract with the Jones Oil & Gas Company, a corporation, and other parties named therein, whereby pursuant to said contract the plaintiff deposited in the Oklahoma State Bank of Cushing the sum of $1,000, and that E. H. Howell was named as one of the parties in said contract, but that he was only a nominal party and that no part of the $1,000 thus deposited by plaintiff with said bank belonged to the said Howell, but that all of said money was advanced by the plaintiff and other parties associated with him; that by the terms of said contract, it was provided that said $1,000 should be forfeited and turned over to first parties in the event plaintiff failed to comply with his contract, and that this provision was null and void and gave said parties of the first part no right to demand or to receive said money as a forfeiture for his failure to perform said contract.
It was further alleged in the petition that the Oklahoma State Bank aforesaid, without right or authority, paid said $1,000 to the Jones Oil & Gas Company, and thereby said bank converted said money to its own use and benefit and became liable therefor to the plaintiff, and that the bank turned said money over to said company by the direction of the defendant E. H. Howell, and that if the said Howell consented thereto the same was unauthorized, and without authority of the plaintiff, and that the said Howell was acting in collusion with the defendant and the oil company for the purpose of defrauding plaintiff out of said money; that the said Howell refused to join with the plaintiff in this action, and for that reason and the facts above stated is made a party defendant herein. Wherefore the plaintiff sought to recover judgment against the bank and Howell for the sum of $1,000, with interest.
Thereafter on the 20th day of February, 1914, the Oklahoma State Bank filed the following motion in said cause in said court (omitting caption):
On February 9, 1914, E. H. Howell filed a demurrer for himself to said petition, and thereafter, on the 15th day of June, 1914, the court heard the motion of the bank, and, being fully advised in the premises, overruled and denied the same to which ruling the bank excepted, and thereupon on the same day the plaintiff made application to amend his petition and was allowed 10 days in which to do so, and the bank was allowed 20 days in which to plead to said amended petition.
On the 22d day of June, 1914, the plaintiff filed an amended petition, which alleged conspiracy upon the part of the bank and Howell and the oil company in detail, the purpose of which was to defraud the plaintiff, and to appropriate the $1,000 deposited by plaintiff with said bank.
Thereafter on the 9th day of July, 1914, the Oklahoma State Bank of Cushing filed virtually the same motion which it had formerly filed to the original petition in this cause. This motion was never acted upon by the court.
On the 5th day of September, the resident defendant E. H. Howell filed a separate answer to said amended petition. And on the 5th day of September a judgment by default was rendered in said action in favor of the plaintiff and against the Oklahoma State Bank.
Thereafter on the 29th day of September, 1914, and at the same term of the court, the Oklahoma State Bank of Cushing filed its motion to vacate and set aside said judgment for the reason that its plea to the jurisdiction of the court had not been passed upon by the court, and therefore it was not in default. And for the further reason that no judgment had been rendered in said cause against the resident defendant E. H. Howell. This motion to vacate said judgment was on the 26th day of October, 1914, overruled by the court, to which ruling of the court the said bank excepted.
It is contended by the bank that this judgment was prematurely rendered for the reason that at the time of its rendition it had on file a plea to the jurisdiction of the court, and that until this plea to the jurisdiction was passed upon by the court it was not in default as claimed by the plaintiff below.
The defendant in error, however, asserts that when the bank filed its motion attacking the jurisdiction of the court, that inasmuch as it raised nonjurisdictional as well as jurisdictional questions therein, it entered its appearance to said action for all purposes and could not thereafter be heard to say that it was not properly served therein; and they further assert that inasmuch as this question of jurisdiction had been passed upon adversely to the bank, that when it filed its said motion attacking the jurisdiction of the court it did so without authority or permission of the court, and although its plea to the jurisdiction was on file the same was equivalent to no pleading, and that it was therefore in default at the time of the rendition of said judgment; and it is further asserted by the defendant in error that when the bank filed its motion to vacate said judgment, for the reason stated above, it entered a general appearance to this action which had the effect to...
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