Owen v. District Court, Oklahoma County

• Decision Date: 16 June 1914
• Docket Number: 5228.
• Citation: 143 P. 17,43 Okla. 442,1914 OK 281
• Parties: OWEN v. DISTRICT COURT OF OKLA HOMA COUNTY ET AL.
• Court: Oklahoma Supreme Court

143 P. 17

43 Okla. 442, 1914 OK 281

OWEN v. DISTRICT COURT OF OKLA HOMA COUNTY ET AL.

No. 5228.

Supreme Court of Oklahoma

June 16, 1914

Rehearing Denied Sept. 22, 1914.

Syllabus by the Court.

A writ of prohibition will issue to prevent a trial court from reconsidering its order denying a new trial on a motion or petition for a new trial and rehearing the same after the expiration of the trial term, since such action is an unauthorized application of judicial force and is void.

The office of a motion for a new trial and of a petition for a new trial is the same; and a motion for a new trial to review the order of the court denying such motion or petition is unauthorized by statute and unnecessary, and does not have the effect of extending the time within which the trial court can reconsider its order denying a petition for a new trial beyond the term at which the same was made.

Original petition for writ of prohibition by Lula Owen against the District Court of Oklahoma, in and for the Thirteenth Judicial District of Oklahoma, and Hon. George W. Clark Judge. Writ issued.

Kane C.J., dissenting.

F. E Riddle, of Chickasha, for plaintiff.

Shartel Keaton & Wells, of Oklahoma City, for defendants.

BLEAKMORE J.

This matter comes before this court upon an original petition for writ of prohibition to be issued against the district court of Oklahoma county and Hon. George W. Clark, judge thereof presiding. In substance, it is alleged in the petition: That the plaintiff, in December, 1910, filed her petition in the district court of Oklahoma county declaring upon a contract of insurance in the sum of $5,000 and interest. Issues were joined on said petition, and said cause came on for final trial before the respondent, Hon. George W. Clark, on the 20th day of October, 1911, resulting in a judgment of $5,246.65 for the plaintiff. A copy of said judgment is attached as an exhibit to the petition. That on the 4th day of December, 1911, the Continental Casualty Company, defendant in said cause, filed its motion for a new trial, and the same came on regularly for hearing, which was by the court denied and exceptions taken. That petition in error was prosecuted to this court, and that on the 4th day of April, 1913, an opinion was filed in this court affirming the judgment of the trial court. That a petition for rehearing was filed, which was denied, and mandate of this court was issued. That in February, 1912, and while said original cause was in progress of appeal to this court, the Continental Casualty Company, defendant in said cause, filed its application in the district court of Oklahoma county for a new trial, on the ground of newly discovered evidence. That said application for new trial was heard on the 13th day of March, 1912, and the matter taken under advisement until the 6th day of April, 1912, when an order was made by the court denying said application. After the court made the order denying the application for a new trial, the petitioner therein, Continental Casualty Company, filed its formal motion for a new trial, praying that the order denying its application for a new trial be vacated and a rehearing had thereon for the alleged causes:

"(1) Said finding and judgment are not sustained by sufficient evidence. (2) Said finding and judgment are contrary to law and to the weight of the evidence. (3) Errors of law occurring at the trial and duly excepted to by said plaintiff at the time."

No action was taken on this motion, except to continue the same from term to term for a period of a year or more, and until after the affirmance of the original judgment in this court and issuance of mandate thereon. The answer defendants filed in this cause admits, substantially, the facts alleged in said petition, and sets forth copies of its application for a new trial upon newly discovered evidence, with the exhibits attached, and the answer of plaintiff to said petition for a new trial in the district court, together with the rulings of said court thereon. On May 31, 1913, over the protest of the plaintiff, Lula Owen, that the district court had no further jurisdiction in said matter, the court entered its order attempting to set aside and vacate the order theretofore entered in April, 1912, denying the petition for new trial, and unless prohibited will proceed further in said cause, and again hear said application for a new trial.

Did the district court of Oklahoma county lose jurisdiction to act further in said proceeding after the term at which the petition for new trial was heard and denied? In determining this question we must take into consideration the question as to whether the petition of the defendant the Continental Casualty Company for a new trial and the proceeding thereon in the district court constitute an action or a special proceeding, and whether a motion for a new trial thereof was a necessary prerequisite to a review of such proceeding in this court, provided by statute. And in this connection it will be pertinent to ascertain: (1) Whether or not said petition for a new trial comes within the statutory provision defining a petition as a pleading; (2) whether said petition is a pleading such as is defined and contemplated by the statute; (3) were the proceedings had thereon a "trial" within the meaning of that term as defined by the statute; and (4) did the action of the court denying the prayer of said petition constitute a judgment?

"An action is an ordinary proceeding in a court of justice by which a party prosecutes another party for the enforcement or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense." Section 5536, Comp. Laws 1909.

"Every other remedy is a special proceeding." Section 5537, Comp. Laws 1909.

The proceeding in the district court was begun under section 5829, Comp. Laws 1909, which is as follows:

"Where the grounds for a new trial could not, with reasonable diligence, have been discovered before, but are discovered after the term at which the verdict, report of referee or decision was rendered or made, the application may be made by petition, filed as in other cases, not later than the second term after discovery, on which a summons shall issue, be returnable and served, or publication made, as prescribed in section 5614. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered."

In Magill v. Lyman, 6 Conn. 59, speaking of a petition for new trial, it is said:

"But it is a singular termination of a cause when neither party recovers anything but the bootless privilege of further litigation. A suit or action is a legal demand of one's right; but a petition for a new trial, like a motion for the same object, is not an action. It demands nothing, but

simply asks permission to review a cause already decided, which the court may award of their own accord, if satisfied that justice has not been done."

Section 5825, Comp. Laws 1909, defines a new trial, and provides that:

"The former verdict, report, or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: * * * Second, misconduct of the jury or prevailing party; * * * seventh, newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial."

By section 5828, Comp. Laws 1909, the application must be made by motion, upon written grounds filed at the time of making the motion.

And section 5827, Comp. Laws 1909, provides that such application must be made at the term the verdict, report, or decision is rendered, and except for the cause of newly discovered evidence shall be within three days after the verdict or decison was rendered, unless unavoidably prevented.

It seems that the only difference made by the statute in the procedure requisite to an application for a new trial at the term at which the verdict or decision was rendered, and thereafter, is that in the first instance the same must be presented to the trial court at the same term and within three days, unless unavoidably prevented, and that in the second it may be presented upon the same grounds not later than the second term after the discovery, and not after the expiration of one year after the time the final judgment was rendered. There is no difference as to method of the hearing, except that in the latter instance the court is authorized to hear evidence of witnesses in open court or by way of depositions. The decision of the court, in either instance, results in an order either granting or denying the prayer of the movant, or petitioner, that a re-examination of the issues, after verdict of the jury or decision of the court may be had in the original proceeding, and not in a judgment such as is contemplated or required to be rendered in an ordinary action.

"A judgment is the final determination of the rights of the parties in an action." Section 5123, Rev. Laws 1910.

"Every direction of a court or judge made, or entered in writing, not included in a judgment, is an order." Section 5316, Rev. Laws 1910.

The petition for a new trial is heard and summarily decided at the ensuing term, or, if filed in term time, within 20 days after...