Pfister v. Johnson, Case Number: 20760
| Decision Date | 17 September 1935 |
| Docket Number | Case Number: 20760 |
| Citation | 49 P.2d 174,173 Okla. 541,1935 OK 824 |
| Parties | PFISTER v. JOHNSON |
| Court | Oklahoma Supreme Court |
¶0 1. Infants -- Appeal and Error -- Minor's Right to Appeal From Judgment Within Six Months From Date of Removal of Disability not Defeated by Failure of Guardian Ad Litem to Give Statutory Notice of Appeal.
The right of a minor to appeal to this court from a judgment rendered in the district court within six months from the date of removal of such disability, as provided by section 547, O. S. 1931, is not defeated by the failure of a guardian ad litem representing said minor in the district court to give notice of intention to appeal in open court within ten days from the date of rendition of the judgment as provided by section 531, O. S. 1931.
2. Statutes -- Privileges Granted Certain Class by Special Act not Affected by Inconsistent General Legislation.
Privileges granted to a certain class by special act are not affected by inconsistent general legislation, unless a contrary intent of the Legislature is clearly expressed or indubitably inferable therefrom. But the special act and the general law stand together; the one as the law of a particular case, the other as the general rule.
3. Appeal and Error--Jurisdiction Conferred Upon Supreme Court but no Procedure Prescribed by Legislature for Acquiring Jurisdiction of Parties--Duty of Court to Prescribe Effective Procedure.
Where jurisdiction of an appeal is conferred upon this court by the Constitution and statutes, but no mode or form of proceeding is prescribed by the Legislature for acquiring jurisdiction of the parties thereto, the duty devolves upon this court to prescribe its own mode and form of proceeding and to issue its own process which is effective to vest this court with jurisdiction of the parties.
4. Infants--Statutory Right of Minor to Show Cause Against Judgment or Final Order Cannot Be Destroyed or Abridged Through Suit to Quiet Title Against Him During Minority.
The right of a minor given by section 431, O. S. 1931, to show cause against a judgment or final order rendered and entered against him in a proceeding authorizing an administrator's sale of land in the county court, cannot be destroyed or abridged through a suit to quiet title against said minor during his minority.
5. Same--Minor's Right of Appeal.
Where such an action is brought against the minor, resulting in a final judgment against said minor, said minor may, within six months from the date of attaining majority, appeal to this court, where the errors complained of appear on the face of the record (section 547, O. S. 1931).
6. Same--Strict Legal Rights of Minor Cannot Be Waived by Guardian Ad Litem.
A guardian ad litem cannot waive the strict legal rights of a minor.
7. Same -- Erroneous Judgment Against Minor Quieting Title Based on Petition Which Failed to State Cause of Action Where Action not Properly Defended by Guardian Ad Litem.
In an action against a minor to quiet title to real property, where the petition fails to state a cause of action and the answer of a guardian ad litem consists of a general denial, and said guardian ad litem fails to demur to said petition, and fails to object to the introduction of evidence, the insufficiency of the petition is not waived, and a judgment rendered on said defective pleadings is erroneous.
Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
Action by Ida Johnson against Tulsa Drew, a minor, now Pfister. Judgment for plaintiff, and defendant appeals after attaining her majority. Reversed and remanded, with directions.
Geo. S. Ramsey, Christy Russell, and John S. Robinson, for plaintiff in error.
Davidson & Williams and Bert E. Johnson, for defendant in error.
¶1 On February 21, 1922, the district court of Tulsa county rendered a judgment in an action pending in said court wherein one Ida Johnson was plaintiff and Tulsa Drew, a minor, was defendant, quieting title to certain real property situated in Tulsa county. On September 27, 1929, Tulsa Pfister, nee Drew, defendant in said action, appealed from said judgment by petition in error and transcript of the record. The parties will be referred to as they appeared in the trial court.
¶2 The petition in error recites that prior to her marriage defendant's name was Tulsa Drew; that she attained her majority on September 14, 1929; that the petition filed against her in the district court on October 21, 1921, alleged that plaintiff therein, Ida Johnson, was the owner and in possession of the property therein involved; that her title was derived through the sale of said property by the administrator of the estate of Emma Drew, deceased; that defendant was the sole heir of Emma Drew and was a minor under the age of 14 years; that one Earl Sneed was her guardian; that said land was sold under the order of the county court of Tulsa county to one Rachel Perryman; that through a series of conveyances plaintiff became the owner thereof, and prayed that her title be quieted and that defendant be adjudged to have no right or title therein.
¶3 The petition in error further recites that Earl Sneed was appointed guardian ad litem to represent defendant in said action; that he filed an answer which did not conform to the requirements of the statute; that thereafter a journal entry of judgment was entered quieting title in plaintiff, but the judgment was vacated and the guardian directed to file an answer in conformity with the provisions of the statutes of Oklahoma. Thereafter an answer was filed by Earl Sneed as guardian ad litem in which he denied each and every allegation in the petition prejudicial to the interests of the minor defendant. The cause was advanced upon the docket of the district court and on February 21, 1922, a judgment was entered in favor of plaintiff and against defendant quieting title to said property.
¶4 When the petition in error was filed in this court an order was made directing the sheriff of Tulsa county to serve upon the defendant in error a writ of scire facias ad audiendum errores. On October 8, 1929, the return of the sheriff was filed showing service thereof upon the said defendant in error. An examination thereof discloses that it is sufficient to notify the defendant in error that said appeal had been filed in this court.
¶5 We will consider first a motion to dismiss the appeal, filed by defendant in error. This involves a construction of certain statutes hereinafter set forth.
¶6 Section 547, O. S. 1931, provides:
"All proceedings for reversing, vacating or modifying judgments or final orders shall be commenced within six months from the rendition of the judgment or final order complained of; Provided, that in case the person entitled to such proceeding be an infant, a person of unsound mind or imprisoned, such person shall have six months, exclusive of the time of such disability, to commence proceedings."
¶7 In connection with the above statute, see Tinker v. Scharnhorst, 129 Okla. 118, 263 P. 645; Sawyer v. Ware, 36 Okla. 139, 128 P. 273, and Cudjo v. Harris, 119 Okla. 69, 248 P. 343. The right of a minor to appeal to this court within six months after reaching his majority is expressly granted by statute and recognized by these and other authorities.
¶8 Defendant in error contends, however, that the right of appeal in this case is lost to the defendant for failure to comply with the provisions of section 531, O. S. 1931, enacted as chapter 219, Session Laws 1917, the material portions thereof being as follows:
¶9 Prior to the enactment of the above statute and under the provisions of section 5238, R. L. 1910, which was expressly repealed, summons in error was required to be issued out of this court...
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