Porter v. Tayer, 39913
| Decision Date | 16 July 1963 |
| Docket Number | No. 39913,39913 |
| Citation | 385 P.2d 808,1963 OK 176 |
| Parties | A. N. PORTER, Plaintiff in Error, v. Essie TAYER et al., Defendants, and Eddie McDuffy and Erie McDuffy, Intervenors, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Error occurring during trial of a case cannot be considered by this Court on appeal unless a motion for a new trial founded upon and including such errors has been made by the party complaining and presented to the trial court and by it denied.
2. Where a pleading is filed contesting the validity of a tax deed and seeking cancellation thereof, and a tender of all taxes, interest, penalties, cost and expenses is made, it is not necessary to deposit the money in court when the pleading is filed, but the time when it shall be deposited is by Title 12 O.S.1961 § 309, left to the discretion of the trial court, except that it must be deposited prior to rendition of judgment in favor of the party making the tender.
3. Where the State of Oklahoma ex rel. Department of Highways, commences 4. The word 'expense' as employed in Title 68 O.S.1961 § 455, includes only those expenses legally assessed against the property, and do not include personal expenses of the holder of the tax deed in obtaining the tax deed or defending the alleged invalidity of such deed.
condemnation proceedings against property on which a tax deed has been issued, and the report of Commissioners is filed and a sum equal to the appraised value is deposited with the Court Clerk and no request for a jury trial has been made, it is not error for the trial court to refuse to direct a cash deposit for all taxes, penalties, interest, cost and expenses by one contesting the validity of the tax deed and seeking to cancel it and allow the condemnation funds on deposit to be in lieu of the necessary cash tender.
Appeal from the District Court of Oklahoma County; W. R. Wallace, Jr., Judge.
Defendants in error intervened in condemnation proceedings wherein the State of Oklahoma ex rel. Department of Highways, was the plaintiff, and plaintiff in error, Porter was the principal defendant. Porter claimed title to the property by virtue of a tax deed. Judgment was rendered against Eddie McDuffy in favor of Porter, and judgment was rendered in favor of Erie McDuffy, cancelling the tax deed. Porter appeals from the order overruling his motion for a new trial. Judgment affirmed.
Elliott, Woodard & Meister, Ted R. Elliott, Oklahoma City, plaintiff in error.
LeRoy Powers of Stagner, Alpern & Powers, and John F. Eberle, Oklahoma City, for Eddie McDuffy and Erie McDuffy, Intervenors, defendants in error.
On October 14, 1958, the State of Oklahoma ex rel. Department of Highways, commenced condemnation proceedings to condemn certain property in Oklahoma City. A. N. Porter, plaintiff in error, owner of a tax deed on the property was named as owner and principal defendant. The property was appraised by the Commissioners for $2,750.00, and said amount was deposited in the office of the Court Clerk. The State took possession of the property and no demand was made for a jury trial.
On December 19, 1958, Eddie McDuffy, one of the defendants in error, who was the legal owner of the property when the same was sold for taxes and the tax deed issued, filed his Petition in Intervention and alleged that he was the owner of the property and entitled to the proceeds from the condemnation proceedings. This cause came on for hearing on December 1, 1959, and evidence was introduced.
On December 2, 1959, Erie McDuffy, one of the defendants in error and wife of Eddie McDuffy, filed her Petition in Intervention and alleged her homestead rights, and prayed that her interest in the property be established.
Although the record does not contain a judgment of the trial court entered on March 11, 1960, or a Minute thereon, Erie McDuffy, on May 24, 1961, filed her application For Hearing on Settlement of Journal Entry. In this application she alleged that a judgment was entered on March 11, 1960, in her favor which provided she make good her tender of all taxes, penalties and costs which the court might find due and owing; that no evidence had been received on the amount required and the parties were unable to agree so that a journal entry could be filed. She prayed that the trial court set the case for further hearing for the purpose of determining the amount she should be required to deposit or to have deducted from the condemnation funds on deposit to make good her tender and 'upon such hearing to settle the journal entry of judgment to be entered and filed or record in this case'. On June 22, 1961, Erie McDuffy filed a Written Tender of Texas, Penalties, Interest and Costs, and alleged that it supplemented the tender made The application of Erie McDuffy, for settlement of Journal Entry was heard on July 17, 1961. Porter objected to any evidence being submitted for the alleged reason the cause has been previously tried and judgment entered. The trial court overruled his objections and exceptions allowed.
by her on December 2, 1959, to the County Treasurer of Oklahoma County.
On July 24, 1961, a Journal Entry of Judgment was filed which set forth that on March 11, 1960, the court had considered the evidence and being fully advised found that (1) the tax deed procured by Porter is a valid deed as to the interests in the property of Eddie McDuffy, (2) that said tax deed is void, insofar as it affects the interest of Erie McDuffy, and should be cancelled as to such interest. The judgment then confirmed the tax deed in favor of Porter against Eddie McDuffy and cancelled the tax deed as to the interests of his wife, Erie McDuffy. The journal entry further stated that on July 17, 1961, the application of Erie McDuffy for settlement of journal entry came on for hearing and found the tender to be $783.90, which included interest to March 11, 1960, and the expenses of Porter to be $156.45. The court then ordered the Court Clerk to disburse the said sums to Porter and the residue of the money to Erie McDuffy. It further stated that 'Now on this 17th day of July, 1961, the motion for new trial of A. N. Porter, defendant, coming on for hearing and the court being fully advised, finds that the same should be overruled'. The order then overruled Porter's motion for a new trial.
On July 20, 1961, Porter filed his motion for a new trial 'as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved in this action.' He then alleged the errors complained of and prayed that he be granted a new trial as to the issue tried on July 17, 1961. Porter's motion for new trial was overruled on July 20, 1961.
Porter perfected his appeal from the order overruling his motion for a new trial.
Porter contends that where a judgment has been entered sustaining a Certificate Tax Deed, and denying any relief to the record owner or the real property, it is a complete judgment and vests full title in the tax deed holder, and a further judgment rendered, at the same trial between the parties, holding the same tax deed also void as to the 'interest' of the wife of the record owner, is a nullity, as there can be only one final judgment rendered in an action.
It seems to be the theory of Porter, that the trial court rendered a final judgment on March 11, 1960, which determined the ownership of the property, and that portion of the judgment holding the tax deed void as to the interest of Erie McDuffy, the wife of the prior record owner is a nullity.
As heretofore stated, on July 20, 1961, Porter filed a motion for a new trial 'as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved in this action * * *.' Therefore, the motion for new trial filed on July 20, 1961, does not relate or have reference to the trial court's judgment concerning ownership of the property or the invalidity of the tax deed as against the interests of Erie McDuffy. Nor does said motion for new trial relate to or include as a specification of error the proposition set forth above which is urged by Porter.
The Court is committed to the rule that error occurring during the trial of a case cannot be considered in this Court unless a motion for a new trial founded upon and including such errors has been made by the party complaining and presented to the trial court and by it denied. See Hall v. Pearson, 203 Okl. 221, 219 P.2d 617; Oklahoma Natural Gas Co. v. Pickett, 208 Okl. 671, 258 P.2d 186; and Staten Grocery v. McMahan, Okl., 337 P.2d 440. Therefore, unless Porter has included the error complained of in this proposition in another motion for new trial the same cannot be considered in this appeal.
In his brief, Porter states that he 'filed his motion for new trial after the cause was tried and concluded on its merits, and after the Minute was made on March 11, 1960'.
As heretofore stated, in the trial court's Journal Entry of Judgment entered on July 17, 1961, the trial court did overrule the motion for new trial of Porter and it was not the motion for new trial of Porter, 'as to that part of the judgment rendered on July 17, 1961, as pertains to the tender involved * * *'. However, the record contains no motion for new trial by Porter which relates to the proposition under consideration. We therefore hold that the proposition set forth as proposed by Porter cannot be considered by this Court for the reason that the record does not contain a motion for new trial founded upon and including this error complained of. Accordingly, that portion of the judgment entered on July 17, 1961, which determined that the tax deed in favor of Porter as against the interest of Erie McDuffy is void and is cancelled, is affirmed.
Porter contends that where money is paid in court in condemnation proceedings, and an alleged claimant tenders the taxes,...
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