Purdy v. Miller Hunter Co.

• Decision Date: 18 December 1923
• Docket Number: Case Number: 14571
• Citation: 1923 OK 1165,221 P. 490,94 Okla. 209
• Parties: PURDY et al. v. MILLER HUNTER CO.
• Court: Oklahoma Supreme Court

1923 OK 1165

221 P. 490

94 Okla. 209

PURDY et al. v. MILLER HUNTER CO.

Case Number: 14571

Supreme Court of Oklahoma

Decided: December 18, 1923

Syllabus

¶0 1. Evidence--Parol Evidence Varying Writing.

Parol evidence is not admissible to add to, vary, or contradict the terms of a writ- ten contract, except upon proper allegations of fraud, accident, or mistake.

2. Appeal and Error--Harmless Error.

Where the right of the plaintiff to recover upon the undisputed facts is so apparent that the errors assigned, if sustained, could not have resulted in a miscarriage of justice, the judgment will be affirmed.

Cheatham & Beaver, for plaintiffs in error.

Fred M. Carter and C. M. Gordon, for defendants in error.

PINKHAM, C.

¶1 The controversy in this action grows out of a cross-petition filed by defendants in error, Miller Hunter Company, against plaintiffs in error, A. H. Purdy and A. J. Combs, who were defendants in an action wherein Henry Hill sued the said A. H. Purdy and A. J. Combs and Miller Hunter Company, in the district court of Creek county, for the cancellation of a tax deed and possession of certain land in which said action a judgment was rendered in said court in favor of the plaintiff Henry Hill, and against each of said defendants canceling the tax deed and restoring the possession of the land involved to the said Henry Hill. On March 22, 1921, the case was tried upon the issues presented by petition of the original plaintiff, Henry Hill, and the answers thereto of plaintiffs in error and defendants in error, and after hearing the evidence the court held that the title under which Purdy and Combs claimed was illegal, and title to the land was quieted in plaintiff, Henry Hill, the tax title under which Purdy and Combs claimed, and the oil and gas lease from them to these defendants in error, Miller Hunter Company, was canceled, set aside, and held for naught. No appeal was taken from that judgment, so that the only question left for adjudication in the case was the question of whether these defendants in error. Miller Hunter Company, were entitled to recover of plaintiffs in error, under their cross-petition, the purchase money paid for the oil and gas lease in the sum of $ 1,000, with interest thereon, and $ 160 attorneys' fees. The answer to this cross-petition on the part of the said Purdy and Combs admits the execution of the lease, the payment of the $ 1,000, and also admits "that said oil and gas lease contained a warranty of title by these defendants", and then alleges that it was understood and agreed between plaintiffs in error and these defendants in error that these defendants in error took the lease subject to the validity of the tax title of plaintiffs in error; that these defendants in error would not hold plaintiffs in error responsible for said title, and further alleges that said oil and gas lease should be reformed and these defendants should be relieved from liability under said warranty, and that the lease should be so reformed as to exclude therefrom said warranty of title.

¶2 On the 23rd of March, 1921, plaintiffs in error, Purdy and Combs, filed a motion for a new trial. On the 2nd day of June, 1921, a judgment was rendered in favor of Miller Hunter Company upon their cross-petition against the plaintiffs in error, Purdy and Combs. On the 4th day of June, a motion for new trial in said action upon the judgment of June 2, 1921, was filed. On November 3, 1921, the said motion for new trial was granted. On December 5, 1921, Miller Hunter Company filed a petition to vacate order granting new trial. On the 10th day of February, 1921, the trial court made an order finding the allegations as set forth in the petition of Miller Hunter Company, to vacate the order of November 3, 1921, to be true, and further found that said order granting a new trial should be vacated, and therefore pronounced judgment vacating said order, and ordering, adjudging and decreeing that the original judgment of June 2, 1921, in favor of Miller Hunter Company against Purdy and Combs be and remain in full force and effect, and in the same plight and condition as if the order of the court pronounced herein on November 3, 1921, granting said Purdy and Combs a new trial had been an order of that date, overruling and denying the motion for new trial. Exceptions were saved and the cause is here on appeal from the last mentioned judgment of the trial court. The errors assigned are, first, that said judgment of February 10, 1923, was contrary to law, and was not supported by any testimony as to the amount due from the plaintiffs in error to the defendants in error; second, that said journal entry and judgment of February 10, 1923, was contrary to law in that the district court of Creek county, Okla., was without power and jurisdiction to set aside the judgment of said court of November 3, 1921, by which a new trial was granted upon the judgment of June 2, 1921; third, said order and judgment of February 10, 1923, was contrary to law in that the said court was without power and jurisdiction to reinstate said judgment of June 2, 1921, in favor of Miller Hunter Company against these plaintiffs in error.

¶3 It is contended by counsel for plaintiffs in error that when the trial court has granted a new trial and vacated a judgment upon motion therefor, thereafter the order granting a new trial is conclusive and binding, and will not be disturbed except by a direct proceeding had for that purpose, that is, by exception and appeal; and further that the court would be without jurisdiction to entertain a motion to set aside the order by which a new trial was granted, but could only, upon proper showing, correct the order granting a new trial, so as to make the same speak the truth. We do not question the soundness of this contention as a general proposition, and the cases cited to the effect that a judgment or...