Redcorn v. Dist. Court of Eighth Judicial Dist.

• Decision Date: 11 February 1930
• Docket Number: Case Number: 20787
• Citation: 284 P. 1113,141 Okla. 237,1930 OK 79
• Parties: REDCORN v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.
• Court: Oklahoma Supreme Court

1930 OK 79

284 P. 1113

141 Okla. 237

REDCORN v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. et al.

Case Number: 20787

Supreme Court of Oklahoma

Decided: February 11, 1930

Syllabus

¶0 1. Courts -- Prohibition -- Supreme Court's Superintending Power Over Inferior Tribunals.

Under section 2, article 7, Constitution, the original jurisdiction of the Supreme Court extends to a general superintending control over all inferior courts, and it has power to issue writs of prohibition.

2. Prohibition--When Proper Remedy to Control Inferior Tribunal.

Prohibition is the proper remedy where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force in a cause otherwise cognizable by it.

Original action for writ of prohibition by Raymond Redcorn against the District Court of the Eighth Judicial District et al. Writ granted.

Sams & Campbell and William G. Davidson, for petitioners.

RILEY, J.

¶1 Petitioner, Raymond Redcorn, a full-blood Osage Indian, is a resident of Osage county. The respondents consist of the district judge in Love county and attorneys for this state. Grace B. Redcorn is the wife of petitioner. On May 23, 1929, Grace B. Redcorn commenced an action in the district court of Love county for divorce. Summons was issued, but copy of summons as served notified petitioner to file answer in the district court of Osage county. The date for filing answer was blank as to year and the summons served contained no seal of the court. Petitioner herein, defendant therein, pleaded specially to the jurisdiction of the court. His plea was overruled. Petitioner pleaded further to the jurisdiction in the divorce action and in effect that his wife was not a resident in good faith of Love county, but prior to May, 23, 1919, she was a resident of Osage county and resided in Pawhuska in the home of petitioner as his wife; that on said date she had left Osage county with her attorneys, respondents Weaver and Carr, and went to Marietta, Love county, for the specific purpose of bringing her action for divorce and alimony, and that she left Marietta two or three days after filing said action and returned to Osage county and the home of petitioner, where she has since resided as his wife.

¶2 The Honorable District Judge, after a hearing, overruled and denied petitioner's plea to jurisdiction. Petitioner was required to answer, which he did, continuing to object to jurisdiction for the reason of defective service of summons and the nonresidence in good faith of plaintiff in said cause for divorce.

¶3 On May 23, 1919, the date of filing the petition for divorce, the Honorable District. Judge ordered petitioner to pay temporary alimony in the sum of $ 250 per month and the sum of $ 1,000 temporary counsel fee and the sum of $ 50 court cost. The order provided a lien for said sums upon the real and personal property of petitioner. Petitioner was also restrained from alienating or disposing of his property described. On June 7, 1929, the lien and restraining order was extended to other real estate of petitioner. Citation for contempt, for alleged failure to comply with the payments ordered, was served upon petitioner and he was directed to appear therein September 28, 1929. Petitioner requested and secured a continuance of said contempt hearing until October 12, 1929. On October 7, 1929, this court issued its temporary writ of prohibition staying further proceedings, pending final disposition of the matters presented.

¶4 We decline, in this proceeding, to pass upon whether Grace B. Redcorn was, at the time of filing her petition for divorce, a resident in good faith of Love county. Sections 206, 502, C. O. S. 1921; "Prohibition is the proper remedy where an inferior court is attempting to make an excessive and unauthorized application of judicial force in a case otherwise properly cognizable before it, or where the lack of jurisdiction is apparent on the face of the proceedings." Yarhola v. Duling, 86 Okla. 171, 207 P. 293; Davis v. Dist. Ct., 129 Okla. 236, 264 P. 176; Jones v. Pugh, Judge, 130 Okla. 291, 267 P. 272; Owen v. Dist. Ct., 43 Okla. 442, 143 P. 17; Kincannon v. Pugh, 114 Okla. 90, 243 P. 945.

¶5 There exist fatal defects in the summons served upon petitioner in the divorce action. Sections 233, 239, C. O. S. 1921.

¶6 Dexter v. Cochran, 17 Kan. 447, holds that a summons without the clerk's seal on it is an absolute nullity and confers no jurisdiction over the person. Lindsey v. Board County Commissioners, 56 Kan. 630, 44 P. 605; Hawkins v. Payne, 129 Okla. 243, 264 P. 179.

¶7 The summons was fatally defective in that it directed petitioner to answer in the district court of Osage county instead of the court from whence the writ issued, to wit, Love county. Hines v. Bacon, 86 Okla. 165, 207 P. 93; State ex rel. Collins v. Parks, Judge, 34 Okla. 335, 126 P. 242; Sealey v. Smith et al., 81 Okla. 97, 197 P. 490.

¶8 The summons omitted to state the time within which answer was to be filed.

"Under section 506, C. O. S. 1921, the allowance of counsel fees in an action for divorce is but incident to the main action, and such counsel fees will be allowed only while the main action is pending." Friedman v. Freeman, 132 Okla. 45, 269 P. 257.

¶9 Now counsel for respondents have cited many cases holding that a court having jurisdiction of a divorce action has power to order alimony pendente lite and temporary attorney fees without notice. Gundry v. Gundry, 11 Okla. 423, 68 P. 509; Fowler v. Fowler, 61 Okla. 280, 161 P. 227; Uhl v. Irwin, 3 Okla. 388, 41 P. 376.

¶10 The facts in the Gundry Case are that: "This petition was duly verified by the plaintiff and filed on March 26, 1901, on the same day summons was duly issued and served on the defendant. On April 3, 1901, and before answer was filed" the temporary alimony award was made without notice as to the pendency of such an...