Sandlin v. Pharoah

• Decision Date: 01 March 1938
• Docket Number: Case Number: 27076
• Citation: 1938 OK 143,182 Okla. 442,78 P.2d 284
• Parties: SANDLIN v. PHAROAH et al.
• Court: Oklahoma Supreme Court

1938 OK 143

78 P.2d 284

182 Okla. 442

SANDLIN v. PHAROAH et al.

Case Number: 27076

Supreme Court of Oklahoma

Decided: March 1, 1938

Syllabus

¶0 1. ABATEMENT AND REVIVAL - Motion for Release of Judgment not Effective to Divest Another Court of Jurisdiction to Try Issue of Correctness of Judgment Where Motion Filed on Eve of Trial.

When under pleadings, issues are joined and a matter stands for trial as to correctness of a former judgment, asserted by judgment creditor by cross-petition, the judgment debtor cannot, by filing on the day for trial, in the superior court from which the judgment issued, a motion for release of judgment, divest the district court of jurisdiction to try these issues on grounds that the same issues are pending in the court which rendered judgment.

2. CONTINUANCE - Discretion of Court - Refusal of Motion on Ground Party Lacked Opportunity to Employ Counsel.

Granting or refusal of motion for continuance is matter within the discretion of trial court, in absence of abuse of discretion; refusal of continuance on ground party did not have opportunity to employ counsel, when record discloses that court gave ample opportunity, is not reversible error.

3. EQUITY - Jurisdiction to Administer Complete Relief - Determination of Purely Legal Rights.

When court of equity obtains jurisdiction of a controversy for any purpose, it retains jurisdiction for purpose of administering complete relief, and to this end may determine purely legal rights which otherwise would be beyond its authority. Murray v. Speed, 54 Okla. 31, 153 P. 181.

4. APPEAL AND ERROR - Change of Theory on Appeal not Permissible.

A case will not be reviewed in this court upon appeal, upon a theory which was not presented to the trial court.

Appeal from District Court, Okmulgee County; S.L. O'Bannon, Judge.

Suit in equity for partition to quiet title, determine heirs, and for accounting by J.N. Maloy against G.L. Sandlin, O.J. Pharoah, the American National Bank of Beggs, et al. From judgment for Pharoah and the Bank on their cross-petitions against Sandlin, he appeals. Affirmed.

Roddie & Beckett, for plaintiff in error.

G.L. Bynum and Carland Smith, for defendant in error O.J. Pharoah.

CORN, J.

¶1 This is an appeal from a judgment of the district court of Okmulgee county, in an action instituted by J.N. Maloy for "partition of and quiet title to real estate and determination of heirs, and to require accounting of rents and profits between the co-owners of the land." In his petition Maloy alleged that he owned an undivided one-eighth interest in a tract of land, and named Sandlin, plaintiff in error herein, and O.J. Pharoah, defendant in error herein, as parties defendant, together with all other parties whom the records disclosed had any interest, claim, or lien in or to the property.

¶2 To the petition Pharoah filed an answer and cross-petition, alleging that he held a judgment against Sandlin, rendered in 1927 in the superior court of Okmulgee county, upon which Sandlin still owed $5,000, and asked that this judgment be declared a lien against his one-eighth interest. The American National Bank of Beggs also filed answer and cross-petition, setting up a judgment it held against Sandlin, and asked that the same be decreed to be a lien, Sandlin filed answers setting out that he held legal title in trust for another. Later he filed an amended answer alleging full settlement with Pharoah and the bank, all of which they denied.

¶3 Early in September, 1935, the case was tried as to all issues except those between Sandlin and Pharoah and Sandlin and the bank, and as to these a continuance was granted until September 13, 1935. On the day set for trial Sandlin appeared with an attorney, who announced in open court that he withdrew as Sandlin's attorney unless his fee was paid. The court then gave Sandlin time to either raise the money to pay counsel or to employ another attorney, neither of which he did.

¶4 After hearing the case, the court found that Pharoah's judgment constituted a prior lien and that the bank's judgment was a lien, subject to that of Pharoah's, and decreed that this lien was secured by Sandlin's interest in the land involved. From this judgment Sandlin brings this appeal, relying upon five propositions set out in the motion for new trial, which was overruled.

¶5 The first proposition is that the court erred in overruling his motion for new trial. This naturally depends upon the sufficiency of the remaining propositions and will not be separately considered.

¶6 The second proposition is that the trial court was without jurisdiction to render any judgment against Sandlin on the cross-petition of the bank. Inasmuch as the controversy here is between Sandlin and Pharoah, this proposition does not merit further discussion in deciding this appeal.

¶7 Sandlin urges in his third proposition that the district court of Okmulgee county did not have jurisdiction to try the issues involved because the same issues were pending in the superior court of that county by reason of a motion to satisfy judgment on file in that court.

¶8 The record discloses that Sandlin filed no pleading nor denial of Pharoah's cross-petition until September 3, 1935, when he filed answer setting up that he did not owe anything, having already settled. Thereafter, September 13, 1935, the present case was ready for trial, and Sandlin then objected to trial for the reason that the motion was pending in the superior court, where the judgment had been rendered, requiring Pharoah to satisfy his judgment. The record, of which the judgment docket of the superior court is a part, discloses that this motion was filed September 13, 1935, which was the first time Sandlin raised any objection to the district court trying the issues.

¶9 The journal entry in the instant case recites that the case stood for trial and Sandlin moved for a continuance as to the issues between himself and Pharoah, and the bank, and the court granted the continuance.

¶10 Sandlin had filed his answer May 28, 1935, setting up that he held legal title in trust for another. The bank filed a reply, and he was then granted leave to file an amended answer out of time, which he did September 3, 1935, alleging that he owed nothing, having settled all amounts due. To this Pharoah filed a reply denying the allegations in the answer.

¶11 By these pleadings the issues were joined and the case was ready for trial, but continuance was granted upon Sandlin's motion. We do not understand how, under the facts disclosed by the record, Sandlin can seriously contend that the trial court was without jurisdiction to try the issues simply because upon the day set for trial in the district court he had filed a motion to satisfy judgment in the superior court wherein this judgment had been rendered more than five years before. Without further discussion we hold that Sandlin could not divest the district court of jurisdiction by filing this motion in the court from which such judgment was rendered, in an attempt to raise issues there which were already joined in the district court.

¶12 Sandlin also assigns as reversible error the trial court's refusal to grant his motion for continuance on the ground that he did not have opportunity to employ counsel.

¶13 September 13, 1935, after one continuance had been granted upon his own motion, Sandlin appeared with an attorney. An oral motion for continuance was offered by Sandlin on the grounds of absence of necessary witnesses, which was overruled. The attorney for Sandlin then announced in open court his own intention to withdraw from the case unless paid part of his fee. Thereupon the court gave Sandlin time to either raise money to pay the attorney or to find other counsel, but h...