Schmeusser v. Schmeusser
| Decision Date | 05 October 1937 |
| Docket Number | Case Number: 27412 |
| Citation | 1937 OK 550,72 P.2d 378,181 Okla. 18 |
| Parties | Schmeusser v. Schmeusser |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
¶0 1. PLEADING--Objection to Introduction of Evidence Equivalent to Demurrer to Petition.
Objection to the introduction of any evidence under a petition is equivalent to a demurrer to such petition.
2. PLEADING--Exhibits Controlling Where Variance Between Them and Petition.
When there is fatal variance between the allegations of a petition and the exhibits attached thereto the exhibits control.
3. JUDGMENT--Insufficiency of Petition to Vacate Judgment--Objection to Introduction of Any Evidence.
When a petition to vacate a judgment together with the exhibits thereto attached wholly fail to state facts sufficient to entitle plaintiff to any relief, objection to the introduction of any evidence under such petition is properly sustained.
Appeal from District Court, Oklahoma County; George H. Giddings, Jr., Judge.
Action for divorce by Annie Schmeusser against Carl A. Schmeusser, wherein the plaintiff by petition sought to vacate a judgment theretofore rendered in her favor. From an order sustaining defendant's objection to the introduction of any evidence under the petition and from a judgment dismissing the petition, the plaintiff appeals. Affirmed.
R. S. Howe, Hugh M. Bland, and John Howard Payne, all of Oklahoma City, for plaintiff in error.
Nowlin & Conner, of Oklahoma City, for defendant in error.
¶1 This is an appeal from an order sustaining an objection to the introduction of any evidence under a petition to vacate a decree of divorce and judgment dismissing the petition.
¶2 From the record it appears that on July 31, 1934, the defendant in error filed in the district court of Oklahoma county an action for divorce against the plaintiff in error. It was alleged in said petition that the parties had theretofore made a property settlement. Plaintiff in error first filed an answer wherein she denied the allegations of the petition and charged that the property settlement referred to by the defendant in error had been obtained from her by fraud, intimidation and coercion. Plaintiff in error thereafter filed a full and complete cross petition in said cause wherein the property accumulated by the parties was described with particularity and declared to be of the value of $50,000, and wherein she prayed a division of said property, permanent alimony, and general equitable relief. Answer was a general denial. The cause came on for trial and the evidence of the defendant in error was heard on October 25, 1934, and that of the plaintiff in error on October 26, 1934, and thereupon the court directed that the plaintiff in error be paid certain temporary alimony and that she amend her cross petition so as to include a prayer for divorce. The cross petition was amended as directed and filed in said court on December 31, 1934, and on the same day a decree of divorce was granted the plaintiff in error and the property settlement was approved and a division of property and alimony was awarded the plaintiff in error. The defendant complied with this decree and the plaintiff in error received and accepted its benefits. It appears that in the divorce proceedings the parties were represented by counsel and the action was contested and that in said connection the plaintiff in error had the advice and counsel of able attorneys of her own choosing who approved the journal entry of judgment. Thereafter plaintiff in error obtained new counsel and on January 13, 1936, filed a petition to vacate said judgment. Therein she alleged that said judgment and decree was void for the reason that it had been rendered without the proof required by section 679, O.S.1931, and further alleged that the decree had been obtained by the defendant in error as the successful party by fraud practiced upon the court and fraud practiced upon the plaintiff in error. The allegations of fraud contained in the petition were in substance that the plaintiff in error was not in court after filing her amended cross petition and did not testify in support thereof and that the statements to this effect in the judgment were false and, further, that fraud had been practiced upon the court and the plaintiff in error in that the defendant in error had misrepresented the condition of certain royalties which had been deeded to her and also the extent of his wealth and that but for such misrepresentations she would not have entered into the property settlement nor have accepted the decree in her favor. To this petition there were attached as exhibits copies of the amended cross petition and of the decree in the divorce action. Defendant in error demurred to the aforesaid petition and when his demurrer was overruled answered and therein renewed his demurrer and pleaded estoppel and res adjudicata. When the matter came on for hearing the defendant interposed an objection to the introduction of any evidence under the...
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Crockett v. Root
... ... It is clear that the record in cause No. 2891 was ... not the foundation of the cause of action of Adolphus ... Crockett. The case of Schmeusser v. Schmeusser, 181 ... Okl. 18, 72 P.2d 378, in so far as it conflicts with the rule ... just stated, is overruled ... It ... ...
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S.J. Groves & Sons Co. v. Oklahoma City
... ... cause of action. An objection to the introduction of evidence ... is equivalent to a demurrer to the petition (Schmeusser ... v. Schmeusser, 181 Okl. 18, 72 P.2d 378), and therefore ... in passing upon the same the petition must be liberally ... construed, and all ... ...
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...said instruments, and in this connection our attention is directed to Sawyer v. Sawyer, 182 Okla. 348, 77 P. 2d 703; Schmeusser v. Schmeusser, 181 Okla. 18, 72 P. 2d 378; Robison v. Hamm, 179 Okla. 79, 64 P. 2d 894; Devine v. Pyanhunkah, 170 Okla. 178, 39 P. 2d 132; Mason v. Slonecker, 92 O......
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...is equivalent to a demurrer to the petition. S. J. Groves & Sons Co. v. Oklahoma City, 191 Okl. 276, 129 P.2d 185; Schmeusser v. Schmeusser, 181 Okl. 18, 72 P.2d 378. The question to be determined, then, is whether plaintiff's petition is sufficient to state a cause of Plaintiff cites Prest......