Schneider v. Decker

• Court: Oklahoma Supreme Court
• Writing for the Court: EAGLETON, C.
• Citation: Schneider v. Decker, 144 Okla. 213, 291 P. 80, 1930 OK 395 (Okla. 1930)
• Decision Date: 09 September 1930
• Docket Number: Case Number: 19719
• Parties: SCHNEIDER v. DECKER et al.

1930 OK 395

291 P. 80

144 Okla. 213

SCHNEIDER v. DECKER et al.

Case Number: 19719

Supreme Court of Oklahoma

Decided: September 9, 1930

Syllabus

¶0 1. Evidence--Judicial Notice of Court's Decision in Another Case Between Parties.

This court will take judicial notice that, in another case between the same parties or their privies which was previously before it and to which reference is made in the pending litigation, a judgment vital to the pending litigation has been entered.

2. Appeal and Error--Proceedings After Remand--Validity of Decree Upon Retrial Though Mandate not Filed in Lower Court.

On the reversal of a cause, a mandate should be issued, filed in the trial court and there spread of record before further proceedings are had. But if, after a cause has been reversed by the Supreme Court and mandate issued thereon, a retrial is had pursuant to the mandate and opinion of this court, and no objection to retrial is at that time made on the ground that the mandate has not been received, filed, and spread of record, it is but harmless error, and no weakness inheres in the decree entered by reason thereof.

3. Judgment--Ignorance, Mistake, or Negligence of Attorney not Ground for Vacating Judgment.

It is a general rule that neither the ignorance, mistake, nor the misapprehension of an attorney, not occasioned by the adverse party, is any ground for vacating a judgment. Neither will relief ordinarily be granted upon any ground that the attorney, through design, ignorance, or negligence, mismanaged the defense.

Commissioners' Opinion, Division No. 2.

Error from District Court, Woodward County; F. Hiner Dale, Judge.

Action by Georg Schneider against H. F. Decker et al. Defendant E. C. Maddox filed demurrer to the petition, which was sustained. Plaintiff appeals. Affirmed.

John J. Carney, for plaintiff in error.

C. H. Wyand, for defendants in error.

EAGLETON, C.

¶1 Georg Schneider brought suit against E. C. Maddox et al., to vacate mortgage foreclosure judgment, to recover title to real estate, and to obtain damages for removal of improvements on the real estate, and for loss of use of said premises, Summons was served on E. C. Maddox only. His demurrer to the petition was sustained. Georg Schneider brought this appeal.

¶2 It is made to appear by the petition that Georg Schneider, in 1915, made a contract to purchase the real property involved. A deed was executed to him, but before delivery the name of the grantee was changed, the name of Frederich Weidner inserted, the property was sold and delivered to him. Schneider brought suit to enforce specific performance of his contract, alleging that Weidner bought the land with notice of his rights. On trial judgment was entered against the plaintiff. He appealed to this court and obtained reversal thereof. He contends that this court ordered decree of specific performance entered pursuant to opinion handed down in that cause on December 23, 1919 (Schneider v. Decker, No. 9104). He attaches to his petition in this cause a copy of that opinion and prays that the court enforce the provisions thereof and give him title and possession of the premises.

¶3 In his second cause of action, he alleges that the mandate from this court in cause No. 9104, supra, has not been received and spread of record in the trial court, and that the trial court was without jurisdiction to retry the cause and enter a decree requiring Weidner to convey the land to him, the plaintiff, and require this plaintiff to assume obligations thereunder.

¶4 He further contends that, after he had appealed the first cause, Weidner placed a mortgage on the premises; that Lida Zwergle thereafter by assignment became the owner and holder thereof; that the mortgagee and the assignees thereof all took with notice of the rights of this plaintiff and in furtherance of the fraudulent scheme to defeat his rights in the property, and that their claims were without force or effect as against him; that Lida Zwergle brought suit to foreclose this mortgage; that he was made defendant therein; he employed attorney to represent him; that the said attorney withdrew from the cause and allowed the mortgage foreclosure to go to judgment by default without his knowledge. He alleged further that E. C. Maddox took deed to the premises from the grantee of the purchaser at the mortgage foreclosure sale, but that his purchase was not, in fact, a purchase, but a mere pretense. Maddox was alleged to be in possession of the premises.

¶5 He prayed to vacate the mortgage foreclosure judgment, to set aside all the conveyances which clouded his title, for title to the premises, for possession thereof, to have his title quieted, and for damages.

¶6 The only question here presented is whether or not a cause of action was stated in plaintiff's petition.

¶7 This court will take notice of its judgments and decrees, of its records and proceedings in actions formerly pending before it. It will take particular notice of proceedings formerly pending before it, to which reference is made in the pending litigation, wherein the same persons or their privies were parties and a decision vital to the pending cause has been entered. Loeser v. Loeser, 50 Okla. 249, 150 P. 1045; Ward v. Schwab, 106 Okla. 29, 232 P. 849; Courtney v. State (Okla. Cr.) 269 P. 1059; 15 R. C. L. 1115; 12 Ann. Cas. 539, note; Custer v. Kroeger (Mo.) 280 S.W. 1035, 44 A. L. R. 1328; U.S. v. California Co-Op. Canneries, 279 U.S. 553, 73 L. Ed. 838, 49 S. Ct. 423.

¶8 It is as well true that courts will disregard on demurrer those things pleaded which are contrary to facts of which the court will take judicial notice.

"Ordinarily, when a case is submitted on demurrer, all of the facts stated in the pleadings demurred to are taken as true. To this rule there are some exceptions, one of which is important here. Only those facts are admitted by a demurrer which it is necessary to allege in the pleading. It is not necessary to allege facts of which the court will take judicial notice. Such facts will be considered by the court although not pleaded. * * * Those allegations of a pleading which are not necessary, and which are contrary to the facts of which judicial notice is taken are not admitted by a demurrer, but are treated as a nullity. * * *" French v. Senate (Cal.) 80 P. 1031, 2 Ann. Cas. 756, 69 L. R. A. 566.

To the same effect are 21 R. C. L. 509, and Verde Water & Power Co. v. Salt River W. U. Ass'n (Ariz.) 197 P. 227.

¶9 It appears from examination of the records of this court in cause No. 9104, Schneider v. Decker, which is reported in 129 Okla. 170, 189 P. 525, that the opinion relied on by the plaintiff and pleaded by him in his said petition was withdrawn by this court, and on May 4, 1920, a new opinion written, which reversed the cause and ordered a new trial therein, and that mandate thereon was shortly thereafter issued by the clerk of this court. There is no showing in the petition that any objection was made by the plaintiff in this action to the retrial of the cause in the trial court before the formal mandate of this court had been there received and spread of record. The mandate is but the formal advice and order of the Supreme Court to the trial court. It should be transmitted, filed, and recorded before further proceedings are had in the trial court, but the failure to receive, file, and record it prior to the further proceedings which are had in the trial court pursuant to the determination made by the Supreme Court may be waived.

"The mandate of the appellate court remitting the cause to the lower court is the official mode of communicating its judgment to the inferior tribunal. But while such a mandate may be necessary, if proper objection is made, to enable the lower court to proceed with the cause, still, this is regarded as a mere matter of practice; the theory being that the judgment of the appellate court gives the lower court authority to retry the cause, and if it is proceeded with in the lower court without objection being made to the absence of the mandate, the latter has jurisdiction." 2 R. C. L. 287.

¶10 The Supreme Court of Nebraska, speaking through Commissioner Roscoe Pound, stated the rule in the following language:

"If, however, both parties proceed without objection in the absence of a mandate, if the provisions of the judgment of reversal are carried out, and trial had, we do not doubt that the irregularity is not to be taken advantage of by either party in appellate proceedings. It is fundamental that no error is available in such proceedings unless prejudicial, and such an irregularity would be technical only, and without serious results." Horton v. State (Neb.) 88 N.W. 146.

¶11 In support of this rule are the following: Compiled Oklahoma Statutes, section 801; 4 C. J. 1208, 1210, 1211; State v. Banning (Ia.) 218 N.W. 572; Paul v. Luttrell, 1 Colo. 491; Gerard v. Gateau, 15 1ll. App. 520; Smith v. Garbe (Neb.) 124 N.W. 921, 136 Am. St. Rep. 674, 20 Ann Cas. 1209; Foster v. Jordan, 54 Miss. 509, 510.

¶12 This court, in several opinions, has stated that an order entered in a cause from which an appeal has been taken to the Supreme Court, after this court has rendered its decision and prior to the time...