Schulte v. Board of Com'rs of Pontotoc County
| Decision Date | 27 October 1925 |
| Docket Number | 15065. |
| Citation | 250 P. 123,119 Okla. 261,1925 OK 872 |
| Parties | SCHULTE et al. v. BOARD OF COM'RS OF PONTOTOC COUNTY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 11, 1926.
Application to File Second Petition Denied Oct. 26, 1926.
Syllabus by the Court.
Section 4268, Compiled Statutes 1921, authorizes municipal corporations to fund their outstanding legal indebtedness including bonds, judgments, and warrants. The right to contest granted to interested parties by section 4269, Compiled Statutes 1921, means that the protest against the funding of judgments shall be made in accordance with the established legal and equitable rules relating to the validity of judgments of courts of record. The hearing and trial provided by section 4270, Compiled Statutes 1921, in relation to the issuance of funding bonds based upon judgments of a court of general jurisdiction, must be governed by the preceding rules.
Errors if any, in matters of quasi jurisdictional nature, which may be committed by a court of general jurisdiction in the course of the trial of a cause, over which it has jurisdiction, are not reflected in the judgment of the court. The judgment of a court of general jurisdiction, entered in the trial of a cause, over which it has jurisdiction, is not subject to collateral attack for errors, if any, committed in relation to quasi jurisdictional acts, in the course of exercising jurisdiction over the subject-matter, vested in the court by the Constitution or statutory laws.
The judgment of a court of general jurisdiction is subject to attack for collusive acts or for fraud, which is extrinsic or collateral to the issues involved in the trial of the cause. It is immaterial whether the attack be collateral or direct when based upon fraud as defined in this paragraph.
The attack on a judgment rendered by a court on the ground of fraud is in the nature of an equitable proceeding. The judgment rendered in a proceeding attacking a judgment upon the ground of fraud will not be reversed upon appeal, unless the judgment be clearly against the weight of the evidence.
Record examined; held, to support the judgment of the court denying the cancellation of the judgments, and ordering the funding of the judgments.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Pontotoc County; A. C. Barrett, Special Judge.
Action by the Board of County Commissioners of Pontotoc County to fund certain outstanding, legal indebtedness. W. F. Schulte and others intervened in the cause, protesting against issuing the bonds. Judgment was entered ordering the funding of the indebtedness and sustaining demurrers to interveners' petition to cancel certain judgments. Interveners appeal. Affirmed.
W. F Schulte, of Ada, for plaintiffs in error.
J. W. Dean, I. M. King, John P. Crawford, and John Blanford, all of Ada, for defendants in error.
The board of county commissioners of Pontotoc county entered into contracts with certain bridge companies to reconstruct several steel bridges which had been damaged and destroyed by flood waters in the summer of 1921. The bridges were constructed, apparently, in a satisfactory manner to the board of county commissioners and all other parties concerned until the funding proceedings were commenced in June, 1923. The bridge companies entered their suits against the board of county commissioners of Pontotoc county to recover the contract price for constructing the bridges. Judgments were entered in the cases in favor of the bridge companies as follows: Cause No. 6281, Walter Simons judgment, $4,400; cause No. 6282, Boardman Company judgment, $4,846; cause No. 6320, Mann Constructing Company judgment, $8,600.
The total of the three judgments is $17,846. The judgments are regular upon their face, and the findings of fact made in the journal entries show that the judgments were rendered for a valid indebtedness against Pontotoc county. An action was commenced by W. H. Wells, as assignee, No. 6246, in the district court of Pontotoc county, against the board of county commissioners for the recovery of $32,000. The evidence of indebtedness sued on in the latter action was represented by numerous claims, which appear regular and valid upon their face. The first of the judgments involved in this action was entered along in the summer of 1921, and the last was entered in June, 1923. The board of county commissioners of Pontotoc county commenced proceedings in the district court of that county on the 18th day of June, 1923, to fund these judgments.
W. F. Schulte et al. filed application in the original actions as numbered above to cancel the judgments. The petition for cancellation of the judgments alleged, in substance: (1) That J. W. Bolen, the district judge who resided in Pontotoc county, was interested in the action; (2) that the petitions in each of the causes failed to state a cause of action in favor of the plaintiffs and against the defendants; (3) that the district court of Pontotoc county which entered the four judgments did not have jurisdiction of the subject-matter; (4) that the judgments were procured through fraud and collusion by the plaintiffs and the defendant board of county commissioners with the intent to defraud the taxpayers of Pontotoc county; (5) that the plaintiffs based their suits upon false and fictitious claims, which did not exist in law and in fact.
Schulte filed what he termed a protest in the proceedings for funding the judgments rendered in the four causes as numbered herein. The respondents embodied the foregoing grounds in their protest to the issuing of the funding bonds, with the additional ground:
"That the board of county commissioners failed to cause notice by publication and by posting to be given in the funding bond proceedings, as is required by the statutes."
The plaintiff lodged demurrers to the petitions of Schulte, filed in the several causes as numbered herein, on the ground that the pleadings for the cancellation of the judgments did not entitle him to the relief prayed for.
The court ordered the causes in which proceedings had been commenced to cancel the judgments to be consolidated with the funding bond proceedings. Thereupon the demurrers to the petitions for the cancellation of the judgments were presented to the court and were sustained.
The respondent did not ask leave to amend his petitions, nor was the judgment rendered on the pleadings against Schulte. The latter gave notice of appeal to the Supreme Court from the action of the court in sustaining the demurrers to the petitions for the cancellation of the judgments. The application for funding the outstanding indebtedness, as represented by the four judgments, came on for hearing, which resulted in the court ordering the judgments to be funded as prayed for. The respondent excepted to the judgment ordering the issue of the funding bonds, and gave notice of appeal to the Supreme Court. The respondents have perfected their appeal from the order of the court sustaining the demurrers to the petition for cancellation of the judgments, and from the judgment of the court ordering the issue of funding bonds for the four outstanding judgments.
J. W. Bolen, the resident district judge, heard the four causes which resulted in the judgments involved herein. Respondents commenced a mandamus proceeding in the Supreme Court to compel the resident judge to certify his disqualification to hear the funding bond proceedings. The judge filed his response in the mandamus proceedings, and later disqualified to hear the proceedings. The Chief Justice assigned A. C. Barrett, as special judge, to hear the funding bond proceedings.
The respondents have assigned several of the proceedings had in the trial of the cause as error for reversal here. The main objections to the judgments are: (1) That the court did not have jurisdiction of the subject-matter in the trial of the four causes which resulted in the judgments involved; (2) that notice was not published and posted by the board of county commissioners in the funding bond proceedings, as is required by law; (3) that the judgments were obtained by collusive acts between the parties with the knowledge of the trial judge; (4) that the claims upon which the judgments were based are fictitious, and were created after the funds levied by the county had been exhausted.
The plaintiffs in error, first, attack the sufficiency of the published and posted notice given in the funding bond proceedings.
The funding bond proceeding was set for hearing and heard on the 29th day of June, 1923. The notice of the hearing was posted as is required by law on June 18th. The notice was published in a newspaper located at the county seat on the 18th, 22d, 24th, 25th, and 26th of June, 1923.
The question of the sufficiency of the published and posted notice is not involved in this case. The respondents attacked the proceedings both on jurisdictional and nonjurisdictional grounds. The effect of such action was to enter the appearance of the respondents for all purposes. Ziska v. Avey, 36 Okl. 405, 122 P. 722; Pratt v. Pratt, 41 Okl. 577, 139 P. 261; Rogers v. McCord-Collins Merc. Co., 19 Okl. 115, 91 P. 864; Lookabaugh v. Epperson, 28 Okl. 472, 114 P. 738.
The cases cited by the respondents relate to special appearance and motion to quash, or in cases where default was made by the defendants. The persons for whom notice was intended responded and answered to the merits of this action.
The respondent assigns error on the ground that the court sustained the demurrers to his petition for the cancellation of the judgments. The judgment of the court sustaining the demurrer was not a final judgment from which the adverse party might appeal. The...
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