Shufeldt v. Jefcoat
| Decision Date | 03 August 1915 |
| Docket Number | 4880. |
| Parties | SHUFELDT ET AL. v. JEFCOAT ET AL. [a1] |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where a jury is impaneled in an action of purely equitable cognizance to aid the court in finding the facts, the finding of the jury being merely advisory, the giving or refusing instructions cannot be assigned as error in this court.
Where plaintiff is allowed by the court to dismiss the action without prejudice pending a ruling on a demurrer to the evidence, or pending the decision on a motion for an instructed verdict, such order is not res judicata, and does not bar another action on the same cause of action.
Where a defendant appears specially and objects to the jurisdiction of the court by reason of defective service of summons, and his motion to quash the service is denied, he may file his answer and proceed with the trial, and this will not be held a general appearance; but where, in his answer, he asks for affirmative relief, it is a general appearance, and he thereby waives all objections to the service of the summons and subjects himself to the jurisdiction of the court for all purposes.
A purchaser pendente lite of property actually in litigation for value and without actual notice in fact, takes with notice of the action. So, where an action was instituted in March, 1910, but no summons was issued until July 19, 1910 and the purchaser acquired his title on July 26, 1910, after the summons was issued, held, that he is a "purchaser pendente lite," and such action is notice to him.
Where under the above facts, the action was dismissed by the plaintiff without prejudice in September, 1911, and a new action for the same cause of action was instituted in November, 1911, held, there being no unreasonable delay in bringing the second action, and the condition of the purchaser not having changed in any respect, the benefit of the notice of the first action is not lost.
Commissioners' Opinion, Division No. 2. Error from District Court, Roger Mills County; G. A. Brown, Judge.
Action by Charles H. Jefcoat and others against George E. Shufeldt and others. There was a judgment for plaintiffs, and defendants bring error. Affirmed.
D. W Tracy, of Sayre, and R. J. Shive, of Butler, for plaintiffs in error.
E. L. Mitchell, of Cheyenne, for defendants in error.
DEVEREUX, C. (after stating the facts as above).
The case-made shows that the defendants presented to the court a number of instructions to the jury, which were refused, and exceptions saved, and also a number of exceptions to the charges as given; but this case was one of purely equitable cognizance, and in such case, as the verdict of the jury is only advisory and not binding on the court, no such errors can be reviewed by this court. In Success Realty Co. v. Trowbridge (No. 4252) 150 P. 898, very recently decided by this court, and not yet officially reported, it is held: "Where a jury is impaneled in a case purely of equitable cognizance to aid the court in finding the facts, the finding of such jury being merely advisory, the giving or refusal to give certain instructions, regardless of whether or not such instructions given or refused correctly state the law, cannot, on appeal to this court, properly be assigned as errors."
It is next contended that the judgment of September 6, 1911, is res judicata. It appears that the dismissal was without prejudice, and by leave of court, before any verdict was returned, or ruling had on the demurrer to the evidence, and we think it obvious that this judgment was not res judicata. Rev. L. 1910, § 5125. In Schafer v. Weaver, 20 Kan. 294, it is held:
"The district court, after sustaining a demurrer to evidence interposed by the defendant, and before rendering any judgment thereon, may in its discretion allow the plaintiff to dismiss his action without prejudice."
This case was a construction of our statute before we adopted it from Kansas, and goes much further than it is necessary for a decision of the question before us, for in the case at bar the court had made no ruling on the demurrer to the evidence, or, if we take the other order, the dismissal was allowed before the case was submitted to the jury.
The next question raised is that the court erred in not sustaining the motion to quash the service as to Getzelman. Whatever merit there may have been in this motion, the defendant Getzelman has waived it by asking for affirmative relief in his answer, in which he alleges that he is the legal and equitable owner of the land; that the plaintiff has held possession thereof at all times since the beginning of the year 1911, and refused to deliver possession, and that the plaintiff unlawfully keeps him out of possession; that the rental value of the land is $500 per year; and prays judgment for the possession of the land and $1,000 damages. The defendant does not entitle this a cross-petition; but he sets up facts upon which he claims affirmative relief, and this is in effect a cross-petition. See Brown v Massey, 19 Okl. 482, 92 P. 246...
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