Sizemore v. Dill

• Decision Date: 06 November 1923
• Docket Number: 12280.
• Citation: 220 P. 352,93 Okla. 176,1923 OK 938
• Parties: SIZEMORE ET AL. v. DILL.
• Court: Oklahoma Supreme Court

220 P. 352

93 Okla. 176, 1923 OK 938

SIZEMORE ET AL. v. DILL.

No. 12280.

Supreme Court of Oklahoma

November 6, 1923

Syllabus by the Court.

An action cannot be dismissed after the final submission of the case to the court or jury, and after judgment has been rendered, except by consent of all parties interested.

A district court, acting upon principles of manifest justice may, in cases not provided for by the Code of Civil Procedure, permit one not a party to the suit, to intervene either before or after judgment, for the protection or advancement of some right, with reference to the subject-matter of the litigation which he holds. Gibson v. Ferrell, 77 Kan. 454, 94 P. 783.

There should be no disposition on the part of trial courts to in any wise prevent or avoid appeals from their orders and judgments, and whenever, through inadvertence, appealable order made or judgments rendered, without notice to all parties concerned, and without giving an opportunity to all parties aggrieved to except and prepare the record for an appeal, and motion to vacate is filed within reasonable time after notice of such action, same should be granted, to the end that the judgment may be rendered in open court and with due notice to all parties concerned.

Commissioners' Opinion, Division No. 3.

Appeal from District Court, Okfuskee County; Lucien B. Wright Judge.

Suit by E. B. Sizemore against W. H. Dill, in which Willard Johnson intervened. From the judgment rendered, the plaintiff and the intervener appeal. Certain orders and judgment reversed, and remanded with instructions.

J. B Patterson, of Okemah, and Ames, Chambers, Lowe & Richardson, of Oklahoma City, for plaintiffs in error.

B. B. Blakeney and Hubert Ambrister, both of Oklahoma City, for defendant in error.

JONES C.

This case was instituted by E. D. Sizemore, plaintiff below, and one of the parties who appeared as plaintiff in error versus W. H. Dill, defendant below and defendant in error, on the 12th day of March, 1919, to remove cloud from title.

Plaintiff alleges in his petition that he was the owner in fee simple and in possession of 160 acres of land in Okfuskee county, state of Oklahoma. The defendant in his answer admits that plaintiff is in possession of the land in controversy, but avers that he is the equitable owner and entitled to the south one-half of said tract of land which is described as being the N.E. 1/4 of Sec. 6, Tp. 11 N., R. 10 E., I. M.; and defendant asks that his title to the south one-half of said tract be quieted. To which answer the plaintiff replies and specifically denies the matter and facts set up in defendant's answer, and denies that the title to said land was ever held in trust for said defendant.

The pleadings are rather voluminous, detailing at great length all the facts leading up to this controversy, and set forth various conveyances which determine the title to this property, but we think, for the purpose of this opinion, the statement heretofore made is sufficient. The records disclosed as heretofore stated that the case was filed on March 12, 1919, and on November 7th and 8th, 1919, the matter was heard before the court without the intervention of a jury. The court seems to have taken the matter under advisement, and suggested that he would hear oral arguments on the part of counsel at some future date. The case was set for a day in June, 1920, at which time Mr. Patterson, attorney for the plaintiff appeared, but, no one appearing for the defendant, the matter was postponed and, so far as the records disclose, indefinitely; at some stage of the proceedings Messrs. Ames, Chambers, Lowe, and Richardson of Oklahoma City were employed in the case and on the 23d day of July, 1920, they received through the mail notice that judgment had been rendered in favor of the defendant, Dill, on the 16th day of July, 1920. They immediately communicated by phone with the clerk of the court of Okfuskee county to ascertain the facts, and the moving party, Willard Johnston, who is one of the plaintiffs in error, asserts that the clerk informed the attorneys that his record did not show that any judgment had been rendered in the case and on the 2d day of August, 1920, the following record was made by the clerk:

"Court having been opened in due form this 16th day of July, 1920, the following, among other proceedings were had, to wit: 2647, E. B. Sizemore v. W. H. Dill, judgment for defendant as per journal entry. (The above minute record given to the clerk on Aug. 2, 1920, by W. H. Dill, an attorney, saying that this order was made the court July 12, 1920.) Court takes recess to July 24, 1920."

Plaintiff in error files the following motion, giving notice of same, which was set for hearing on the 6th day of September, 1920, at 9 o'clock a. m.; the motion is as follows:

"(1) That said judgment was not rendered by the court in open court on the 17th day of July, 1920.

(2) That the said judgment was not entered or the clerk notified of the rendition of said judgment until some time after the 17th day of July, 1920, and until after the 23d day of July, 1920.

(3) That no notice of the time of the rendition of said judgment was ever served upon the plaintiff or his attorney, nor did they or either of them receive any notice whatsoever that said judgment would be rendered on the said 16th day of July, 1920, or any other date.

(4) That the said plaintiff was not notified and knew nothing of the rendition of said judgment until long after the same had been rendered, and until after the time of filing a motion for new trial had expired, by reason of which said plaintiff has been prevented from perfecting an appeal to the Supreme Court of the state of Oklahoma, and by reason of which it has become impossible for said plaintiff to make a case-made."

The motion, however, seems not to have been passed on until November 20, 1920, and in the meantime, September 9, 1920, E. D. Sizemore, the plaintiff, filed a motion to dismiss the case, and, on the hearing of plaintiffs in error's motion November 20, the court overruled the motion and the records disclosed that his reason for so doing was that E. D. Sizemore had notified his attorneys Ames, Chambers, Lowe, Richardson, and J. B. Patterson not to appear on his behalf in said litigation--that he had employed Hugh Nolen; that Nolen, acting for Sizemore as his attorney on the 9th day of September, 1920, filed a motion to dismiss, and it was ordered that by reason of the dismissal motion for a new trial be overruled, exceptions allowed, and the application of Willard Johnston to intervene and be made a party plaintiff was likewise overruled, exceptions were taken, and proper statutory steps taken to appeal the cause to the Supreme Court.

Johnson in the meantime had filed the motion of intervention setting up the facts in his pleadings that he was the real party in interest and that Sizemore had instituted and prosecuted the suit at the instance of Johnson, and under an agreement whereby Johnson becomes the real party in interest, and attached said agreement to his application or motion of intervention, and offered to make proof showing his interest and showing himself to be the real party in interest, and that the dismissal of the case by Sizemore after the purported judgment had been rendered and after he (Sizemore) had filed motion for a new trial was in fraud of his rights.

No transcript of the evidence was ever made or procured which was introduced on the hearing of November 7 and 8, 1919, and the evidence upon which the court based the judgment bearing date of July 16, 1920.

Plaintiff in error set forth five different assignments of error, as follows:

"First. The court erred in overruling the motion of plaintiff to set aside and vacate pretended judgment rendered in said cause on July 16, 1920.

Second. The court erred in refusing to permit Willard Johnston to be made a party to the action.

Third. The court erred in holding that the pretended dismissal of said cause by E. D. Sizemore on September 9 1920, precluded the court from passing on a motion to vacate the judgment.

Fourth. That the judgment or decision of the court is not sustained by sufficient evidence and is contrary to law.

Fifth. The court erred in refusing to allow E. D. Sizemore and Willard Johnston, or either of them, to

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