Southeastern, Inc. v. Doty, 44515

• Citation: 481 P.2d 144
• Decision Date: 16 February 1971
• Docket Number: No. 44515,44515
• Parties: SOUTHEASTERN, INC., Petitioner, v. Honorable Laton L. DOTY, Judge of the District Court of Washington County, Oklahoma, Respondent.
• Court: Oklahoma Supreme Court

Page 144

481 P.2d 144

SOUTHEASTERN, INC., Petitioner, v. Honorable Laton L. DOTY, Judge of the District Court of

Washington County, Oklahoma, Respondent.

No. 44515.

Supreme Court of Oklahoma.

Feb. 16, 1971.

Syllabus by the Court

1. Where within 30 days after a trial court has rendered a judgment a party files a motion requesting the court to vacate the judgment, or the trial court of its own initiative issues an order to show cause why the judgment should not be vacated, the filing of such motion or order within 30 days invokes the power of the court under the provisions of 12 O.S.Supp.1969, Section 1031.1, to act after the expiration of the 30 day period, and the action of the court taken after the expiration of the 30 day period has the same legal effect as if its rulings had been made during the 30 day period.

2. Where the power of a trial court is invoked under the provosions of 12 O.S.Supp.1969, Section 1031.1, to vacate a judgment, the assumption of jurisdiction of the same cause of action by the trial court in another county does not divest the first court of continuing jurisdiction.

3. Where an appeal is filed in this court under the provisions of 12 O.S.Supp.1970, Section 990, and the trial court from which the appeal is taken exercises its jurisdiction under the provisions of 12 O.S.Supp.1969, Section 1031.1, this court will, absent substantial reasons, stay the appeal upon notice by a party to the clerk of this court pending final disposition of the case in the trial court conducted under the authority of Section 1031.1, and until a second petition in error embracing the new matters is filed in the same case in this court.

4. Where there is an intolerable conflict because trial courts in different counties of this state are exercising concurrent jurisdiction over the same cause of action, this court may, on application, assume jurisdiction and determine which of the courts should exercise its jurisdiction, but will not prohibit the court first acquiring and exercising its jurisdiction absent substantial reasons.

Original action by Southeastern, Inc., Petitioner, requesting this court to assume original jurisdiction and prohibit Laton L. Doty, Judge of the District Court of Washington County, Respondent, from exercising jurisdiction and proceeding further in the trial of Southeastern, Inc. v. Myers Bros. Building Contractors, Inc., et al., No. 19756. Jurisdiction assumed--writ denied with directions.

Donovan, Freese & Downing, Tulsa, for petitioner.

Sanders & McElroy, Tulsa, for respondent.

JACKSON, Justice.

This is an original action wherein we are requested to assume jurisdiction and prohibit the District Court in Washington County and Judge Doty, on jurisdictional grounds, from proceeding further in Southeastern, Inc. v. Myers Bros. Building Contractors, Inc., et al., No. 19756. We assume jurisdiction because new procedural questions are involved, but deny the writ.

In 1965 Southeastern, Inc., filed an action in Washington County against Myers Bros. Building Contractors, Inc., (one defendant) to collect 5 or 6 promissory notes and foreclose 5 or 6 real estate mortgages on separate residential properties which were under construction. An acting receiver was appointed to complete some of the buildings.

In October, 1967, Southeastern amended its petition to include six additional defendants. These defendants were added on the apparent theory that a deficiency judgment on the notes might be collected from them. The new defendants filed an amended answer and cross-petition requesting affirmative relief.

On September 15, 1970, the case came on for trial and opening statements were made. After a noon recess the parties stipulated that plaintiff would dismiss its amended petition and defendants would dismiss their amended answer and crosspetition, all without prejudice to re-filing. The court rendered judgment according to the stipulation of the parties.

On September 25, 1970, Southeastern filed an action in Tulsa County against the 6 defendants who had been included by amended petition in the Washington court praying for the same relief they had requested in their amended petition in Washington County.

On September 30, 1970, three of the defendants who had been sued in Tulsa County, joined by Myers Bros. Building Contractors, Inc., filed a motion in Washington County requesting the court to set aside the dismissals made in that court on September 15, 1970. On the same day, without notice, Judge Doty vacated his judgment of dismissal on the ground it was contrary to law and set the case for trial on the pleadings as amended in his court.

It is contended that Judge Doty in Washington County had no jurisdiction to reinstate the case after the District Court in Tulsa had acquired jurisdiction. In this connection our attention is invited to Simpkins v. Parsons, 50 Okl. 786, 151 P. 588, and Manuel v. Kidd, 126 Okl. 71, 258 P. 732.

In Simpkins and Manuel the courts under statutory authority had transferred the actions from one county to another. In Simpkins we recognized the statutory authority of the court to transfer the case to another county and its authority to vacate the order within term time. However, we also held that the court's term time authority to vacate the transfer must be exercised before the court to which the transfer was made had acquired jurisdiction. That conclusion was reaffirmed in Manuel.

In Simpkins the controlling consideration was whether the trial court should follow court made 'term time law' or obey the purpose and intent of statutory law. The statute, Sec. 544 of Snyder's Compiled Laws of 1909, provided that 'As soon as the papers and records are received in any cause or procedure (by the clerk of the court to which the case is transferred), as herein provided, the same shall be entered upon the docket of such court and process issued therein as in other cases originally brought in such court.' That statute plainly implied that the transferring court lost jurisdiction when the second court acquired jurisdiction by the filing of the papers and records received from the transferring court.

Terms of court have been abolished. 20 O.S.Supp.1969, Sec. 95. However, during the same session the Legislature enacted (new) 12 O.S.Supp.1969, Sec. 1031.1, which provides:

'Within thirty (30) days after the...