Southern Pine Lumber Co. v. Ward
| Decision Date | 07 September 1905 |
| Citation | 85 P. 459,16 Okla. 131,1905 OK 114 |
| Parties | SOUTHERN PINE LUMBER CO. et al. v. WARD et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan 11, 1906.
Syllabus by the Court.
Where counsel for plaintiff in error attaches to a case-made, after the same has been settled and signed by the court, a certificate of the clerk that the copies of documents therein contained from his office are true and correct, such certificate is not an amendment of the case-made, and can have no office with reference thereto, unless such case-made should at some time be used as a transcript.
Where it is shown by a case-made that "all of said evidence so introduced at said trial in said action and the objections made and exceptions saved, and the orders and rulings of the court are in words and figures as follows, to wit:"-such declaration is a sufficient statement that the record contains all of the evidence.
Where a judgment was rendered March 16, 1903, and a case-made was settled, signed, and filed in the Supreme Court, March 16 1904; the same is filed within one year under the rule fixed by the statute of Oklahoma, which provides that "in the computation of time the first day shall be excluded and the last included."
Where judgment was entered on the 16th day of March, 1903, and a motion for a new trial was made and filed the next day and considered and overruled April 4, 1903, at which time appellants were allowed 60 days in which to make and serve a case-made, the time so allowed commenced to run from the said 4th day of April.
In an appeal to the Supreme Court from a determination of a district court, persons not affected by or interested in the result need not be made parties.
Where a judgment is entered in the court below without exception, and a motion for a new trial is thereafter filed within three days, setting forth error in the proceeding by which judgment was obtained, the allegations of the motion for a new trial are a sufficient exception to bring before the court the questions of error raised by the motion, and if, upon a hearing of said motion, the grounds thereof are found to be well taken, the trial court or an appellate court, upon appeal, has jurisdiction to reverse or modify the judgment complained of.
A motion to dismiss a case-made, upon the ground that all the records are not therein contained, which were produced to the lower court, and examined and read by it, cannot be raised for the first time in the appellate court, and will not be considered, unless the court can determine from the record that evidence before the lower court has not been preserved in the record. A declaration in the case-made that it contains all the evidence, and a certificate of the lower court to the same effect, is sufficient, unless the contrary is manifest from the record itself.
Where an action has been brought to foreclose a trust deed, and a defendant therein pleads a superior title in himself under and by force of a prior judgment in the same court, and a codefendant answers, admitting the plaintiff's cause of action upon the trust deed, and shows that he was the party who executed the same, and owned the property, and still is the owner of the equity therein, subject to the plaintiff's right under said trust deed; and by way of cross-petition shows that his codefendant had acquired no title under and by force of such former judgment, for the reason that the court rendering such prior judgment did not have jurisdiction of the parties, such pleading is a direct and not a collateral, attack, upon such prior judgment; and where in such case the rights of the parties depend upon the validity or invalidity of such prior judgment, the question thus presented may be tried and determined, and the rights of the parties duly adjudicated.
The jurisdiction of any court exercising authority over any subject may be inquired into in every other court when the proceedings of the former are relied on and brought before the latter by a party claiming the benefit of such proceeding. Following Elliott v. Piersol, 26 U.S 329, 7 L.Ed. 164.
A judgment of a court of a sister state, shown to have been paid in full upon execution to the sheriff holding the same is fully and completely satisfied, and cannot thereafter be made the basis of an action in this territory.
Where an authorized person brings an action in the name of a party who has not consented thereto, such action is fictitious, and the court does not acquire jurisdiction of the plaintiff named, or of the subject-matter, and any judgment rendered in such proceedings is void.
Error from District Court, Logan County; before Justice Jno. H Burford.
Action by W. B. Ward and others against S.E. Pentecost, as trustee, and others. There was a judgment for plaintiffs, and defendants bring error. Affirmed.
This action was commenced in the district court of Logan county, by the defendant in error W. B. Ward, May 5, 1900, against S.E. Pentecost, trustee, and others, praying for foreclosure of a trust deed and sale of the property described in said trust deed to satisfy debt in the sum of $11,082.50. The petition avers: The said deed of trust was executed by Grigsby Bros., a copartnership of Marion county, Tex., composed of D. J. and G. M. Grigsby, to S.E. Pentecost, of Guthrie, trustee, to secure an indebtedness of said partnership in the sum of $5,000 to the National Bank of Jefferson, at Jefferson, Tex. That the note and trust deed had been sold and assigned by the National Bank of Jefferson, cestui que trust, to the plaintiff W. B. Ward, before maturity. That the same was due and wholly unpaid, and that the sum of $11,082.50 for principal, interest, and penalty, was due thereon at the time of bringing the action. That the defendant Southern Pine Lumber Company, a corporation, the Southern Pine Lumber Company, a partnership, J. W. McNeal, Charles Griswold, Hattie P. De Bois, J. D. Elder, Wm. H. Dungan, G. W. R. Chinn, and Mrs. G. W. R. Chinn claim to have some interest in the property included in said trust deed; but that they were mere trespassers upon the property, and had no legal or equitable claim thereto; and upon information and belief plaintiff averred that the title or claim of the last above-named defendants was based upon a sale of said property at an execution sale of the same by virtue of an execution issued out of the district court of Logan county, Okl., on a judgment of said court, in cause No. 1,524 therein, in favor of the American Exchange Bank, a corporation, of St. Louis, Mo., against T. L. L. Temple and Benjamin Whitaker, partners, as the Southern Pine Lumber Company, the Southern Pine Lumber Company, a corporation of Arkansas, D. J. Grigsby, G. M. Grigsby, T. L. L. Temple, partners, under the firm name and style of the Union Lumber Mills Company, which judgment bore date of March 2, 1895, sale being made thereon July 18, 1895. That neither the plaintiff nor the National Bank of Jefferson, the cestui que trust, or S.E. Pentecost, trustee, were made parties to said action No. 1,524, and that neither the plaintiff nor defendant in said case No. 1,524, had or has any interest whatever in the property sold to satisfy the judgment, and that this plaintiff at the time said suit was filed, and at all times since, has held the legal title to said property by virtue of said trust deed, which was of record in the several counties in which said property was situated. That the sheriff of the several counties, who sold said property on said judgment in said action No. 1,524, together with the plaintiff and defendants in said cause, and the purchasers at said sale each had actual and constructive notice of the trust deed herein proceeded upon, and that plaintiff's title to said land was an unbroken chain. The plaintiff then avers that all proceedings had in said cause, No. 1,524, were null and void for want of notice to S.E. Pentecost, trustee, who was a resident of Guthrie, Okl., the cestui que trust named, or this plaintiff, and because no service was ever had, made or procured, upon or against any of the defendants in said action for the reason that the attempted service by publication was void.
To the petition of plaintiff, the defendant the Southern Pine Lumber Company, T. L. L. Temple, G. W. R. Chinn, and Mrs. G. W. R Chinn, filed joint answer, admitting that Grigsby Bros., became indebted to the National Bank of Jefferson, Tex., and that a trust deed was executed to S.E. Pentecost, trustee, to secure such indebtedness, and that such trust deed covering the property involved in this action has never been discharged, but deny that the note of Grigsby Bros. to the National Bank of Jefferson, or the trust deed executed to S.E. Pentecost, as trustee was ever sold by the National Bank of Jefferson, or its trustee, for a valuable consideration to the plaintiff W. B. Ward, and they further deny that a sale of said instruments was ever legally made and completed either before or after the maturity of said note, and deny the transfer in good faith of the said deed of trust for a valuable consideration, and deny any interest of the plaintiff Ward, either legal or equitable, in either said note or trust deed herein sought to be foreclosed, and deny that there is due and unpaid on said note the sum of $5,000, or any other sum, and deny that there is any amount or claim due to the plaintiff or any other person from Grigsby Bros. by reason of the execution of said note to the National Bank of Jefferson, Tex., or on account of the deed of trust executed to S.E. Pentecost, trustee. And for affirmative answer to the plaintiff's petition, the defendants set out that said note has been fully satisfied by payments to parties holding the same as legal representatives of the bank of...
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