State ex rel. Dept. of Highways v. O'Dea, 47872
| Decision Date | 12 October 1976 |
| Docket Number | No. 47872,47872 |
| Citation | 1976 OK 133,555 P.2d 587 |
| Court | Oklahoma Supreme Court |
| Parties | STATE of Oklahoma ex rel. DEPARTMENT OF HIGHWAYS of the State of Oklahoma, Appellant, v. O'DEA et al., Appellees. |
Thomas N. Keltner, Chief, Legal Div., Oklahoma City, State of Oklahoma ex rel. Department of Highways of The State of Oklahoma, for appellant.
Vester Songer, James Bounds, Hugo, for appellees.
The question presented for decision is: does the district court have authority in a condemnation proceeding to order dismissal with or without prejudice after the state has taken possession and the award of commissioners has been distributed to the owners? The trial court of Choctaw County has not attempted to dismiss the state's action with prejudice in the instant case but without prejudice. However, we do not feel this fact to be decisive of any of the issues herein. We hold that under these facts a trial court may not dismiss the state's action with or without prejudice.
The fact situation involved is not in question. The state (Dept. of Highways) commenced condemnation proceedings in June 1969 against the several defendants who held an interest in real property situated in Choctaw County, Oklahoma; service was obtained upon all defendants; commissioners (appraisers) were appointed without objection. The commissioners made their report to the court in July 1969 fixing value. Thereafter the state deposited this amount and in proper time the state filed exceptions to the commissioners' report and a written demand for jury trial. The court ordered disbursement of the funds to the interested defendants, including Ruth O'Dea, M. L. Castleberry and others.
Subsequent to July 1970, both O'Dea and Castleberry died. In July 1972, the state filed a motion and notice of revivor reference M. L. Castleberry and in January 1974, one of the defendants suggested the death of Ruth O'Dea.
We find no official record that the case was set for trial on or about July 24, 1974, but there is an untitled holographic statement in the record, stating that the cause was stricken or a mistrial declared on that date.
Also, although the record is not clear, the proceeding appears to have been dismissed at one time and apparently reinstated by verbal orders sometime prior to September of 1974. No order or minute exists as to such proceeding but on September 13, 1974, an order was issued attempting to place all actions of the court in perspective and from this we know that the trial court had ordered the state to proceed with the appointment of administrators or executors for the deceased parties. Instead of a proceeding to appoint representative parties for the heirs of the decedents, the state filed a brief, stating the O'Dea estate was being probated and asking that the state be allowed to recast its pleadings. This order was overruled by the court on September 13, 1974 and the trial court did then dismiss the state's action without prejudice, giving as a reason the failure of the state to respond to the order requiring a revivor of substitution of parties and for a failure to prosecute diligently under rule #9, 12 O.S.1971, Ch. 2 App. 1 Condemnation proceedings are special proceedings neither strictly tort nor subject to all rules of law or equity. Graham v. City of Duncan, 354 P.2d 458 (Okl.1960). We do not say condemnation proceedings can never be dismissed; we say when an award is entered, taken down and distributed and possession granted (the facts of this case), there cannot ordinarily be a dismissal with or without prejudice for failure to prosecute under rule 9.
Under Oklahoma law, title does not vest in the condemnor 'until compensation awarded by the commissioners (has been) paid to the land-owner.' Oklahoma Turnpike Authority v. Dye, 208 Okl. 396, 256 P.2d 438 (1953).
In State ex rel. State Highway Commission v. Burks, 79 N.M. 373, 443 P.2d 866 (1968) the court held, rules pertaining to mandatory dismissal of actions are inapplicable to eminent domain proceedings after an order of entry has been made as to some part of the property being condemned. It is true in that case special proceedings such as eminent domain were apparently excepted from the general rules covering civil procedure. The court concluded at p. 867:
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