State ex rel. Mcmurray v. Dist. Court of Hughes Cnty.

• Decision Date: 10 February 1925
• Docket Number: Case Number: 15269,Case Number: 15903
• Citation: 108 Okla. 32,235 P. 234,1925 OK 116
• Parties: STATE ex rel. McMURRAY v. DISTRICT COURT OF HUGHES COUNTY et al. and STATE ex rel. PRYOR v. MELTON, Judge.
• Court: Oklahoma Supreme Court

1925 OK 116

235 P. 234

108 Okla. 32

STATE ex rel. McMURRAY v. DISTRICT COURT OF HUGHES COUNTY et al. and STATE ex rel. PRYOR v. MELTON, Judge.

Case Number: 15269

Case Number: 15903

Supreme Court of Oklahoma

Decided: February 10, 1925

Actions for Writ of Prohibition. No. 15269, State ex rel. J. F. McMurray against District Court of Hughes County, and George C. Crump, District Judge; and No. 15903, State ex rel. W. W. Pryor against Harve L. Melton, Judge of District Court of Pittsburg County. Writ prayed in No. 15269 granted; writ prayed in No. 15903 denied.

Syllabus

¶0 1. Courts--Conflicting Jurisdiction of District Court--Right of First Court Acquiring Jurisdiction to Control Subject-matter.

Where an action has been filed in a district court of this state for the purpose of having adjudged ownership in certain property, or a lien thereon, and process is served on the defendants, the property, the title or lien on which is thus sought to be adjudged, cannot be taken from the jurisdiction of such court by another court of co-ordinate jurisdiction seeking to seize same by a writ of garnishment in favor of a judgment creditor in said latter court. The first court thus acquiring jurisdiction, on final decree, would have the right to the control of the property, to direct its delivery, either to court or to the party adjudged entitled thereto, and another court on a judgment rendered subsequent to the filing of the first suit cannot deprive the first court of the power to make its final judgment effective by taking from its jurisdiction and possibly its necessary control the subject-matter in litigation.

2. Same--Prohibition--Preventing Conflict in Jurisdiction.

In the instant cases it is held, that the judge of the district court of Hughes county had no jurisdiction to enter a judgment in favor of the plaintiff in the action in said court, subjecting the property in the possession of the American National Bank of McAlester to the satisfaction of its judgment, and a writ of prohibition against said court should be granted.

Arnote, McCain & Emery, for respondent.

Guy L. Andrews, for American National Bank.

Porter & Fuller, Swift & Adams, and Pryor, Stokes & Carver, for Geo. M. Swift.

BRANSON, V. C. J.

¶1 Herein are involved two actions, invoking the original jurisdiction of this court, to issue writs of prohibition. The first one filed in this court is No. 15269, entitled "State of Oklahoma ex rel. J. F. McMurray, Relator, v. District Court of Hughes County, Oklahoma, and George Crump, Judge of the District Court of Hughes County, Okla." The second is No. 15903. entitled "State of Oklahoma ex rel. W. W. Pryor, Relator, v. Harve L. Melton, Judge of the District Court of Pittsburg County, Okla."

¶2 They involve a conflict of jurisdiction between courts of co-ordinate functions, the one of Hughes county, the other of Pittsburg county. In each case the relator seeks a writ of prohibition, staying further proceedings. In the one case, where J. F. McMurray is seeking relief as to certain property, and in the other case, W. W. Pryor is seeking to subject the identical property to a judgment against one Swift in his favor, rendered in Hughes county after the other suit was filed and injunction issued. On the 31st day of October, 1924, this court stayed all further proceedings by the district court of Pittsburg county in the case there, its jurisdiction as to which is here drawn in question, and all further proceedings in the district court of Hughes county, in the case there, its jurisdiction as to which is here drawn in question, until further order of this court.

¶3 J. F. McMurray, relator in No. 15269, had on May 31, 1923, filed suit in the district court of Pittsburg county, and by his amended or supplemental petition in said court pleaded that he was entitled to $ 5,400 out of a fund, special in its nature, then held by the American National Bank of McAlester, Okla. He pleaded that his interest in this fund arose in brief as follows:

¶4 That prior thereto, and for a number of years, there had been pending certain litigation in the United States Court for the Eastern District of Oklahoma, and the courts of appeal from the judgments thereof, in which, among others, Saber Jackson and Martha Jackson made claim, as heirs, to a certain interest in the land, and moneys arising from the large production of oil from an allotment made to a certain Indian by name Barney Thlocco. This litigation had its origin in a case filed, years prior to its termination, by the United States government, entitled 'The United States v. Bessie Wildcat and Others." Pending this long litigation, the federal court had appointed receivers of the property, and into their hands the funds were placed.

¶5 Among other lawyers representing claimants to shares in this estate was one George M. Swift, who as attorney for said Saber or Martha Jackson, or both of them, had, either under actual or supposed authority from his clients, associated with him J. F. McMurray, under an oral contract subsequently evidenced by memorandum signed by George M. Swift, to the effect that he, McMurray, should receive 10 per cent. of whatever amount was allowed Swift for services on behalf of his said alleged clients. On the final adjudication of the rights of the contending parties, the government of the United States, having failed to obtain the relief by cancellation of the allotment which it sought, and the interests of the defendants as cross-petitioners, one against the other, having been determined, the said United States Court directed that an amount equivalent to $ 54,000 be turned over by the receivers for "George M. Swift and his associates." This sum was for attorney fees. This sum was turned to the American National Bank, a codefendant with George M. Swift, in the suit of McMurray in Pittsburg county. At the time this litigation arose, the amount remaining thereof in said bank existed in the form of a Liberty Bond in denomination $ 10,000, which was by the request in writing made by George M. Swift sold by the American National Bank, and the proceeds thereof were disposed of, with the exception of $ 6,000, which the said bank retained in the form of a cashier's check. Seeking to assert his interest under his contract with Swift, Swift failing to permit voluntarily to be turned over to him his alleged share, McMurray pleaded a special lien or ownership in the remainder of said fund or property in the possession of the said bank, and sought by his petition to have the trial court of Pittsburg county adjudge and decree that he, McMurray, and not George M. Swift, had such lien or ownership therein, to the amount of $ 5,400. The effect of his pleading was that the bank merely held this fund in trust for the real owner thereof, and that its ownership to the amount of $ 5,400 was vested in him. J. F. McMurray, and praying a final judgment and decree which would effectuate the reduction of said fund to his, McMurray's, possession, as the true owner thereof. Both the bank and George M. Swift were parties to this suit, service being had on each. Pending the determination of the issues raised by the petition of McMurray, the district court of Pittsburg county enjoined the bank from making any disposition of the fund or property above referred to. The defendant Swift in said Pittsburg county suit not having his position sustained by the district court of said county preliminary to the trial of the main issues raised by plaintiff's pleading, etc., relator in said cause No. 15269 contends that he, Swift, and W. W. Pryor collusively obtained a judgment in the district court of Hughes county in favor of Pryor for $ 7,500. McMurray contends the following facts disclosed by the transcript filed in this court are the ear marks of the collusiveness:

¶6 On the 20th of September, 1923, W. W. Pryor filed in the district court of Hughes county a petition against George M. Swift. On that date Swift was present in said county, though that is not his residence, the pleadings filed by him showing his residence to be in Okmulgee county, and summons was served on him in said county of Hughes on that date. Pryor's petition was unverified. It pleaded that the defendant, George M. Swift, owed him $ 7,500 for alleged services in the same case McMurray had been employed in, and that a certain fund had been ordered paid to "Swift and his associates," and, further, that it had been agreed between the said Pryor and the said Swift that plaintiff's services were reasonably worth $ 10,000, $ 7,500 of which remained unpaid. This petition was signed solely by the attorneys for the plaintiff, W. W. Pryor. On the 25th day of September, 1923, the said Swift filed answer in said cause, admitting the allegations contained in Pryor's petition. On the 28th day of September, 1923, a judgment was entered in said cause, in favor of the said Pryor, against Swift, for the sum prayed. On the same date, to wit, September 28, 1923, execution was issued out of said district court of Hughes county to the sheriff of Pittsburg county, Okla., which said execution was returned nulla bona on the same date by the sheriff of Pittsburg county and on the same date, to wit, the 28th of September, 1923, affidavit for garnishment was filed by the said Pryor in the district court of Hughes county, and on the same date, to wit, September 28, 1923, a summons in garnishment was issued by the district court of Hughes county, directed to the American National Bank of McAlester, Okla., and served by the sheriff of Pittsburg county, Okla., on the American National Bank on said date of issue.

¶7 However persuasive this apparently concerted action may be, we deem it unnecessary to express an opinion as to the collusiveness of same. The record discloses a situation which, when familiar to any one, he can draw his personal conclusion as to the collusiveness of the judgment. To make comment thereon does not aid us in the conclusion we reach.

¶8 On ...