Stevens v. Dill

• Decision Date: 14 January 1930
• Docket Number: 15311.
• Citation: 285 P. 845,142 Okla. 138,1930 OK 37
• Parties: STEVENS v. DILL et al.
• Court: Oklahoma Supreme Court

285 P. 845

142 Okla. 138, 1930 OK 37

STEVENS v. DILL et al.

No. 15311.

Supreme Court of Oklahoma

January 14, 1930

Rehearing Denied March 11, 1930.

Syllabus by the Court.

The orders and decrees of probate courts, made in the course of proceedings to sell a minor ward's lands, may be attacked in an independent equitable proceeding for that purpose upon the ground that fraud, extraneous of the record, was practiced upon the court in the procuring of such orders and decrees, and a petition which alleges facts sufficient to constitute such fraud is good against a demurrer.

Where one, upon attaining his majority, in good faith commences a proceeding in a probate court to vacate an order of sale order of confirmation, and guardian's deed, whereby his land was sold by said court during his minority, and, upon appeal to the Supreme Court, his appeal is dismissed for the reason that the probate court never had jurisdiction to entertain that character of action, such cause of action as he may have had is saved from the bar of the statute of limitations by virtue of section 190, C. O. S. 1921, and may be brought as a new action within one year from the time the appeal was dismissed.

Paragraphs 1, 2, and 3 of the syllabus in W. H. Dill v. Dewey Stevens et al. (Okl. Sup., No. 16655) 284 P. 60, are adopted as additional paragraphs of syllabus of this case.

Commissioner's Opinion, Division No. 2.

Appeal from District Court, Okmulgee County; James Hepburn, Judge.

Action by Isparhecher Stevens against W. H. Dill and others. From an adverse judgment, plaintiff appeals.

Affirmed in part, and in part reversed and remanded, with directions.

Chas A. Dickson, R. E. Simpson, and A. L. Emery, all of Okmulgee for plaintiff in error.

E. T Noble, of Tulsa, and S. L. O'Bannon, of Okmulgee, for defendants in error.

JEFFREY C.

This is an action by Isparhecher Stevens, as plaintiff, against W. H. Dill, Walton Trust Company, W. O. Bassett, D. A. Dill, E. H. Moore, Independent Oil & Gas Company, Prairie Oil & Gas Company, and Prairie Pipe Line Company, as defendants, to have canceled and set aside a guardian's deed to certain lands described in the petition and all other conveyances based thereon. Demurrers to plaintiff's petition were sustained by the trial court, and plaintiff stood upon his petition. The petition was dismissed, and plaintiff has appealed. The case is a companion case to that of W. H. Dill v. Dewey Stevens et al. (No. 16655), decided by this court June 12, 1928, and reported in 284 P. 60. The petition alleges that the guardianship sale and the guardian's deed, issued pursuant thereto, are void because of certain defects and irregularities in the petition to sell the ward's land, defects and irregularities of the various notices and orders in the course of the sale proceedings, and for the further reason that the guardian and the purchaser at the sale conspired together to defeat competitive bidding at the sale, and did defeat competitive bidding by certain acts alleged in the petition, which amounted to fraud extraneous of the record. In these particulars, the petition is substantially the same as that in the case of Dewey Stevens. The same counsel appear, and file the same briefs, in the two cases, and the former case is controlling of this case on all questions therein raised pertaining to the sufficiency of the petition.

Plaintiff originally commenced a proceeding in the probate court of Okmulgee county, as a direct attack to have all proceedings, including guardian's deed, set aside. The probate court denied the relief asked. Plaintiff then appealed to the district court with like result, and then appealed to this court. This court affirmed the judgment of the district court, and ordered the action dismissed. Stevens v. Dill, 87 Okl. 135, 209 P. 439. See, also, In re Earler Jackson, 87 Okl. 112, 209 P. 430, 438. It was there held that the county courts of this state are without jurisdiction to vacate or set aside a decree of sale order of confirmation, or guardian's deed after the sale has been completed and a delivery of the guardian's deed executed pursuant to the order of confirmation. Within one year from the final disposition of the former appeal, plaintiff commenced this action in the district court of Okmulgee county, and attached to his petition as an exhibit the petition which was originally filed in the probate court. In this manner counsel contends that he is before this court both on direct and collateral attack of the judgment and orders of the probate court. This raises no question based on direct attack. The decision of this court on the former appeal settles that question, and it cannot be resurrected in this manner.

In the companion case it was held that the petition contained sufficient allegations of extrinsic fraud, which, if established by competent evidence, would entitle defendant to the relief prayed, and was good against a demurrer. The allegations of the two petitions with reference to fraud vary in no material respects, and in this particular, the demurrer should have been overruled.

One of the grounds of the demurrer was that the petition showed upon its face that it was barred by the statute of limitation, and counsel for defendant contend that the demurrer was properly sustained on this ground. The petition recites that plaintiff was three years old in September, 1898; that he served in the United States Army from August 2, 1918, until August 9, 1919. According to the petition, plaintiff became of age in ...