Thomas v. Dreibelbis, s. 37649
| Decision Date | 19 November 1957 |
| Docket Number | Nos. 37649,37650,s. 37649 |
| Citation | 319 P.2d 300 |
| Parties | George R. THOMAS, Plaintiff in Error, v. F. H. DREIBELBIS, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
A party defendant to an action may not, on motion to vacate a default judgment rendered against him on service by publication only, bring into the case by way of cross-petition in his motion an third party claiming some interest in the subject matter of the litigation as a party defendant and obtain affirmative relief against him without first obtaining an order of the court making him a party defendant.
Appeal from the Superior Court of Creek County; G. B. Coryell, Judge.
Separate actions, here consolidated, brought by G. W. Hellard against George W. Thomas, et al., to quiet title to certain lots located in Blocks 2 and 3, Burnett Addition to the City of Sapulpa, Oklahoma. Judgment by default in favor of plaintiff and against the defendants quieting title to the lots in him. Defendant, George R. Thomas, thereafter filed motions to vacate said judgments as against him and by way of cross-petition in his motions made F. H. Dreibelbis, appellee herein, who claims title to the lots in question acquired subsequent to the rendition of the judgment quieting title in plaintiff, a party defendant without first having obtained an order of the court making him a party and seeks to obtain affirmative relief against him. From an order of the court sustaining Dreibelbis' pleas to the jurisdiction and motions to quash service against him, George R. Thomas appeals. Affirmed.
R. E. Stephenson, Sapulpa, for plaintiff in error.
Don W. Walker, Sapulpa, for defendant in error.
On the 20th day of January, 1954, plaintiff, G. W. Hellard, brought two separate actions to quiet title to certain lots located in Blocks 2 and 3, Burnett Addition to the City of Sapulpa, Oklahoma. These cases in the lower court are numbered 4818 and 4819. In case No. 4818 plaintiff sought to quiet title to Lots 13 and 14 in Block Two in said above named addition. This action was brought against Willie Fish and C. Blaine, if living, and if they, or either of them, are deceased, their unknown heirs, * * *, and against other named defendants in said petition including unknown owners and holders of sewer warrants for sewer improvements in Sewer District No. 7 of Sapulpa, Oklahoma; P. J. Stephenson, County Treasurer of Creek County, Oklahoma; Board of County Commissioners of Creek County, Oklahoma; and the Oklahoma Tax Commission.
In case No. 4819 plaintiff sought to quiet title to Lots 23 and 24 in Block 3 in said Addition against Henry Downer, C. E. Kiefer, and against all other parties named as defendants in case No. 4818. In each of said petitions plaintiff alleged that he acquired title to the lots in question by quit claim deed executed and delivered to him by Oscar Carnes and Grace Carnes on November 2, 1953. He further alleged that all of the defendants named were claiming some right, title or interest in said property adverse to plaintiff, the exact nature, character and extent of which was to plaintiff unknown; that each and all of the claims of defendants were without right and were null and void but nevertheless constituted clouds upon plaintiff's title and rendered the same unmerchantable, and that plaintiff was entitled to have said respective claims cancelled and title quieted in him. Plaintiff alleged that heretofore the City of Sapulpa constructed a storm sewer upon and across a portion of said Burnett Addition and designated the portion thereof to be benefitted as 'Sewer District No. 7,' and assessed the cost thereof against the lots and blocks therein, pro rata, and issued and delivered to the contractor sewer warrants which purportedly evidenced a lien for the amount so assessed against each of such lots, including those of plaintiff; that said warrants are outstanding, but that plaintiff has been unable to ascertain the names and whereabouts of the owners and holders of the warrants upon the property herein involved, although he has made diligent inquiry at all known sources of information; that said warrants are null and void, and are a cloud upon plaintiff's title; therefore, plaintiff joins herein as defendants the unknown owners and holders of said warrants for sewer improvements in said District No. 7 in said city.
None of the parties mentioned in said petition filed any answer or pleadings in the case except defendant Oklahoma Tax Commission, which defendant filed a disclaimer in each case.
Plaintiff obtained service upon all of said defendants by publication.
None of the defendants appeared at the trial of the case, and the court entered judgment by default against each and all of them quieting title in plaintiff to the lots in question as against said defendants and each of them.
On the 3rd day of March, 1956, one George R. Thomas filed a motion to set aside and vacate the judgment in which said motion he alleged that he is a defendant designated in the petitions as an unknown holder of tax warrants in said Sewer District No. 7, and further alleged that plaintiff wrongfully procured said judgments against him on ervice by publication; that he did not know of the institution of said suit until long after the rendition of said judgment; that he was the owner of sewer warrants which created a lien upon the lots described in plaintiff's petitions; that he purchased same from W. C. Bonney, who was then the owner and holder of said warrants, after the decision and judgment of the Supreme Court in the appeal of Stephenson v. Bonney, 202 Okl. 549, 216 P.2d 315, affirming the judgment of the trial court ordering the sale of said lots to satisfy the payment of said warrants, and in which case the Supreme Court held said warrants valid.
He further alleged in the motion that the only allegation contained in plaintiff's petition as against him is that the warrants so held by the unknown warrant holders were null and void and a cloud on his title; that said allegation pleads a mere conclusion and therefore wholly insufficient to support a judgment by default; that the judgment rendered against him is null and void, and such invalidity appears upon the face of the judgment roll.
Thomas in his motions by way of cross-petition sought to make F. H. Dreibelbis a party defendant in the cases and alleged that after the rendition of the judgments quieting title in the plaintiff to the above described lots, plaintiff pretended to convey title to the lots in question to F. H. Dreibelbis by his deed of April 6, 1954; that said conveyance did not convey any title to the lots in question to him as against the warrant rights creating a sewer lien in his favor for the reason that said judgments were null and void, and the invalidity thereof appeared upon the face of the record; that Dreibelbis was chargeable with notice and knowledge of the invalidity of said judgments and was also charged with notice and knowledge of the proceeding had in the District Court of Creek County wherein judgment was rendered ordering the sale of said lots to satisfy the payment of tax warrants now owned and held by him, and that the Supreme Court of Oklahoma on appeal affirmed the judgment of the District Court of Creek County, so holding that Dreibelbis was therefore not a good faith purchaser of said lots and acquired no title thereto as against the lien claimed by him (Thomas) against the said lots by virtue of the issuance of said tax warrants.
Thomas further alleged in his motion that Dreibelbis was made a party defendant in these cases to cancel his deed of conveyance from the plaintiff as against the sale of said lots for payment for said sewer warrant above described and prayed judgment that his sewer lien be quieted against plaintiff and F. H. Dreibelbis and as against all persons claiming under and through them.
Upon the filing of said motions Thomas obtained service upon Dreibelbis by publication and notified plaintiff Hellard thereof by causing summons to be issued and served upon him in the manner provided for service of summons on defendants upon the commencement of a civil action.
Plaintiff in each of said cases entered a special appearance and...
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