Thomason v. Thompson

• Court: Oklahoma Supreme Court
• Writing for the Court: RAY, C. PER CURIAM.
• Citation: Thomason v. Thompson, 253 P. 99, 123 Okla. 218, 1926 OK 865 (Okla. 1926)
• Decision Date: 26 October 1926
• Docket Number: 16807.
• Parties: THOMASON v. THOMPSON et al.

253 P. 99

123 Okla. 218, 1926 OK 865

THOMASON v. THOMPSON et al.

No. 16807.

Supreme Court of Oklahoma

October 26, 1926

Withdrawn Corrected, and Refiled Feb. 8, 1927.

Syllabus by the Court.

All presumptions are in favor of the validity of judgments of courts of general jurisdiction.

On appeal by one seeking by motion to vacate a judgment upon the ground that it is void upon its face, where the case-made does not contain the pleadings of the opposing party, it will be presumed that issues were joined on all material allegations.

The object of partition proceedings is to enable those who own property as joint tenants, coparceners, or tenants in common to put an end to the tenancy so as to vest a sole estate in specific property, and contemplates an absolute severance of interests; and, in a suit between two parties, each claiming exclusive ownership of allotted lands as the sole heir of the deceased allottee, a judgment rendered on a compromise agreement is not a judgment partitioning the lands.

Commissioners' Opinion, Division No. 1.

Appeal from District Court, Creek County; Fred A. Speakman, Judge.

Action by Herbert Thompson by his guardian against Washie Riley and others, consolidated for trial with two other actions by Washie Riley by his guardian. From an adverse judgment, M. M Thomason, guardian of the estate of Washie Riley, appeals. Affirmed.

O. A Morton, of Tulsa, for plaintiff in error.

Blakeney & Ambrister, of Oklahoma City, and C. S. Walker and John Rogers, both of Tulsa, for defendants in error Rogers, Reed, and McMan Oil Co.

RAY, C.

Defendants in error have filed motion to dismiss the appeal upon the ground that the question has become moot, but we think the case may, and ought to be, disposed of on the merits.

This suit involves title to the allotted lands in Creek county of Louisa Scott, Agnes Scott, and Thomas Thompson, deceased. November 8, 1913, in case No. 3003 in the district court of Creek county, wherein Herbert Thompson, by his guardian, was plaintiff, and Washie Riley, plaintiff in error, and others defendants, judgment was entered in which it was determined that Herbert Thompson was the sole and only heir of the deceased allottees, and that the defendant Washie Riley had no valid claim, right, title, or interest whatsoever in any portion of the lands. Thereafter certain of the defendants, known as the Coker heirs, filed their petition to vacate the judgment upon the ground of fraud. Washie Riley, by his guardian, also filed petition to vacate the judgment. October 26, 1914, a journal entry of judgment was entered, which contained the finding that the guardians ad litem had attempted to settle and compromise the several claims of their respective wards, and that the judgment as against the minors was rendered according to agreement and was therefore of no effect, and concluded:

"It is therefore ordered, adjudged, and decreed that the judgment rendered herein on the 8th day of November, 1913, be and the same is hereby nullified, set aside, and held for naught, to the extent that evidence may be heard to determine the merit of defense, and that the defendants are directed to appear and present to the court such defense as they may have without regard to the agreement heretofore entered into between litigants, contemplating a settlement of the interests of the several litigants."

Washie Riley was not specifically mentioned. Thereafter Washie Riley filed an amendment to his petition to vacate the judgment of November 8, 1913, and prayed that a judgment be entered specifically declaring the original judgment to be void as to him, set aside and held for naught. Later Washie Riley, by his guardian, filed suit No. 4384, and still later filed another suit in the same court, No. 5329. Pleadings in these two cases are not incorporated in the record, but the parties are agreed that both actions were for the purpose of vacating the judgment of November 8, 1913, as to him. The three cases, Nos. 3003, 4384, and 5329, being consolidated, the following judgment was entered:

"These consolidated causes coming on regularly to be heard on this the 3d day of July, 1916; Herbert Thompson, a minor, being represented by J. R. Miller, his guardian ad litem, Washie Riley, a minor, being represented by John Caruthers, his guardian ad litem, Benjamin Coker, Daniel, or Seborn, Coker, Henry Coker and Eliza Coker, minors, being represented by W. V. Biddison, their attorney of record, and all other plaintiffs and defendants appearing by their respective attorneys of record. And upon motion of W. H. Gray, his cross-petition in cause No. 4384 and his petition in cause No. 5329 are hereby dismissed with prejudice; and the defendants Daniel Coker, Billie Coker, Betty Baker, formerly Coker, Lizzie Coker, Lucinda Coker, William Coker, Jennie Jacobs, Mary Tate, Deck Tate, Eliza Breeding, Mitchell Compier, Ida Harper, Alfred Harper, Benjamin Coker, having filed herein their disclaimer, and Washie Riley, a minor, defendant in cause No. 3003, plaintiff in cause No. 4384, and plaintiff in cause No. 5329, having filed his motion herein to dismiss his cross-petition in cause No. 3003, and his petitions in causes Nos. 4384 and 5329, and accompanying said motion has filed an order of the county court of Okmulgee County, Okl., which court has jurisdiction of the person and estate of said Washie Riley, authorizing the said Washie Riley, his guardian, John W. Freeman, and guardian ad litem, John Caruthers, to settle and compromise said consolidated causes, which order is in words and figures as follows, to wit:

'Pending in the County Court of Okmulgee County, Oklahoma.

In the Matter of the Estate of Washie Riley, a Minor, John W. Freeman, Guardian. No. 738.

Order.

This matter coming on to be heard on this the 1st day of July, 1916, upon the petition of John W. Freeman, guardian of Washie Riley, asking the court for permission to compromise and settle said litigation now pending in the district court of Creek county, Okl., involving the title to the allotments of Louisa Scott, Agnes Scott, and Thomas Thompson, the same being causes Nos. 3003 and 4384 on the docket of said court said allotments being specifically described in the pleadings, and for permission to dismiss said suits, and it appearing from the petition and the proof submitted in support thereof that the said Washie Riley as the result of said compromise and settlement of said litigation is to have delivered to him by the adverse claimants in said suit a good and perfect title to 109 1/2 acres of the Agnes Scott allotment, lying in McIntosh county, being a portion of the land in controversy in said suit, and for the purpose of extinguishing whatever title the said Washie Riley might have in the lands involved in said litigation he is to convey by proper probate proceedings his title thereto, and it further appearing that in addition to the said 109 1/2 acres of land, which is to be delivered to the said Washie Riley, he is to receive from the adverse claimants, after the payment of all expenses of every kind and character, including costs and attorney's fees, the sum of $1,000 in cash. From the consideration of all of which the court finds that the said settlement and compromise of said litigation is for the advantage of said Washie Riley and for his best interests.

It is therefore ordered and adjudged that the said John W. Freeman, guardian, is authorized and empowered to accept said offer of compromise and to dismiss said litigation pending in the district court of Creek county, and said settlement should in all things be approved and confirmed, and it is further ordered that the said John W. Freeman, guardian, take such further steps as may be necessary to fully effectuate said compromise and settle said litigation.

[Seal] Mark L. Bozarth, County Judge.'

The court being fully advised in the premises, after having heard the evidence and the argument of counsel, finds:

That defendants Coker heirs have no right, title, or interest in the property in controversy herein, and the title of the plaintiff Herbert Thompson is, as against all of the said defendants, hereby quieted.

The court further finds that the compromise settlement authorized and approved by the county court of Okmulgee county, Okl., and recommended by John Caruthers, guardian ad litem in this court, is in all respects fair and equitable, and is for the best interests of the minor Washie Riley, and said settlement and compromise is hereby confirmed.

The court further finds that Herbert Thompson, plaintiff in cause No. 3003, and defendant in causes No. 4384 and No. 5329, is the owner of the legal and equitable estate in and to the land in controversy, situate in Creek county, Okl., described as follows, to wit. * * *

The court further finds that the leasehold title of the McMan Oil Company, acquired through Herbert Thompson, the owner of the above-described land, is valid and subsisting, and said title is hereby ratified and confirmed.

The court further finds that Washie Riley is the owner of the legal and equitable estate of the following described premises being and situate

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