Turner v. First Nat. Bank & Trust Co. of Oklahoma City

• Decision Date: 21 November 1939
• Docket Number: 28531.
• Parties: TURNER v. FIRST NAT. BANK & TRUST CO. OF OKLAHOMA CITY et al.
• Court: Oklahoma Supreme Court

97 P.2d 894

186 Okla. 403, 1939 OK 513

TURNER v. FIRST NAT. BANK & TRUST CO. OF OKLAHOMA CITY et al.

No. 28531.

Supreme Court of Oklahoma

November 21, 1939

Rehearing Denied Jan. 9, 1940.

Application for Leave to File Second Petition for Rehearing Denied Jan 23, 1940.

Syllabus by the Court.

1. A proceeding by petition to vacate a judgment under Sections 556 and 558, O.S. 1931, 12 Okl.St.Ann. §§ 1031, 1033 held a "civil action" to the extent that parties testifying therein are subject to the prohibition contained in Section 271, O.S.1931, 12 Okl.St.Ann. § 384 against testimony concerning communications with a deceased person.

2. Evidence in proceeding to vacate divorce decree, brought by wife after death of husband, held insufficient to show fraud or coercion practiced by husband preventing contest by wife.

Appeal from District Court, Oklahoma County; Sam Hooker, Judge.

Suit by Mila Turner against the First National Bank & Trust Company of Oklahoma City, a national banking association, and others, to set aside, for fraud and coercion, a decree of divorce rendered against plaintiff. Judgment for defendants, and plaintiff appeals.

Affirmed.

Tomerlin, Chandler, Shelton & Fowler, John Howard Payne, John W. Swinford, and Edgar S. Vaught, Jr., all of Oklahoma City, for plaintiff in error.

Busby, Harrell & Trice, of Ada, and Twyford & Smith, of Oklahoma City, for defendants in error.

HURST Justice.

Mila Turner, as plaintiff, on April 28, 1937, filed her petition in the District Court of Oklahoma County, seeking to vacate and set aside, for fraud and coercion, a decree of divorce rendered against her on May 12, 1936, in favor of her husband in a suit filed by him on April 15, 1936. Turner died May 25, 1936. Plaintiff made his children by a former wife, and the administrator of his estate, parties defendant. The petition was filed in the divorce case under authority of sections 556 and 558, O.S.1931, 12 Okl.St.Ann. §§ 1031, 1033. Upon trial to the court, a demurrer to plaintiff's evidence was sustained and she appeals.

1. Plaintiff complains of the trial court's refusal to permit her to testify to communications or transactions between her and Turner which would have a bearing on the issues involved. She asserts that this is not an action, as defined by Sec. 9, O.S.1931, 12 Okl.St.Ann. § 4, but is a special proceeding, and therefore she was not incompetent to so testify, for the reason that Sec. 271, O.S.1931, 12 Okl.St.Ann. § 384, is applicable only to parties to civil actions, and for the further reason that the interests of the estate of the deceased were not directly, but only incidentally, affected, there being no claim asserted against it. While this court has held, in Grosshart v. McNeal, 1923, 95 Okl. 102, 218 P. 329, and other subsequent decisions, that Sec. 271 may not be extended to exclude witnesses not within its express prohibition, we think that the nature of the case, and the parties involved, was such that the trial court correctly applied the rule. In Dardenne v. Daniels, 1924, 101 Okl. 201, 225 P. 152; Burton v. Swanson, 1930, 142 Okl. 134, 285 P. 839, and Stout v. Derr, 1935, 171 Okl. 132, 42 P.2d 136, this court held a proceeding by petition to vacate a judgment on the ground of fraud to be a civil action within the meaning of Sec. 201, O.S.1931, 12 Okl.St.Ann. § 267 authorizing a demurrer to the petition on the ground that another action is pending. We likewise think it a civil action within the meaning of the term as used in Sec. 271, supra, and that therefore the witness was incompetent to testify concerning communications or transactions with the deceased, as against the administrator and heirs of deceased. It was directed against the administrator and heirs for the purpose of forcing the inclusion of the witness as an heir of the estate, and materially affected the interests of all. It was initiated with the same formalities as, and arises to the dignity of, a civil action. Dardenne v. Daniels, supra. And while it does not seek to reduce a claim to judgment, and thus affect the estate, it does seek to reduce the interest of the heirs. Therefore the testimony was properly excluded.

2. We next consider whether the judgment is sustained by the evidence. From the plaintiff's pleadings and evidence it appears that she and defendant had been divorced twice previous to the decree of May 12, 1936, and that on obtaining each previous divorce (the last being May 20, 1935) she obtained a property division, the property received by her under the last decree being very substantial. Turner was a man of considerable means. Shortly after the divorce of May 20, 1935, they resumed cohabitation, effecting a common law marriage, which was terminated by the decree of May 12, 1936. When he filed suit he took up his residence at a hotel.

The petition to vacate was based on threats of violence made by Turner if plaintiff refused to sign a waiver of summons and entry of appearance, which the evidence shows she did sign on May 12, 1936, after repeated consultations with attorneys of her own...