Ux v. Mcclendon

• Decision Date: 12 June 1923
• Docket Number: Case Number: 11585
• Citation: 220 P. 949,1923 OK 356,94 Okla. 33
• Parties: KIRK er ux. v. McCLENDON.
• Court: Oklahoma Supreme Court

1923 OK 356

220 P. 949

94 Okla. 33

KIRK er ux. v. McCLENDON.

Case Number: 11585

Supreme Court of Oklahoma

Decided: June 12, 1923

Syllabus

¶0 1. Insane Persons--Recovery -- Restoration to Rights--Statutes.

According to section 9102, Comp. Stat. 1921: "Whenever any person shall have been discharged from the hospital for the insane on account of his recovery from insanity, such discharge shall restore such person to all his political, civil, and other rights the same as if he had never been insane."

2. Same.

The proceeding for the restoration of an insane person to capacity, under section 1452, Comp. Star. 1921, is not applicable to the case of one confined in an insane asylum without having been put under guardianship.

3. Same.

Where a person has been discharged from a hospital for the insane on account of his recovery, under a law existing at the time of said discharge, it is immaterial whether said law was repealed by the Legislature by an act approved at a later date.

4. Same--Order of Commitment to Asylum by Board of Insanity--Effect.

An order of a board of insanity, adjudging one to be insane, has no bearing upon his legal mental status; the effect of such an order is to admit one to the state hospital for treatment, as the members of such board do not act as judicial officers, but as a special board, clothed with a special power only, and the fact that the county judge is a member of said board does not affect the matter as he acts as any other member of the board, and not as a country judge or as a county court.

5. Appearance--Filing Demurrer as Waiver of Defects in Process.

Defendants in an action, by filing a demurrer to the petition, waive any defect in the issuance of service of summons.

6. Appeal and Error--Harmless Error--Evidence.

Where a party to an action introduced his sworn petition, showing that he was confined in a hospital for the insane and was discharged therefrom as cured, the introduction of a sworn copy of the records, showing the same state of facts, over the objection of the party, does not, in any way, prejudice the rights of the party.

Commissioners' Opinion, Division No. 5.

Error from District Court. Atoka County; J. H. Linebaugh, Judge.

Action by J. W. McClendon against Robert A. Kirk and Malinda Kirk. Judgment for plaintiff, and defendants bring error. Affirmed.

I. L. Cook and Maxey & Cook, for plaintiffs in error.

J. G. Rails, for defendant in error.

THOMPSON, C.

¶1 Defendant in error commenced this action in the district court of Atoka county, Okla. by filing his petition on the 13th day of November, 1917, paying for judgment on the promissory note executed on the 20th day of June, 1914, by plaintiffs in error to the defendant in error and for a foreclosure of a real estate mortgage given by plaintiffs in error as security for the payment of said note. Summons was issued and returned, showing personal service upon Malinda Kirk and service upon R. A. Kirk "by leaving a copy of the within summons duly certified with Malinda Kirk for R. A. Kirk, a person over the age of fifteen years old, on November 15, 1917." On November 30, 1917, plaintiffs in error filed their demurrer, which was overruled by the trial court on July 1, 1918, and plaintiffs in error given 20 days thereafter to file answer. Plaintiffs in error failed to file any answer in the cause, and on the 13th day of June, 1919 the cause came on for trial on its regular setting. The defendant in error appeared and announced ready; plaintiffs in error did not appear or plead, and were adjudged in default, and judgment was rendered in favor of defendant in error for the amount of his note and for the foreclosure of the mortgage and sale of property ordered and for a personal judgment against plaintiffs in error for a deficiency judgment in case the property did not sell for the amount of the judgment. Execution and order of sale were issued: sale made and sheriff made a return of order on the 2nd day of February, 1920. On February 17, 1920, plaintiffs in error filed their objection to confirmation of sale and rendition of deficiency judgment for the reasons, in substance, that the journal entry was not submitted to the plaintiffs in error, or their attorney, and that the attorneys for the parties had orally agreed that no deficiency judgment be rendered against the plaintiffs in error; that the note sued on was given for purchase price of the land described in the petition and the mortgage, which was sold to them by the defendant in error, and that the title had failed, and that defendant in error had no title to same; that the note and mortgage were obtained through fraud and misrepresentations and that they had been induced to sign the note and mortgage by false and fraudulent representations made to them by defendant in error, that said land had only brought the stun of $ 100 at said sale, which was an inadequate consideration; that the lands had been purchased by the defendant in error at the sale; that suit had been filed against them for the recovery of said land by James and Henry Roberts, and that said suit was then pending in the court, and prayed that the return of sale should not be confirmed, and that no deficiency judgment be rendered against them for the remainder of the indebtedness over and above the amount said lands brought at the sale, and asked that the judgment be vacated, set aside and held for naught, and the court, on the 23rd day of February, 1920, overruled the objections and exceptions of plaintiffs in error and entered his order confirming said sale. On the 20th day of February, 1920, plaintiffs in error filed their petition to vacate and set aside said judgment, and on March 25, 1920, filed their first amended petition to vacate the judgment, upon the grounds, in substance, that defendant in error obtained a judgment against them upon his promissory note in the sum og $ 1,234.82, principal, interest, and attorney fees, and for foreclosure of mortgage upon certain real estate described; that defendant in error sold the lands described in the mortgage to plaintiffs in error and represented to them that he had a good and valid title to said land; would furnish abstract of title to the same before he would require payment therefor from them and that they had executed said note and mortgage with that understanding; that they had demanded abstract of title and on investigation learned that defendant in error had no title to the land, and that there was suit pending against him to divest him of his pretended title, and that defendant in error had made false and fraudulent representations to, them in regard to the same: that at the time the judgment was rendered, plaintiff in error R. A. Kirk was incompetent to appear for himself, for the reason that he had been adjudged insane, and had been committed to the Eastern Hospital for the Insane, at Vinita, Okla., on the 17th day of October, 1916, by the county board, and that he had thereby been deprived of his civil rights, and was incompetent to contract, sue, or be sued: that at the time of filing this suit plaintiff in error was still incompetent, and no legal service was ever had on him, nor could he be legally served with summons, and that he had no legal guardian appointed after he was adjudged insane; that at the time of the rendition of the judgment said R. A. Kirk was incompetent, and never had his civil rights restored, and no guardian ad litera was appointed for said R. A. Kirk; that R. A. Kirk was the only real party at interest; that said land had sold at sheriff's sale for $ 100, and a deficiency judgment rendered against plaintiffs in error for $ 1,134.82; that I. L. Cook, attorney for plaintiff in error R. A. Kirk, had a conversation with J. G. Ralls, attorney for defendant in error, in which he had told J. G. Ralls that no defense would be made to the foreclosure of the mortgage, but that if a deficiency judgment should be sought, he would take steps to defend said suit for plaintiff in error R. A. Kirk, and that J. G. Ralls stated that a deficiency judgment would not be worth anything anyway, and made further statements in said conversation that led said Cook to believe that a deficiency judgment would not be sought or asked; that, relying upon said statements, said Cook took no steps to defend same, and that Ralls, notwithstanding said understanding, took judgment for the deficiency, and the lands sold to defendant in error for the sum of $ 100, which amount was inadequate; that said sale was based upon a void judgment, obtained through fraud, misrepresentations and mistake; that plaintiffs in error had a good and meritorious defense, and set out an answer in the original petition to vacate, as an exhibit, which was made part of the amended petition.

¶2 On the 27th of March, 1920, the cause came on for hearing upon the petition to vacate, and, upon the presentation of oral and documentary evidence, the court rendered judgment, denying plaintiffs in error's petition to vacate.

¶3 The substance of the evidence, as it affects this appeal, is the testimony of R. A. Kirk, who testified that he was an inmate of the asylum at Vinita for three months; that he received no certificate of discharge; that he did not put his deed of record, because he got no abstract, which was to be furnished before he paid anything. When asked if he knew the value of the land. he testified that he did not know that he did, but he knew what he would value it at, and while it is true his attorney offered to show that the land was worth $ 50 an acre, there is no objection to the offer and no ruling by the court, nor exception saved in the record, and the attorney seemed to have abandoned it. He further testified that his attorney told him that they would not ask for any judgment against them and that was the agreement. On cross-examination he testified that he had been transacting business ever since he returned from the asylum; that he was attending to the...