Vinson v. Okla. City

• Decision Date: 02 February 1937
• Docket Number: Case Number: 23403
• Citation: 66 P.2d 933,179 Okla. 590,1937 OK 86
• Parties: VINSON v. OKLAHOMA CITY
• Court: Oklahoma Supreme Court

1937 OK 86

66 P.2d 933

179 Okla. 590

VINSON v. OKLAHOMA CITY

Case Number: 23403

Supreme Court of Oklahoma

Decided: February 2, 1937

Syllabus

¶0 1. PROCESS - Filing of Affidavit of Mailing Copy of Petition and Publication Notice not Required.

There is no provision of law requiring the filing of an affidavit of mailing a copy of a petition and publication notice, and compliance with the provisions of section 186, O. S. 1931, may be shown either by the filing of an affidavit or by proof to the trial court.

2. SAME - JUDGMENT - Attack on Judgment Based on Service by Publication and Re, citing Service Was Proper - Statutes Controlling.

Where service is obtained by publication, and the journal entry of judgment recites that service is proper, the judgment is not void on its face, and an attack on the ground that there was no mailing of copy of the petition and publication notice or affidavit filed excusing same, as required by section 186, O. S. 1931, can only be made under the third subdivision of section 556, O. S. 1931, and must be made within three years after the rendition of the judgment as provided in section 563, O. S. 1931.

3. NUISANCE - Jurisdiction of District Court to Abate Public Nuisance and Charge Expense to Property.

The district courts of this state have jurisdiction to abate public nuisances and to charge the expense thereof to the property where the owner refuses to abate the nuisance.

4. EQUITY - Retention of Jurisdiction to Administer Complete Relief.

A court of equity which obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter, and to avoid multiplicity of suit.

5. CONSTITUTIONAL LAW - "Due Process of Law."

By "due process of law" is meant an orderly proceeding adapted to the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to be heard, with full power to grant relief.

6. PROCESS - Necessity for Service of Notice of Filing Claim in Nature of Cross-Petition Long After Time to Plead Expired.

Where the defendant files a claim in the nature of a cross-petition, long after the time to plead has expired, in which he seeks to establish a lien against the property of his codefendants, notice thereof must be served on the parties against whom affirmative relief is sought before the court acquires jurisdiction to hear the same.

7. EMINENT DOMAIN - Owner Permitting City to Take and Improve Property for Park Purposes Estopped to Maintain Trespass or Ejectment but Entitled to Damages.

Where a city has taken possession of property for park purposes, without the consent of the owner, and he stands by and permits the city to spend large sums of money in making improvements thereon, he is estopped from maintaining either trespass or ejectment and is entitled to damages for the value of the land at the time of the appropriation.

Appeal from District Court, Oklahoma County; Orel Busby, Judge.

Action by City of Oklahoma City against E.H. Vinson and others to revive a judgment. Upon judgment for plaintiff, defendant E.H. Vinson appeals. Reversed.

Edwards & Robinson, S.A. Horton, and Nowlin, Spielman & Thomas, for plaintiff in error.

Harlan T. Deupree, Acting Municipal Counselor, A.P. Van Meter, Asst. Municipal Counselor, and W.H. Brown, for defendant in error.

HURST, J.

¶1 This action was originally commenced in June, 1917, by the county attorney of Oklahoma county against the Oklahoma Brick Company, the city of Oklahoma City, E.H. Vinson, and other lot owners in a ten-acre tract of land located in Dittmer Heights addition to Oklahoma City, to abate a public nuisance. The defendant Vinson was the owner of about three acres of this tract which was creating the nuisance. Service was obtained upon him by publication, and he made no appearance in the action. The court, on July 15, 1918, rendered judgment ordering the defendants to abate the nuisance. The court further found that the land was suitable for park purposes, and the judgment provided that if the brick company would convey its interest in the property to the city within 15 days, it would be absolved from all further liability. It was also provided that if the other defendants did not abate the nuisance within 15 days, the mayor and the city commissioners, as the board of health of said city, were ordered and directed to abate it, and all expenses incurred thereby would be charged as costs in the case. The court decreed as follows:

"And the court hereby retains jurisdiction of this case for the purpose of charging said costs and making such orders and judgments as may be necessary in enforcing the collection of said costs and in enforcing the judgment so rendered as a lien against the premises upon which the work may be done to abate said nuisance."

¶2 No appeal was taken from the judgment and no attempt was made to abate the nuisance within the 15 days allowed, but during that period of time the brick company deeded all of its interest in the property to the city, and thereby was relieved from liability.

¶3 During the years 1920 and 1921, the city abated the nuisance and has used the property as a public park ever since said date. On February 9, 1925, the city filed with the court clerk its report showing what it had expended in abating the nuisance, and prayed that the report be approved. No notice was served on Vinson. On February 27, 1925, the court rendered judgment approving the same and found that the city had expended $40,000 in doing the work and taxed this sum as a lien on the three acres of land belonging to Vinson and the other lot owners. The judgment further provided that the city be given its option to either sell said property or file a new suit entering additional parties, if desired, so that the sale of said premises might be fully enforced and title to said premises fully cleared. Nothing further was done, but on February 26, 1931, the city commenced this action against E.H. Vinson and the other lot owners to revive the judgment of February 27, 1925. All of the defendants, except Vinson, either defaulted or filed disclaimers. Vinson answered contending that the judgment was void. Judgment was rendered on August 27, 1931, in favor of plaintiff reviving the judgment of February 27, 1925, giving the city a lien upon Vinson's lots for the sum of $40,000 and quieting title, subject to said lien. It was further provided that if the judgment was not immediately paid, an order of sale should issue commanding the sheriff to sell the property and apply the proceeds to the payment of the costs and judgment of $40,000 with interest. Vinson filed motion for new trial, which was overruled, and has appealed to this court on the ground that both the judgment of 1918, which adjudged the property to be a nuisance, and the judgment of 1925, giving the city a lien for the money expended in abating said nuisance, were null and void.

¶4 It is first urged that the judgment of 1918 is void because the plaintiff failed to file an affidavit showing the mailing of copies of the petition and publication notice to Vinson. We do not agree with this contention. The failure to mail copies of the petition and notice does not appear on the face of the record. On the contrary, the judgment affirmatively negatives such failure by this recital:

"That as to all the above-named defendants who have not answered or pleaded or appeared in said cause, they have been served with summons or served with summons by publication, the court finds as to each and all of said named defendants so not appearing, the service upon said defendants is in all respects as required by law and that the said defendants so not appearing are now in default for failure to plead or answer or otherwise appear in said cause."

¶5 This court has held that the failure to file an affidavit proving the mailing of copies of the petition and publication notice as required by section 186, O. S. 1931, does not affect the validity of the judgment rendered thereon. There is no provision of law requiring the filing of such an affidavit. Compliance with this section of the statute may be shown either by filing an affidavit or by proof to the trial court. Young v. Campbell (1932) 160 Okla. 265, 16 P.2d 65. It is true that the mailing of the petition and notice must actually be made, unless an affidavit is filed showing that the residence or place of business of the defendant cannot be ascertained. But...