Yahola Oil Co. v. Causey
| Decision Date | 26 October 1937 |
| Docket Number | Case Number: 27517 |
| Citation | 1937 OK 620,72 P.2d 817,181 Okla. 129 |
| Parties | YAHOLA OIL CO. v. CAUSEY et al. |
| Court | Oklahoma Supreme Court |
¶0 1. JUDGMENT - Motion to Vacate on Ground of Defective Service of Summons Required to Be Filed Within Three Years Where Invalidity of Judgment Does not Appear on Judgment Roll.
A motion to vacate a judgment, on the ground that the service of summons on the moving defendant is void under the third subdivision of section 556, O. S. 1931, where the invalidity does not appear from an inspection of the judgment roll, must be filed within three years after the rendition of the judgment, otherwise the court is without jurisdiction to entertain the same under section 563. O. S. 1931.
2. SAME - Facts not Negatived by Record Presumed in Support of Judgment.
Unless the record affirmatively shows want of jurisdiction, every fact not negatived by the record is presumed in support of a judgment of a court of general jurisdiction.
3. SAME - Invalidity of Service of Summons Held not to Appear on Judgment Boll and Court Was Without Jurisdiction to Entertain Motion to Vacate Filed More Than Three Years After Rendition of judgment.
The defendant was referred to as "Yahola Oil Company, a Corporation," in the petition and journal entry of judgment, and as "Yahola Oil Company, a corp.," in the summons and return thereof; the summons was served on the Secretary of State; the judgment roll is silent as to whether said defendant was a foreign or domestic corporation and as to whether it had appointed a service agent, and as to the residence of the plaintiff; the journal entry recited that said defendant and other defendant had been "duly, legally and regularly served with summons in said action by personal service thereof, and that the summons, service and return as to said defendants are hereby approved by the court and declared valid." Held, the invalidity of the service does not appear on the judgment roll, and the court was without jurisdiction to entertain the motion to vacate the judgment filed more than three year after the rendition of the judgment, on the ground that the Yahola Oil Company is a common law trust, and not a foreign corporation, and was not served with summons.
Appeal from District Court, Lincoln County; Leroy G. Cooper, Judge.
Motion by the Yahola Oil Company, a common law trust, to vacate jndgment rendered in favor of Walter G. Causey dismissed, and movant appeals. Affirmed.
W.A. Chase and Courtland M. Feuquay, for plaintiff in error.
Erwin & Erwin, for defendants in error.
¶1 This is an appeal from an order overruling a motion to vacate a default judgment. The action arose as follows: The plaintiff, Walter G. Causey, filed this action to foreclose a real estate mortgage against a large number of defendants, one of them being Yahola Oil Company. The last-named defendant was referred to as "Yahola Oil Company, a corporation," both in the caption and in the body of the petition and journal entry of judgment. It was served in Oklahoma county by the delivery of a copy of the summons to the Secretary of State, and was referred to both in the summons and the retnrn as "Yahola Oil Company, a corp." The petition contained the allegation "that the defendants * * * Yahola Oil Company, a corporation, have or claim to have some interest in and to the real estate and premises aforesaid. * * *" Judgment of foreclosure was rendered on July 10, 1928, and it was therein recited: "that, the defendants * * * Yahola Oil Company, a corporation, * * * have been duly, legally and regularly served with summons in said action by personal service thereof and that the summons, service and return as to said defendants are hereby approved by the court and declared valid." The mortgaged premises were sold on July 30, 1929, pursuant to the judgment, and the sale was confirmed on August 8, 1929.
¶2 On September 13, 1935, Yahola Oil Company filed the motion in question to vacate the judgment of July 10, 1928, alleging that it is not a corporation but is a common law trust, and that its trust agreement was duly filed in the office of the county clerk of Lincoln county on May 4, 1929, and that the service of summons is void, there being no law authorizing the service of process upon the Secretary of State for a common law trust. A demurrer was filed to this motion, on the ground that the same did not state facts entitling the movants to any relief, and because it was barred by the statute of limitations. This demurrer was, by the court, sustained and the motion was dismissed. The court also overruled the motion for new trial filed by the movant. From both orders, the Yahola Oil Company has appealed.
¶3 It will be observed that the motion to vacate the judgment was filed more than seven years after the rendition of the judgment. This court is committed to the rule that where the invalidity of a judgment does not appear upon the judgment roll, and it is necessary to resort to extrinsic evidence to establish its invalidity, the court is without jurisdiction to entertain a motion to vacate the judgment filed more than three years after the rendition of the judgment, on the ground that there is no service on the moving defendant or that the service is void, under the third subdivision of section 556 and section 563, O. S. 1931. Pettis v. Johnston (1920) 78 Okla. 277, 190 P. 681; First National Bank of Kingfisher v. Darrough (1932) 162 Okla. 243, 19 P.2d 551; Vinson v. City of Oklahoma City (1937) 179 Okla. 590, 66 P.2d 933.
¶4 The defendant does not question this rule, but insists that the judgment is void on the face of the record for four different reasons, which we will discuss in their order:
¶5 1. Defendant first contends that the petition does not allege that it is a corporation and had the capacity to be sued. It cites Miller v. Pine Min. Co. (Idaho, 1892) 31 P. 803, in support of this contention. This case so held, but it has been overruled. See Hoebel v. Utah-Idaho Livestock Co. (Idaho, 1924) 227 P. 1049. Where the name of a party, whether plaintiff or defendant, imports corporate...
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