Ziska v. Avey

• Decision Date: 12 March 1912
• Docket Number: Case Number: 1334
• Parties: ZISKA v. AVEY et al.
• Court: Oklahoma Supreme Court

1912 OK 241

122 P. 722

36 Okla. 405

ZISKA v. AVEY et al.

Case Number: 1334

Supreme Court of Oklahoma

Decided: March 12, 1912

Syllabus

¶0 1. APPEARANCE--General Appearance--Motion to Vacate Judgment. Where a party against whom a judgment is rendered files a motion to vacate the judgment upon the ground that the court has no jurisdiction of the defendant, and said motion is based upon nonjurisdictional as well as jurisdictional grounds, held, that thereby said party enters a general appearance as though said appearance had been made at the trial.

2. SAME. In an action to quiet title brought in the district court, where the defendant is served by publication, and judgment is entered according to the prayer of the petition, and where the defendant, constructively served, afterwards appears and files a motion in the original action to vacate and set aside the judgment rendered, and which motion is based upon both jurisdictional and nonjurisdictional grounds, it will be deemed and held that a general appearance is entered, and that any defects in the service are waived, and the judgment rendered thereon validated.

3. QUIETING TITLE-- Pleading--Determination of Adverse Claim. In an action brought under section 4787, Wilson's Rev. & Ann. St. 1903 (section 6121, Comp. Laws 1909), a petition which embodies the essential averments of the statute is sufficient. A petition, therefore, which alleges that the plaintiffs are the owners in fee and in the actual peaceable possession of the property in controversy, describing it, and that the defendant claims an interest therein adverse to plaintiffs, and that the claim of the defendant is a cloud upon the plaintiffs' title thereto, sufficiently states a cause of action brought under said statute.

Error from District Court, Oklahoma County; George W. Clark, Judge.

An action by Newton Avey and another against Frank R. Ziska and others. Judgment for plaintiffs, and defendant Ziska brings error. Affirmed.

On August 8, 1906, Newton Avey and Mary E. Overholser brought suit in the district court of Oklahoma county against Frank R. Ziska and the unknown heirs and devisees of Frank R. Ziska, deceased. The petition charged that they were the owners in fee simple and in actual possession of lot 19, block 34, in the city of Oklahoma City, and that the defendants claim an interest therein adverse to the plaintiffs. The petition then recites the manner in which plaintiffs acquired title, which was through a guardian's sale; that, said Frank R. Ziska having been insane, one W. M. Smith was appointed his guardian, and as such, through orders of the county court, procured the sale of said lot, which sale it is charged was in all respects regular; and that, on account of said purchase from said guardian, the plaintiffs acquired the right, title, and interest of said Frank R. Ziska in and to said premises. The petition further charges that the claims made by defendants constituted a cloud upon plaintiffs' title to said lot, and asked that the defendant, Ziska, be required to set forth the nature of his claim to said premises, and that the court decree the plaintiffs' title in and to said premises to be a valid and perfect one, and that said defendants be adjudged to have no interest or estate in and to said premises, etc. On the same day that said petition was filed, affidavit for service by publication was made. Publication notice thereupon issued, which was afterwards published and sworn return thereof filed in the office of the district clerk, and on the 23d day of October following, judgment was rendered for, and title quieted in, said plaintiffs. Thereafter, and on the 26th day of August, 1908, the defendant, Ziska, filed in the office of the district clerk in said original case a motion to vacate the judgment theretofore rendered, wherein it was charged that said judgment was void because rendered in the absence of said defendant, and that there had been no service upon or appearance by him in said action, and for the further reason that the affidavit for publication was insufficient in substance and form, and that the service by publication was void, both because of the insufficient affidavit, and the insufficient notice by publication. Plaintiff further charged that the petition on which said judgment was based did not state a cause of action against defendant, Ziska. Thereafter, and on the 20th day of October following, Ziska obtained leave of court to withdraw said motion, and thereafter, on the 30th day of November, 1908, filed a second motion to vacate said judgment, in which, among other things, he stated that he was the owner of the lot in controversy, and that the judgment theretofore rendered against him was a cloud on his title, and that said judgment was void for the following reasons: First, that the petition was insufficient to support a judgment, and that, therefore, the court was without jurisdiction in the premises, and the judgment rendered therein was void; second, that the judgment was obtained upon service by publication in the absence of defendant, who was at the time a nonresident of the Territory of Oklahoma, and that the affidavit was insufficient in law to confer jurisdiction upon the court to cite the defendant by publication. Numerous other attacks on the sufficiency of the affidavit were charged, and, in addition thereto, it was further alleged that the notice for publication was insufficient, and not as required by law, and that, therefore, the judgment was void. Other objections to the publication notice, the manner of its publication, and return thereof were made. The motion concluded by asking that the judgment be vacated, and that defendant be permitted to file an answer in said action. Thereafter, and on the 9th day of April, 1909, said motion was overruled, and the case is brought here for review.

S. A. Horton, for plaintiff in error.

Shartel, Keaton & Wells, Everest, Smith & Campbell, and John H. Wright, for defendant in error Newton Avey.

SHARP, C.

¶1 The motion to vacate the judgment of October 23, 1906, may be construed under two heads: First, that the court did not have jurisdiction of the defendant; second, that the petition did not state a cause of action.

¶2 We shall discuss the second proposition first. In Rogers v. McCord-Collins Merc. Co., 19 Okla. 115, 91 P. 864, it was urged that the judgment was rendered without testimony; also, that the petition was not subscribed by the plaintiff in error, and for this reason the court erred in rendering judgment; also, that service was made on Thanksgiving Day. The first and second of these objections were not matters that could be considered under the head of a special appearance. They were matters that did not pertain to the jurisdiction of the person, and defendant, having presented them to the court, was deemed to have entered a general appearance to the action, and, having entered a general appearance, all matters affecting the service would be waived, and the court held to have jurisdiction of the defendant. The court in the syllabus said:

"Where a motion is made in which questions are raised which go to the jurisdiction of the court over the parties, and in which questions are also raised which cannot be raised by special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment."

¶3 In Trugeon v. Gallamore, 28 Okla. 73, 117 P. 797, no judgment was asked in the petition against defendant Riley, and no service ever had been made and no appearance entered. However, after judgment the defendants filed a motion for a new trial, charging that the judgment was not sustained by sufficient evidence, was contrary to law, and was excessive. The court held that this was a general appearance, and referred to the rule that where defendant makes a motion for a new trial in a cause, after judgment, based on nonjurisdictional grounds, he thereby enters a general appearance.

¶4 In Lokkabaugh v. Epperson, 28 Okla. 472, 114 P. 738, a bill was brought to review an order of the court below, overruling a motion to set aside a default judgment rendered upon service by publication as to one of defendants, and to permit defendants to file an objection and defend the action. The defendant thus cited came into court and filed a special appearance, and motion to quash the service by publication, and an order was made striking the motion from the files, and thereafter judgment by default was rendered against said defendant and the title quieted. Subsequently said defendant filed a motion to vacate and set aside the judgment, and for permission to answer and defend the action, which was denied. The trial court held that the appearance entered was general, and that all irregularities in the issuance and service of summons by publication were thereby waived, and cited in support thereof Rogers v. McCord-Collins Merc. Co., supra, and numerous Kansas cases. The court there said that while the question of the sufficiency of the petition was not properly before the court, not having been urged in the petition in error, yet, "while some of the allegations are of a general nature, and might be vulnerable to a motion to make more definite and certain, they are sufficient to sustain the judgment," and affirmed the decision of the trial court.

¶5 In Welch v. Ladd, 29 Okla. 93, 116 P. 573, judgment had been rendered against defendants in the Southern district of the Indian Territory, instead of the Central district, where the defendants resided. The action was one for specific performance. The court held from the face of the judgment that the same was void, and conveyed no title and would be so held, but for the fact that it further appeared from the face...