Finch v. Smith , 166 Okla. 68 ( 1933 )

C.M. Smith, defendant in error, hereinafter referred to as plaintiff, filed a motion to dismiss the attempted appeal of Robert Finch and Madalyn Finch, plaintiffs in error, hereinafter referred to as defendants.

It is necessary to notice the state of the record to properly understand the ruling upon this motion.

Plaintiff commenced an action in the district court of Okmulgee county, Okla., on January 9, 1932, to rescind and cancel a contract for the sale of real estate and for other relief. The defendants filed a demurrer to the petition of the plaintiff, but the demurrer was overruled. On March 25, 1932, defendants filed an answer and cross-petition, the allegations of which are immaterial to the consideration of this matter. Motions to join other parties and to strike were filed and passed upon. Whereupon, on June 7, 1932, an amended answer and cross-petition was filed by the defendants. The plaintiff filed a motion to make more definite and certain which was sustained in certain particulars. Whereupon, on July 16, 1932, an amendment to the amended answer was filed. The plaintiff then filed a general and special demurrer. After several continuances of the hearing on this demurrer, the demurrer was heard by the court on August 28, 1932, and according to a recital in the case-made of the clerk's minutes, and an unsigned order appearing in the case-made, the demurrer was sustained. We cannot say from the record whether the defendants were represented at this hearing or not. On November 16, 1932, the defendants being in default as to any pleadings and being in default in person, judgment was rendered in favor of the plaintiff, according to a journal entry of judgment appearing in the record. November 30, 1932, defendants filed a motion to vacate, which motion, omitting the caption and formal parts, reads as follows:

"Come now the defendants herein and move the court to vacate, set aside, and hold for naught the certain order entered herein on August 29, 1932, the same purporting to sustain the pleading of the plaintiff denominated general and special demurrer to the defendants' answer and cross-petition, and amendment thereto. As grounds for their motion, the defendants state:

"That the said order as shown on the face of the record herein is erroneous and evidently made inadvertently by the court; that the said order if permitted to stand has prevented and will prevent the defendants from setting up and proving the legitimate defenses which they have to the petition of the plaintiff.

"The defendants further pray the court to vacate the order made and entered on November 16, 1932, inasmuch as said order is necessarily based upon the order made on August 29, 1932, and is therefore erroneous and void.

"That the said matters constitute unavoidable casualty and misfortune which prevent the defendants from having a fair trial and deny to them their day in court."

December 8, 1932, this motion to vacate, and the response thereto, were heard, the testimony of a witness was taken and upon consideration of the matter the motion was overruled as appears from the recital of the clerk's minutes in the record, but no order to that effect is shown in the record.

On December 9, 1932, the defendants filed a motion for a new trial. On December 20, 1932, according to the recital of the minutes of the clerk, the motion for a new trial was overruled and time to appeal and the amount of supersedeas were fixed. No order to this effect is in the record. The petition in error and case-made were filed in this court on June 19, 1933.

The fourth ground of the motion to dismiss is as follows:

"Because the petition in error and case-made upon this appeal were filed in the Supreme Court of Oklahoma, and office of the clerk thereof, more than six months after the final order of the trial court dated August 29, 1932, sustaining the general and special demurrer of defendant in error to the answer, cross-petition, counterclaim and amendments thereto of plaintiffs in error, and more than six months after the judgment made and entered November 16, 1932, attempted to be appealed from herein by plaintiffs in error, though within six months from the refusal or order of the trial court made December 20, 1932, denying a new trial to the plaintiffs in error, defendants below."

Upon a consideration of this record, we are of the opinion that the opinion of this court in Barfield Petroleum Co. v. Pickering Lumber Co., 137 Okla. 151, 280 P. 819, governs this case, and the motion to dismiss should be sustained.

The grounds of the motion to vacate are those contained in the third and seventh subdivisions of section 556, O. S. 1931, which have to do with acts occurring at the trial of the case, both of which may be summed up in the last phrase of the third subdivision, "* * * irregularity in obtaining a judgment or order."

The language of the case of Barfield Petroleum Co. v. Pickering Lumber Co., supra, and the cases upon which it is based, makes it perfectly clear that it is unnecessary to file a motion for a new trial in order to review the ruling of the court upon a motion to vacate based upon the third and seventh subdivisions of section 556, supra.

The appeal is therefore dismissed.

All the Justices concur.