Cook v. Morrison ( 1950 )

WELCH, J.

(dissenting). I think the majority opinion goes too far and travels in error. I do not agree that the district court judgment pleaded and relied upon by plaintiff is void on its face. The opinion holds that it is void on its face and that therefore the county court decree of distribution is void.

The opinion recites that the transcript of proceedings in the county court where the will was admitted to probate was introduced in evidence in the district court. The journal entry of judgment in the district court names the numerous parties who appeared, apparently all who appeared in the county court, and while the journal entry does include the stipulation in full, it further discloses by specific statement that the court heard and considered evidence and specifically found that the proponent of the will and first codicil “sustained” them “by a preponderance of the evidence.” And the court made a specific finding of testamentary capacity and of due attestation and execution “in the manner provided by the statutes of the State of Oklahoma.” And the court made a further specific finding that the will had been “satisfactorily proven in the manner provided by law,” and that judgment should be rendered in accordance with the findings of the court. (The quotations are from the journal entry of judgment pleaded by plaintiff.)

Assuming that the plaintiffs here had rights to relief as against the stipulation, or against the stipulating parties, or against the district court judgment, there exists no right to have this court hold the district court judgment void on its face, when on its face, as disclosed by the copy pleaded, the judgment contains all recitals necessary to make it valid on its face. It is not contended that there is anything in the judgment roll to affect the validity of the judgment except what is shown on the face of the journal entry of judgment.

Rules applicable have been stated as follows:

“A judgment is void on its face when its invalidity is affirmatively disclosed by an inspection of the judgment roll, but it is ■ not void in legal sense for want of jurisdiction unless its invalidity appears on the face of the record.” Smith v. Page, 117 Okla. 223, 246 P. 217.

“The three jurisdictional elements entering into the validity of every judgment are: (1) jurisdiction of the parties, (2) jurisdiction of the subject- matter, and (3) judicial power to render the particular judgment, which means jurisdiction of the particular matter which the judgment professes to decide.” Title Guaranty & Surety Co., v. Foster, 84 Okla. 291, 203 P. 231.

If the judgment here considered discloses all those things on its face, then it is not void on its face.

Here, as shown by the judgment itself, the district court had jurisdiction (1) of the parties, who were the proponents of the will and codicils and the various contestants thereto who appeared in the county court, and also in the district court. It is not contended there was any deficiency in the giving of the required notice of probate of the will. The court had jurisdiction (2) of the subject-matter, that is, the appeal from the action of the county court in the matter of the last will and testament of the decedent; it not being contended that there was the slightest error in prosecuting the appeal from the county court to the district court. The court had jurisdiction (3) or judicial power to render the particular judgment, that is, to admit the will and codicil to probate as the last will and testament of the decedent, when it found testamentary capacity, and that the will had been “satisfactorily proven in the manner provided by law,” and that the will and first codicil had been sustained “by a proponderence of the evidence,” with the recitation that the court heard evidence and made those specific findings.