Ward v. Thompson

Plaintiff has assigned five specifications of error in her petition in error, but by reason of an entire failure to observe the requirements of Rule 26 of this court in the preparation of her brief it is difficult to determine just what propositions are relied on for reversal. As nearly as can be determined from her brief, plaintiff's contentions may be all embraced and considered under the single proposition that the trial court erred in sustaining the demurrer of defendants to plaintiff's petition.

At the first step in the consideration of this proposition it is necessary to determine whether plaintiff's action constitutes a collateral or a direct attack on the sale proceedings of the county court of McCurtain county. In the case of Griffin v. Culp, 68 Okla. 310, 174 P. 495, this court has clearly defined collateral and direct attacks, and these definitions have been approved and followed in subsequent cases. There this court said:

"A 'collateral attack' on a judicial proceeding is an attempt to avoid, defeat or evade it, or deny its force and effect, in some incidental proceeding not provided by law for the express purpose of attacking it.

"A 'direct attack' on a judicial proceeding is an attempt to avoid or correct it in some manner provided by law."

That the instant action is not an attack on the sale proceeding in any manner provided by law is too clear for argument. It is an independent action brought against strangers to the original proceedings who have acquired rights thereunder in reliance on their regularity because the same were not questioned or assailed in any "manner provided by law." Therefore, this action is not a direct attack, and, being collateral, must clearly come within the recognized exception to the rule of collateral attack in order to be maintainable.

In Brown v. Trent, 36 Okla. 239, 128 P. 895, it was announced:

"An attack upon a judgment for fraud in its procurement is a direct attack, over which courts of equity take jurisdiction, and no well considered case can be found in which such jurisdiction is denied."

In Sockey et al. v. Winstock et al., 43 Okla. 758,144 P. 372, it is pointed out that the above language is a correct statement and application of the well recognized exception to the rule of collateral attack, but is not correct as a statement of what constitutes a direct attack. The exception is thus stated in the Winstock Case:

"Where the judgment is void by reason of fraud practiced in obtaining it, and for like reasons, a collateral attack may be made upon the judgment by a proceeding in equity, notwithstanding the court had jurisdiction of the proceedings resulting in the judgment attacked."

The fraud which vitiates a judgment and which will authorize a court of equity to intervene to vacate it is fraud extraneous of the record by which the court was imposed upon in the proceedings or by which the party complaining was prevented from having his interests fairly presented and fully considered by the court. City of Guthrie v. McKennon, 19 Okla. 306,91 P. 851; Brown v. Trent, 36 Okla. 239, 128 P. 895; Ely Walker Dry Goods Co. v. Smith, 69 Okla. 261, 160 P. 898; McIntosh v. Holtgrave, 79 Okla. 63, 161 P. 739; Wray v. Howard, 79 Okla. 223, 192 P. 584; Dennis v. Kelley,81 Okla. 155, 197 P. 442.

In the instant case the allegations of fraud relied on to bring the action within the exception to the rule of collateral attack are contained in paragraph 11 of plaintiff's petition, that paragraph reading:

"Plaintiff further says that the said sale of the said land is void, for the further reason that the said M. T. Thompson fraudulently and wrongfully entered into a conspiracy, and a wrongful and corrupt agreement with the said Henry Ward, to purchase the said land at a grossly inadequate price, and in furtherance of same did on the 3rd day of December, 1918, sign the guardian sale bond and that the purpose and act of the said Thompson in signing the sale bond, was to carry out his conspiracy with the said Henry Ward to cheat and defraud the said plaintiff out of the said property."

The additional sale bond and the return of sale showing the name of the purchaser were matters of record in the proceedings and must have been considered by the court on the hearing on the return of sale. It was also a matter of record in these guardianship proceedings that the land in controversy was purchased by the guardian for his ward, the plaintiff herein, in 1910, on order of the court, for $800, while the sale here attacked was made in 1918 for the sum of $2,000, no improvements having been placed on the land during these eight years. This reflects no gross inadequacy of price, such as would shock the conscience of a court of equity, so that the elements of extraneous fraud, and the objects and purposes of the alleged wrongful and corrupt agreement between the guardian and the purchaser, are left entirely to conjecture.

Such general and inconclusive allegations of fraud are insufficient. There must be allegations of material matters to which the court can point a finger and say: If the proof should sustain these allegations extraneous fraud would be established within the meaning of that term as defined by the authorities last above cited. In Wray v. Howard, supra, it is said:

"A mere allegation of fraud is a conclusion, and is not sufficient. The general rule is that the specific facts constituting fraud must be averred, unless, of course, the facts alleged are such as in themselves constitute fraud."

This action being a collateral attack on the sale proceedings in question, it is clear that plaintiff has not brought herself within the exception to the rule against collateral attack, and that her petition stated no cause of action for fraud extraneous of the record.

This leaves for consideration only the question of whether the county court of McCurtain county had jurisdiction at all stages of the sale proceedings.

An examination of the petition to sell filed in this case shows that it is entirely sufficient to invoke the jurisdiction of the county court under the authority of Welch v. Focht et al., 67 Okla. 275, 171 P. 730, and that notice of hearing thereon, as shown by the transcript, was given in full compliance with Comp. Stat. 1921, sec. 1472. It appears from the petition to sell that "the next of kin of the ward and all other persons interested in the estate of said ward" resided in Coal county, and the notice of hearing was deposited in the United States mail, properly addressed to each of them with postage fully prepaid. Three copies of the notice were also posted in McCurtain county. The fact that two of the three posted notices were posted at different places at the court house could at most be a mere irregularity. Tiger v. Drumright,95 Okla. 174, 217 P. 453.

Other irregularities are complained of, such as that the record is silent touching any order of the court continuing the hearing on the petition from October 31 to December 2, 1918; that the court ordered the sale to be made in tracts of 40 acres, which was done, but that the notices of sale did not so state. These and all other matters of procedure, after jurisdiction was acquired, were properly before the county court for determination in the exercise of its general probate jurisdiction. If in their determination that court erred such errors were subject to correction in a proper proceeding brought for that purpose, but such errors cannot form the basis of an attack on jurisdiction in a collateral proceeding. Cowan v. Hubbard, 50 Okla. 671, 151 P. 678; Berry v. Tolleson,68 Okla. 158, 172 P. 630; Tucker v. Leonard et al., 76 Okla. 16,183 P. 907; Ross et al. v. Groom et al., 90 Okla. 270,217 P. 480.

Upon a consideration of the entire record it is concluded that the trial court was correct in sustaining the demurrer to plaintiff's petition, and, plaintiff having elected to stand upon her petition, the judgment of the trial court dismissing the action should be in all things affirmed.

By the Court: It is so ordered.