In Re Estate of Clarke

NEPTUNE, Presiding Judge

(dissenting).

I am unable to concur.

The primary grounds established by the majority opinion for reversal of the trial court concern the validity and existence of the judgment purportedly given on January 30, 1973. The foundation of my dissent is that I think the record is sufficient to support the trial judge’s conclusion that the parties sought and obtained on January 30 an agreed judgment despite the lack of formalizing it at that time by the judge’s words in open court or by written journal entry. Had the parties been negotiating an agreement merely, there would have been no occasion for the judge to have gone upon the bench to receive the agreement in open court as he did. I think all parties and all counsel and the judge understood the act as a judgment.

Title 12 O.S.1971 § 681 defines a judgment as “the final determination of the rights of the parties in an action.” By the terms of the agreement a final distribution of the estate would be effectuated between the two parties. That the court had jurisdiction to render a judgment is not at issue; both parties were before the court and the court had jurisdiction over the subject matter — the estate.

All facts and circumstances clearly point to the inescapable conclusion that the parties were present in court that day to procure a consent judgment. The original reason for the parties’ appearance at the courthouse on January 30 was a hearing on appellee’s application to remove appellant as administratrix of the estate. This application was withdrawn by appellee at the very beginning of the proceeding. Yet the parties, their lawyers, and the trial judge remained in the courtroom, an agreement reached by the parties as to the distribution of the estate was presented to the judge in open court, and such was recorded by the court reporter.

I do not believe the concurrence of all these events was designed for merely the agreement of the partiés only, a conclusion one would have to reach to accept the majority’s finding. This was more than a mere discussion of what the parties planned to do — it was the submission to the court of the terms of a consent judgment.

A consent judgment is defined as “[a] judgment, the provisions and terms of which are settled and agreed to by the parties to the action.” Black’s Law Dictionary 978 (4th rev. ed. 1968).

In Oklahoma, the law is well settled as to agreements reached between parties in open court. In Cobb v. Killingsworth, 77 Okl. 186, 187 P. 477 (1920) it is stated: “A judgment by consent of the parties is more than a mere contract in pais; having the sanction of the court, and entered as its determination of the controversy, it has all the force and effect of any other judgment . . . .”

In Martin v. Martin, Okl., 511 P.2d 1097 (1973) the court said: “Parties to a suit have the right to agree to anything they please in reference to the subject-matter of their litigation, and the court, when applied to, will ordinarily give effect to their agreement, if it comes within the general scope of the case made by the pleadings.” Thus Oklahoma recognizes and gives effect to consent judgments, with the same binding force as any other judgment. That there was no evidence presented and that later one or both of the .parties changed their minds as the majority opinion points out, bears no significance as to the binding effect and validity of consent judgments.

Aside from fulfilling the statutory requirements set out in 12 O.S.1971 § 681 I have found no authority in Oklahoma law which places further requirements on the court to effectuate a valid judgment.

The majority opinion also points to the delay in filing a journal entry, and lack of notice to appellant that this document was filed as further evidence that this is not a judgment. In thq case of Austin v. King, Okl., 404 P.2d 1009 (1965) it is stated:

“The validity of a judgment does not depend upon the formal signature of the trial judge to the journal entry. A judgment in fact rendered but not formally entered on the journal is valid and effective from the date of its pronouncement and a record memorial thereof may be supplied by an entry nunc pro tunc.”

The entry of the judgment is merely a ministerial act of the court. Adamson v. Brady, 199 Okl. 55, 182 P.2d 748 (1947). I can find no authority that such acts require formal notice be given to the parties. Here, appellant had actual notice as to the contents of the journal entry as she was present and through her lawyer terms were provided the court which constituted the judgment approved and entered.

Additionally, the majority contends that the filing by appellee of the second petition to remove appellant as administratrix indicates that appellee did not consider the January 30 proceeding a judgment. I fail to see any nexus between the filing and this conclusion. In this petition appellee talks about the agreement being “approved by this Honorable Court.” The petition seeks to remove appellant as administratrix for disregarding the provisions of the agreement, and because of appellee’s belief that appellant was “attempting to keep the estate in the process of administration so she can keep control of all of this petitioner’s interest.” There is nothing in the January 30 judgment which forbids appellee from petitioning for appellant’s removal as administratrix. To the contrary, ignoring a judgment entered and delaying the closing of the estate would be adequate reasons for wanting to remove appellant. With another person as administratrix the judgment of January 30 could be enforced without having to utilize contempt proceedings. Hence I find no indication that ap-pellee’s action demonstrates no judgment to have been rendered on January 30.

Once a party has submitted to the trial court an agreement which is subsequently adopted by the court as a judgment it would create a poor policy to permit a party to subsequently void the judgment because of a later change of mind. I feel such practice should not be tolerated.

The majority’s second ground for reversal is based upon “the propriety of the trial judge’s refusal to disqualify himself from this case.”

The grounds appellant' alleges for such disqualification are: (1) the trial judge and appellee are friends; (2) during the course of settlement negotiations on January 30, 1973, the judge conferred with the parties without counsel for appellant being present and coerced her, resulting in her acceding to the settlement entered on January 30, 1973.

It is admitted that the first allegation is true, but it is also undisputed that the judge is a friend of appellant also. To permit disqualification upon the basis that the judge is acquainted with a party is unrealistic when confronted with circumstances such as in the instant case, where a trial court judge sits and lives in a relatively small community. Ordinarily merely showing that a trial judge is acquainted with the parties before the court is not sufficient to warrant an application for disqualification for bias and prejudice be granted.

As to the second allegation, the burden is upon appellant to establish the judge’s bias or prejudice. The bias or prejudice objectionable under Okl.Const. art. 2, § 6 is that bias for or against a person which ignores the law or facts of a particular case. Oklahoma Co. v. O’Neil, Okl., 440 P.2d 978 (1968). After a thorough review of the testimony adduced at the hearing on this motion, there appears no affirmative showing of bias or prejudice on the part of the judge.

Absent a showing of actual bias or prejudice a judge may nonetheless be disqualified “[w]hen circumstances and conditions surrounding litigation are of such nature that they might cast doubt and question as to impartiality of any judgment the trial judge may pronounce . . .” Callaham v. Childers, 186 Okl. 504, 99 P.2d 126 (1940). Here again, however, the record of the instant case does not support such a finding.

Appellant clearly has not affirmatively shown bias and prejudice from the facts in the record and as such the ruling of the trial court should be upheld. The applicable standard is set forth in Graham v. Graham, Okl., 434 P.2d 245 (1967) where it is stated:

“[A]n application to disqualify a judge in a civil proceeding on the grounds of prejudice or bias is addressed to the trial court’s sound discretion, whose ruling thereon will not be reversed on appeal, unless a clear abuse of discretion appears.”

If, as I contend, the judgment entered on January 30, 1973, is valid, then the ruling as to the motion to disqualify the trial judge for bias and prejudice does not affect the outcome of this case. As will be subsequently shown, only a motion to modify the journal entry to add an omitted term of the agreement, and the order allowing final account of administratrix, determine heirs, and the final decree of distribution and discharge were properly before the court. All that remained for the trial judge to do was order the distribution of the estate in accordance with the consent judgment of January 30, 1973. This the trial court did.

In the case of State ex rel. Nichols v. Johnson, 40 Okl. 511, 139 P. 699 (1914) the court held that the fact that a judge was disqualified by prejudice in a matter concerning probate of a will would not automatically disqualify him from determining other questions involving administration of the estate. Applying this to the instant case — the majority’s finding of bias and prejudice would likely disqualify the judge from presiding over a properly brought motion or petition to vacate the January 30, 1973, judgment — but this disqualification would not of necessity extend to the judge’s determining the final order of distribution where, as here, the only act to perform is non-discretionary — the application of the terms of the prior judgment.

Proceeding from the determination that no bias or prejudice existed, and the acts of January 30, 1973, constitute a judgment, it is necessary to deal with appellant’s next assertion, that her motion to vacate the journal entry and order of January 30, 1973, was improperly overruled. This motion was filed on July 23, 1973. On December 18, 1973, when it came before the trial judge it was dismissed without hearing because “the Motion to Vacate the Journal Entry and Order if it is not filed within ten days, why the Court does not have jurisdiction. This is the order of the Supreme Court which you obtained before the court.” ¹

It is clear that the rationale for the trial court’s ruling on the motion to vacate is erroneous. The order of the supreme court applies only to the appeal taken from the denial of the application to disqualify. The appeal did not involve or in any manner affect the statutorily prescribed-method for presenting a motion for vacation of a judgment. It is a well established rule in Oklahoma, however, “that a correct judgment, although based upon wrong reasons, will not be set aside on appeal.” Mitchell v. Lindly, Okl., 351 P.2d 1063 (1960). Therefore it becomes necessary to ascertain whether this motion to vacate judgment is improper in other aspects so as to allow affirmance of the trial court’s ruling.

Motions to vacate judgments are brought under the authority of 12 O.S.1971 § 1031. Appellant seeks a vacation of the judgment because of an omission of a term from the order and other irregularities, grounds under subdivision three of § 1031, and due to fraud by appellee coupled with coercion by the trial judge, grounds under subdivision four of § 1031. Of importance here is whether the motion to vacate was properly before the court so as to give it jurisdiction. The proper procedures are contained in 12 O.S.1971 §§ 1031.1, 1032, 1033'which are as follows:

§ 1031.1: “Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify oi‘ vacate the judgment. The court may prescribe what notice, if any, shall be given.”

§ 1032: “The proceedings to correct mistakes or omissions of the clerk, of irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial can be made only within three (3) months after the rendition of said judgment.”

§ 1033: “The proceedings to vacate or modify the judgment or order, on the grounds mentioned in subdivision[s] four [‘For fraud, practiced by the successful party, in obtaining the judgment or order’] ... of the second preceding section [12 O.S.1971 § 1031], shall be by petition, verified by affidavit, setting forth the judgment or order, the grounds to vacate or modify it, and the defense to the action, if the party applying was defendant. On such petition, a summons shall issue and be served as in the commencement of an action.”

Additionally, pursuant to 12 O.S.1971 § 1038 actions under subdivision four of § 1031 must be commenced within two years after judgment is rendered or order made; actions under subdivision three of § 1031 must be within three years after defendant has notice of judgment.

It first must be determined if the motion made was timely. Under the statutes aforementioned the periods commence running from “rendition of a judgment.” The term “rendition of a judgment” applies to the pronouncement of the judgment in court as opposed to its entry in the journal. “The rendition of a judgment is the judicial act of.the court in pronouncing the sentence of the law on the facts as ascertained by the pleadings and verdict. A judgment is rendered, within the meaning of the law, at the time it is pronounced by the court and is final, valid and enforceable as between the parties from that date, without formal entry.” Mabry v. Baird, 203 Okl. 212, 219 P.2d 234 (1950); Adamson v. Brady, supra. Hence, under 12 O.S.1971 §§ 1031.1, 1032, 1033 & 1038 the time begins to run in the instant situation from January 30, 1973, the date of rendition of the judgment. The motion to vacate was filed on July 23, 1973, almost six months after rendition of judgment.

The motion cannot be brought under the authority of § 1031.1 as it has a 30-day limitation. Action would be timely under §§ 1032 and 1033.

Having determined that filing was timely within §§ 1032 and 1033 it must next be determined if proper procedural requirements are satisfied so as to invoke their authority.

Section 1033 is not applicable here, for to invoke its authority one must meet its requirements of filing of a petition with affidavits and summons, which was not done.

Consequently, only that part of the motion to vacate dealing with subdivision three of § 1031 is properly before the court. The motion urges that the “Journal Entry and Order” does not truly reflect the agreement announced in open court on January 30, 1973. The briefs point out that part of the announced agreement was omitted from the journal entry and order. Omitted was that portion of the announced agreement whereby appellee is to deed her interest in the property in Maysville, Arkansas, to appellant. Appellee in her brief admits that this provision should be included in the order, and tenders the same. Other than for correction of this omission, there is nothing in the record and nothing is shown in the briefs to warrant reversal for the purpose of conducting a further hearing. The hearing held on the issue of disqualification of the trial judge was permitted to explore all the substantive facets relating to the validity of the journal entry and order. It is clear that no useful purpose would be served by now ordering another hearing. Therefore the “Order Allowing Final Account of Administratrix, Determine Heirs, and Final Decree of Distribution and Discharge” should be corrected to provide that appellee convey her interest in the real estate situated in Mays-ville, Arkansas, to appellant.

Appellant finally contends that the trial court erred in distributing the estate under the order of January 30, 1973, rather than the laws of intestate succession in Oklahoma. This proposition has been dealt with in considering the validity of consent judgments. It is sufficient to state that under the decisions of Cobb v. Killing-sworth, supra, and Martin v. Martin, supra, there appears no reason why all the heirs to an estate cannot, by a consent judgment, effect a valid distribution of the estate binding on all parties.

Accordingly I dissent and would vote to affirm the trial court’s decision as modified by this opinion. If, as appellant alleges, there was fraud or coercion used to obtain the consent judgment of January 30, 1973, the proper vehicle to present this contention is a petition to vacate judgment under 12 O.S.1971 § 1033, not the procedure utilized here.

1 . The order to which reference is made reads as follows: “By virtue of Rule 9 (H), Title 20 O.S., 1971, Chapter 1, Appendix 2, Rules • on Administration of Court [withdrawn Oct. 1973]. Petitioners [appellant’s] Application to assume original jurisdiction in Petition for Writ of Mandamus are denied, jurisdiction denied and Writ denied. Done in conference by tlie Supreme Court on the 21st day of November, 1973.”