159 P. 1112 | Okla. | 1916
The first assignment of error to be considered is the ruling of the court in permitting the plaintiff to withdraw her dismissal filed on October 3, 1913. It has been held by the court that section 5126, Revised Laws 1910, gives the plaintiff the right, upon the payment of costs, to dismiss his action at any time before a petition of intervention or answer, praying for affirmative relief against him, has been filed. While the clerk should make some record of the dismissal when the same is filed by the plaintiff, yet the mere filing of the written dismissal acts automatically to dismiss the action, and it does not take an order of the court to render the same effective. Long v. Bagwell,
"But the filing of the stipulation by plaintiff is not all; for the statute requires that the costs be paid. * * * It cannot be said, therefore, that the mere filing of the stipulation automatically dismissed the suit. Until the costs were paid it remained upon the court docket, as though the stipulation had not been filed. The court was not divested of jurisdiction over the action until a compliance with the statute."
Defendants next urge that, owing to the fact that the federal court had first assumed jurisdiction of this cause, involving the same parties and subject-matter, this fact precluded plaintiff from prosecuting an action in another court for the same purpose. It will be noted that plaintiff's petition embraced two counts or causes of action. The first was an action in ejectment and for damages, and the second sought the cancellation of the first deed given by plaintiff, *246
Mimey, to defendants Davis and Henry. When defendants introduced a certified copy of the said petition filed in the federal court by the United States attorney, the plaintiff then dismissed her second cause of action, and the court announced that the trial would proceed upon the ejectment action. It is defendants' contention that as the federal court had first acquired jurisdiction, it had power to grant complete relief, and could not be divested by the district court of Seminole county of any part of its jurisdiction. It was held in the case of Heckman v. U.S.,
Plaintiff's action was one in ejectment and for damages for retention. Defendants' answer thereto was in effect a general denial. At the trial it was shown that defendants had procured two deeds to the land in controversy. The first deed was obtained on the 24th day of January, 1907, but the court properly ruled that said deed was void because the restrictions of plaintiff, Mimey, had not been removed at that time. The second deed was dated the 27th day of September, 1913, long after this action had been instituted and the issues made up, and defendants relied solely on this deed to defeat plaintiff's action. Plaintiff attacked this deed upon the ground that it was procured through fraud. Defendants here complain of the court's action in permitting evidence to be introduced to prove this fraud, because plaintiff had not alleged fraud in her pleadings. It is true, as a general rule, that in order to prove fraud it must first be pleaded, but it would be an anomaly to say that plaintiff will not be permitted to attack a deed thus obtained through fraud after the issues have been made up, because the fraud had not been pleaded. Under the conditions presented in this case we believe the ruling of the court in admitting the evidence was correct, and that the same was amply sufficient to sustain the verdict of the jury.
The evidence in this case shows that the plaintiff, Mimey, was a very ignorant, illiterate Indian woman. The defendants obtained possession of her allotment in 1907 under a void conveyance, and after this action was brought to recover possession, which she had for a long time been deprived of, and pending the action, she was induced to make another deed thereto, and also sign away her right to damages while the land was detained from her. In the execution of the second deed, the evidence plainly shows she was overreached and imposed upon. It appears that she was an old woman, alone, unable to speak or understand English, and she was induced by another Indian woman, who was paid a fee of $25 by defendants for her services, and who was able to speak intelligently both the Indian language and English, to sign the second deed for a mere pittance of its actual value by being told that she would lose her suit anyway, and that she should take what she could get.
During the trial the plaintiff dismissed as to some of the defendants, and the final judgment was against defendants Davis, Henry, and Owens. It is admitted that there was *247 no evidence in the record fixing liability on the said Owens, and that he ought to be relieved from the effect of the judgment. Upon this point the defendants contend that the judgment is joint and indivisible, and as it must be reversed as to the said Owens, it must be reversed as to the other defendants also. The defendants have cited a long list of authorities to support their contention, which have no force in this state, as the common law rule upon this point has been expressly abrogated by statute. Section 5124, Revised Laws 1910, reads as follows:
"Judgment may be given for or against one or more of several plaintiffs, and for or against one or more of several defendants; it may determine the ultimate rights of the parties on either side, as between themselves, and it may grant to the defendant any affirmative relief to which he may be entitled. In an action against several defendants, the court may, in its discretion, render judgment against one or more of them, leaving the action to proceed against the others whenever a several judgment may be proper. The court may also dismiss the petition with costs, in favor of one or more defendants, in case of unreasonable neglect on the part of the plaintiff to serve the summons on other defendants, or proceed in the cause against the defendant or defendants served."
Section 5236, Revised Laws 1910, relates to the jurisdiction of the Supreme Court, and is as follows:
"The Supreme Court may reverse, vacate or modify judgment of the county, superior or district court, for errors appearing on the record, and in the reversal of such judgment or order, may reverse, vacate or modify any intermediate order involving the merits of the action, or any portion thereof. * * *"
The above two statutes, construed together, make it evident that the action of the Supreme Court on the point, involved here is governed by statute, and not by the common law, and has full power to render such judgment as the facts warrant, and may reverse as to one party and affirm as to another. Outcalt v. Collier,
However, even if the defendants were correct in their statement of the law that a joint judgment, if reversed as to one of the defendants, must be reversed as to all, yet it would have no application here because the judgment rendered by the trial court was not a joint judgment, but a joint and several judgment. Richardson v. Painter.
Of course it will be conceded that where the rights of the defendants are so interwoven, and their interests so united that the, judgment of necessity affects all alike then the action of the court upon appeal should be the same as to all the defendants. But the judgment in the case at bar as shown before was joint and several. In the case of Hamilton v. Prescott,
"We think the conclusion to be deduced from these apparently conflicting cases is that this court, when it finds error in the proceedings of the lower court as to any party to the judgment and not as to another, and that a proper decision of the case as to one is not dependent upon the judgment as to the other, will reverse in part and affirm in part. But where the rights of one party are dependent in any manner upon those of another, it will treat the judgment as an entirety, and where a reversal is required as to one it will reverse the judgment as a whole." Heintz v. Thayer,
We recommend that the judgment as to Bob Owens be reversed, with instructions to dismiss the action as to him, and affirmed as to defendants J.O. Davis and Malcolm Henry.
By the Court. It is so ordered.
