285 P. 845 | Okla. | 1930
This is an action by Isparhecher Stevens, as plaintiff, against W.H. Dill, Walton Trust Company, W.O. Bassett, D.A. Dill, E.H. Moore, Independent Oil Gas Company, Prairie Oil
Gas Company, and Prairie Pipe Line Company, as defendants, to have canceled and set aside a guardian's deed to certain lands described in the petition and all other conveyances based thereon. Demurrers to plaintiff's petition were sustained by the trial court, and plaintiff stood upon his petition. The petition was dismissed, and plaintiff has appealed. The case is a companion case to that of W.H. Dill v. Dewey Stevens et al.,
Plaintiff originally commenced a proceeding in the probate court of Okmulgee county, as a direct attack to have all proceedings, including guardian's deed, set aside. The probate court denied the relief asked. Plaintiff then appealed to the district court with like result, and then appealed to this court. This court affirmed the judgment of the district court, and ordered the action dismissed. Stevens v. Dill,
In the companion case, it was held that the petition contained sufficient allegations of extrinsic fraud, which, if established by competent evidence, would entitle defendant to the relief prayed, and was good against a demurrer. The allegations of the two petitions with reference to fraud vary in no material respects, and, in this particular, the demurrer should have been overruled.
One of the grounds of the demurrer was that the petition showed upon its face that it was barred by the statute of limitation, and counsel for defendant contends that the demurrer was properly sustained on this ground. The petition recites that plaintiff was three years old in September, 1898; that he served in the United States Army from August 2, 1918, until August 9, 1919. According to the petition, plaintiff became of age in September, 1916. It is further alleged that on September 30, 1919, plaintiff began his action in the county court, and the probate division thereof, to recall and vacate the guardian's deed. This action was not finally determined until September 26, 1922, which resulted in a decision of this court affirming the judgment of the district court and dismissing plaintiff's appeal because the probate court of Okmulgee county never had jurisdiction to try the character of action there brought. Counsel for defendant contends that the commencing of an action in a court having no jurisdiction to entertain it is no action, and will not toll the statute of limitation. Section 190, C. O. S. 1921, is as follows:
"If any action be commenced within due time, and a judgment thereon for the plaintiff be reversed, or if the plaintiff fail in such action otherwise than upon the merits, and the time limited for the same shall have expired, the plaintiff, or, if he die, and the cause of action survive, his representatives, may commence a new action within one year after the reversal or failure."
There can be no doubt but that plaintiff failed in his action otherwise than upon the merits. Stevens v. Dill,
Section 190, supra, was adopted from the Statutes of Kansas. The Supreme Court of Kansas, in the case of Ball v. Biggam et al.,
Upon authority of the holding in Dill v. Stevens, No. 16655,
BENNETT, HERR, DIFFENDAFFER, and LEACH, Commissioners, concur.
By the Court: It is so ordered.
Note. — See 'Guardian and Ward," 28 C. J. § 92, p. 1201, n. 92. "Limitations of Actions," 37 C. J. § 543, p. 1090, n. 34.