Webb v. Semans, 235 P. 1074

Webb v. Semans

235 P. 1074

Okla.

1925

Check Treatment

Opinion by

MAXBY, C.

(after stating the-facts). Counsel for plaintiff in error consolidated the assignments of errors and take them up under separate heads. They consolidate the second, seventh, and eighth assignments of error and take them up-under the following propоsition : “The findings and judgment of the court is contrary to the evidence.” Counsel devote several pages of their brief to a discussion of this proposition. Thejy set out several images; of testimony under this proposition, but as the jury and the court both found adversely to plaintiff’s contention, and we think there-is ample evidence to sustain the findings of both th^ jury and the court, there is- *75 no error in tliаt regard. Counsel for plaintiffs in error also contend that this ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍was a jury case and entitled to be tried by a jury, and cite McCoy v. McCoy, 30 Okla. 379, 121 Pac. 176, as supporting that proposition, and also the ease of Avery v. Mayes, 61 Okla. 145, 160 Pac. 712. Wej do not think either of these cases aрply to this case. Counsel next take up the statement of account between plaintiffs in error and defendant in error, which are set out in the court’s ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍findings of facts, and also contend that the findings and the judgment of the court are contrary to law, and cite the cases of Oklahoma State Bank of Cushing v. Buzzard et al., 61 Okla. 88, 160 Pac. 462; Choi v. Turk, 55 Okla. 499, 154 Pac. 1000; Standard Savings & Loan Association v. Anthony Wholesale Grocery Company, 62 Okla. 242, 162 Pac. 451, and Continental Gin Company v. Arnold, 66 Okla, 132, 167 Pac. 613. But we will have more to say on this proposition a little later on, wherein we will attempt to show that thes^ con-tenth ns of plaintiffs in error are not sound.

Defendant in error cites Harding v. Gillett, 25 Okla. 199, 107 Pac. 665, and Page v. Turk, 43 Okla. 667, 143 Pac. 1047, and other authorities, but we think that thej casе of Harding v. Gillett, supra, is decisive of this case. In that case the facts are very much like the facts in the instant case. The сasej was three times tried in the trial court, duly appealed to the Supreme Court c f the Territory of Oklahoma, and duly aрpealed from that court to the Supreme Court of the United States, and then tried again in thej territorial district court and appealed to the Supreme Court of Oklahoma after the comng in of statehood. Judge Hayes, who wrote the opinion in that case, necessarily had to review all of the decisions on the different appeals in that court and a reviеw of his opinion shows that practically every question involved in this case was passed on and decided in the different appeals in that case. It seems under the first trial of that case that there was a decree of foreclosure, and thаt Harding bought the land at thej foreclosure sale. After the sale, some two years, Myrtle Gillett brought an action to set aside the sale, so far as she was concerned, on the ground that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍she was not served with notice of process in said suit. It appеars they had attempted to get service by publication, but on account of defective affidavits the court held that' thеy did not get valid service by publication and set the decree aside. Harding had gone into possession under his foreclosure deed and the court on setting aside the sale held that his status was that of mortgagee in possession, and that notwithstanding his deed wаs set aside he stood in the place of Itomig, the original mortgagee, and succeeded to all of his rights as such. Harding remained in possession during all of the litigation which covered a period of about 10 years, and on the final hearing of the cаsej, the court gave Harding judgment for the amount of his debt, interests, and costs due under the mortgage, charged him with the reasonablе! rental of the place during the time he had occupied it, and allowed him credit for the improvements made on the рlace, and stated the account between Harding and. Mrs. Gil-lett. The closing part of the opinion by Judge Hayes is as follows:

“Plаintiff in error is not an innocent purchaser. Gillett v. Romig, 17 Okla. 324, 87 Pac. 325, supra. He acquired by his purchase from the purchaser at the void forеclosure sale no title whatever to the mortgaged premises. By subrogation he succeeded to the rights of thej mortgagеe, the plaintiff in the foreeh sure proceeding. He became the owner of the mortgage indebtedness and the mortgаgee’s lien. He in fact became the adverse party, the real party in interest. Notice was served upon him of the proceeding to vacate the defective judgment. In response to this motion, he appeared, made no objection to the character of the proceeding, but filed his answer denying the allegations of the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍motion, became а party to the proceeding, filed his affidavit .in support of his answer and a motion to dismiss the motion to vacate upon thе ground that it failed, to state facts sufficient to entitle the movant to any relief. Upon these pleadings the court renderеd judgment vacating the foreclosure! decree from which an appeal was taken by plaintiff in error to the Supreme Court of the Territory and to the Supreme Court of the United Statejs. During the 10 years or more intervening since that time, he has been in рejrson and by counsel vigorously conducting the defense in this action.

“Due process oí law, by the federal Constitution requires only that a party shall have reasonable notice and shall have an opportunity to be heard before the issues are decided against him. All of this plaintiff in error has had in this proceeding. In Louisville & Nashville Ry. Co. v. Schmidt, 177 U. S. 230, 20 Sup. Ct. 620, 44 L. Ed. 747, it was held that t'he rendition of a judgment against one whо was not served with process -in an action, or named a party until after the original judgment was rendered. but was brought in subsequently therеto by an order to show cause, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and condemned to pay the judgment, did not deny to such party due process of law wherе he had voluntarily appeared in the case and actively conducted the defense. And a rejmedy by motion in a statе" court which giveá notice and *76 affords an opportunity to be heard has been held to be sufficient to constitute! due process of law. Iowa Ry. Co. v. Iowa. 160 U. S. 389, 16 Sup. Ct. 344, 40 L. Ed. 467.

‘‘Finding no error in the record requiring a ,reversal of the judgment, the judgment of the trial court is affirmed. All the| Justices concur.”

An examination of that case shows that every material question involved in this case was passed on in thаt case. This case has been followed by this court ever since the opinion was announced (see Page v. Turk, 45 Okla. 667, 143 Pac. 1047; Baker v. Leavitt et al., 54 Okla. 70, 153 Pac. 1099; Strawn v. Brady, 84 Okla. 66. 202 Pac. 505), and we think is decisive of this case and recommend that th^ judgment of the trial court be affirmed.

By1 the Court: It is so ordered.