Leforce v. Haymes

*195 Williams, J. (after stating the facts as above). Section 4760 (chapter 66, art. 22, § 562), Wilson’s Kev. & Ann. St. 1903, provides nine different grounds upon which the district court may vacate or modify its judgments or orders after the term at which the judgment or order was made. Section 4762 (chapter 66, art. 22, § 564), Wilson's Rev. & Ann. St. 1903,'provides that the proceedings to vacate or modify the judgment or order, on the grounds mentioned in subdivisions 4, 5, 6, 7, 8, and 9 of said section, 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. The second, third, and fourth grounds alleged in the petition of the defendant in error (defendant below.) are based on the fourth, seventh, 'and ninth subdivisions of section 4760, supra. No defense thereto is set up in the petition. That is necessary. Mosley, .Adm’r, v. Southern - Mfg. Co., 4 Okla. 492, 46 Pac. 508. The same rule applies where the proceeding is in equity and not by virtue of the statute. Hockaday et al. v. Jones, 8 Okla. 156, 56 Pac. 1054. Further, as to the first allegation, “for irregularity on the part of plaintiffs and their attorney, George E. McCulloch, in obtaining said judgment,” this is evidently based on subdivision 3 of section 4760, supra, and was not traversed. Neither was any motion to make more definite and certain or demurrer thereto filed. The question arises as to whether or not this allegation will sustain the judgment rendered by default. In'the case of Ladd v. Nystol, 63 Kan. 23, 64 Pac. 985, Mr. Chief Justice Doster, in speaking for the court, said: “It will be observed that the last two of the above-quoted allegations of fraud were of the most general character. No specific facts and circumstances were stated in them, and therefore.no issue was presented by such parts of the petition. The decisions are full to the effect that general averments of fraud and illegality, without stating the facts upon which the charges are based, present no issue, and evidence thereunder' is not admissible.” ■ In the case of State ex rel. County Attorney v. Williams, 39 Kan. 517, 18 Pac. 727, the court said: *196 “There are other charges of illegality in the petition; but there are no accompanying facts to inform the court in what the illegality consists. Allegations of fraud and illegality, without a statement of the facts constituting the same, are mere legal conclusions and of no force in a pleading. No issue is presented by such averments, and no proof is admissible thereunder.” This case was. cited and followed in the case of Kingman, Pratt & Western Railroad Co. v. Quinn, 45 Kan. 477, 25 Pac. 1068. See, also: L. L. & G. R. Co. v. Com’rs of Douglas County, 18 Kan. 169; Clark v. Dayton, 6 Neb. 192; Pelton v. Bemis, 44 Ohio St. 51, 4 N. E. 714; Ockendon v. Barnes et ux., 43 Iowa, 615; M. & C. R. R. Co. v. Neighbors, 51 Miss. 412; Smith v. Lockwood, 13 Barb. (N. Y.) 209; Dame v. Cochiti Reduction & Improvement Co.. 13 N. M. 10, 79 Pac. 296; Farris v. Henderson, 1 Okla. 384, 33 Pac. 380. Where a declaration, petition, or complaint is so defective that a general demurrer thereto before, or motion in arrest after, judgment, should be sustáined, and judgment is rendered thereon by default, on review in an appellate court, the question of the insufficiency of such pleading to sustain the judgment may be raised. Under the foregoing authorities, the allegations in the first paragraph would have neither been sufficient against a general demurrer or motion in arrest, and will not on appeal here sustain a judgment by default. As to the fifth ground, that the court was without jurisdiction, etc., it has been held by the Supreme Court of Arkansas that where a judgment has been rendered on the verdict, and a motion for a new trial filed within due time, unless the same is disposed of before the expiration of the term, such judgment becomes final. Leigh v. Armor, 35 Ark. 123; Vallentine v. Holland et al., 40 Ark. 338; Kearney, Assignee, v. Moose et al., 37 Ark. 37; Siloam Springs v. McPhitridge, 53 Ark. 21, 13 S. W. 137. See, also, to. the same effect, Merrill et al. v. Martin et al., 3 Ind. T. 571, 64 S. W. 539. After the expiration of the term, the judgment entered becomes final and can be set aside only in the way and for the reasons provided by sections 2589 and 3360, Ind. T. Ann. St. 1899 (Mansf. Dig. §§ 3909 and *197 5155), or by proceeding in equity. Turner v. Vaughan, 33 Ark. 454; Johnson v. Campbell, 52 Ark. 316, 12 S. W. 578; State National Bank v. Neel, 53 Ark. 110, 13 S. W. 700, 22 Am. St. Rep. 185. But it is insisted by the plaintiff in error that section 3382, Ind. T. Ann. St. 1899 (Mansf. Dig. § 5177), which provides that, when a trial by jury has. been had, judgment must be entered by the clerk in conformity with the verdict, unless it is special, or the court reserves the question for advice, argument, and consideration. Section 3383, Ind. T. Ann. St. 1899 (Mansf. Dig. § 5178), provides that where the verdict is special, or where there has been a special finding on particular questions of fact, or where - the court has ordered the case to be reserved, it shall order what judgment shall be entered. In this ease a motion was filed by the plaintiff (plaintiff in error here) that the verdict be amended by striking therefrom finding 4, and that judgment be rendered upon finding 1 of the special verdict. This motion was not acted upon at the term,' but was continued by agreement until the next term. The province of the verdict is to declare the facts -upon which the judgment of the court is to be predicated. Gray v. Phillips, 1 Morris (Iowa) 430; May v. Taylor, 22 Tex. 349; Darden v. Matthew, 22 Tex. 324. The special verdict is one in which the jurv state the naked facts as they find them to be proved,” and return such finding to the court for its judgment thereon as to the law. 29 Amer. & Eng. Enc. of Law (2d Ed.) p. 1028. In the case of First National Bank of Sturgis v. Peck et al., 8 Kan. 661 (2d. Ed. 445), Mr. Justice Brewer, in speaking for the court, said: “What is a special verdict? Under our statute the jury can be called upon to respond in three ways: By a general verdict, by a special verdict, and by returning answers to particular questions of fact. True, this latter mode of interrogating the jury can be resorted to only in conjunction with the first: but it is nevertheless a distinct mode. A general verdict embraces both the law and the facts. It states the result of the whole controversy. It determines the ultimate rights of the parties. True, the jury receive the law in the instructions of the court; but *198 they apply the law to the facts, and, having combined the two, declare the result.” Under the practice that was in force in the Indian Territory prior to the organization of the state, the verdict of the jury could be ,either general or special. Section 355, Ind. T. Ann. St. 1899 (section .5140, Mansf. Dig.). Until judgment was rendered by the court on the special verdict, the issues in that action had not been determined. . Section 3368; Ind. T. Ann. St. 1899 (section 5163,.Mansf. Dig.). And we reach the conclusion that, -said action not having been finally determined until judgment had been entered upon the verdict by order of the court, the continuance of the motion to amend the, verdict until the next term was valid, and that the court had jurisdiction at the following term to enter judgment upon said special verdict. In this conclusion we seem to be supported by the case of Siloam Springs v. McPhitridge, 53 Ark. 21, 13 S. W. 137, wherein it is said:. “Its judgment upon the verdict convicting McPhitridge became final'at the end of the fall term, and the pendency of the motion for new trial and in arrest and the order suspending execution of the judgment did' not- prevent this result. Had the court desired to reserve the matter of the motion for consideration, it should have set aside the judgment at the fall term.” As to whether or not the judgment entered by the district court on the 3d day of January, 1908, upon ..the special verdict,was proper, that question is not properly before us; no appeal having been prosecuted therefrom. The judgment of the lower court is reversed, and the cause remanded, with instructions to set aside the judgment entered on the 9th day. of April, A. D. 1908, vacating the judgment of January 3, 1908, and to dismiss the petition to vacate, as the pleadings now stand. All the Justices concur.