Burford v. Kephart

LUTTRELL, J. This suit in equity was filed on August 7, 1944, by the plaintiffs, J. A. Kephart and George L. Thompson, trustees of the First Congregational Church of Wellston, Oklahoma, against the defendants Luella E. Burford and Luella E. Burford, executrix of the will and estate of William R. Burford, deceased. Plaintiffs in the action sought to quiet title to certain real estate in Wellston, establish the ownership of plaintiffs thereto, enjoin defendants from asserting any right, title or interest therein, and to vacate a judgment rendered in the same court in favor of defendants on May 2, 1942, more than two years prior to the institution of this action, which judgment quieted the title of defendants to the property herein involved. The property involved was originally conveyed to the trustees of the First Congregational Church of Wellston and their successors in office. The judgment of defendants was taken in a quiet title action brought by them against the First Congregational Church of Wellston, a corporation, if legally existing, and if dissolved, the unknown successors, trustees and assigns of such church, and service was had upon the "unknown trustees by publication. Plaintiffs brought this action claiming to be successor trustees of the First Congregational Church. In their original petition plaintiffs sought to vacate the judgment in favor of defendants on the ground that such judgment was obtained by the practice of fraud on the plaintiffs and on the court, and it was alleged in the petition that such fraud was not discovered by the plaintiffs until about the 1st of June, 1944, which was some two and one-half months prior to the filing of the present action. After demurrer to the petition had been filed the plaintiffs filed an amended petition upon which the cause was tried. The amended petition likewise sought to vacate the judgment in favor of defendants, on the ground that said judgment was obtained by the practice of fraud by the successful party therein (the defendants herein) upon the plaintiffs and upon the court. The amended petition made no reference to the original petition, and contained no allegation as to date of discovery of the alleged fraud, and no allegation as to why plaintiffs did not apply to the court within the time fixed by section 1038, 12 O.S. 1941. “Where an amended pleading is filed as a substitute for another pleading, or filed without expressly adopting the original pleading, the allegations of the prior pleading, except as repeated in the amended pleading, are wholly abandoned and no reference whatever can be made to the original pleading in determining whether or not a demurrer should be sustained to the pleading in its amended form.” Norris v. Norris, Adm’r, 196 Okla. 46, 162 P. 2d 521. To the amended petition defendants filed their demurrer upon the ground, [346] among others, that the amended petition did not state facts sufficient to constitute any cause of action against the defendants. This demurrer was overruled. When the cause came on for trial the defendants objected to the introduction of any evidence on behalf of plaintiffs for the reason that the petition failed to state facts sufficient to constitute a cause of action against the defendants, which objection was overruled. As stated, the sole ground upon which vacation of the judgment was sought was fraud in its procurement. The amended petition does not purport to be brought under the provisions of the statute covering the vacation of judgments, 12 O.S. 1941 §1031 et seq. Neither is it an application to open up a default judgment, on service by publication, under the provisions of 12 O.S. 1941 §176. There is no statement in the amended petition or in the reply filed by plaintiffs, which was a general denial, excusing the failure of plaintiffs to bring a proceeding to vacate the judgment under our statutory provisions, 12 O.S. 1941 §1031 et seq., or tending to show that the statutory remedy was in any respect inadequate to afford relief to plaintiffs. 12 O.S. 1941 §1031 provides as follows: “The district court shall have power to vacate or modify its own judgments or orders, at or after the term at which such judgment or order was made: . . . “Fourth. “For fraud, practiced by the successful party, in obtaining the judgment or order.” 12 O.S. 1941 §1033 provides as follows: “The proceedings to vacate or modify the judgment or order, on the grounds mentioned in subdivisions four, five, six, seven, eight and nine of the second preceding 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. On such petition, a summons shall issue and be served as in the commencement of an action.” 12 O.S. 1941 §1038 limits the time within which proceedings to vacate a judgment or order under the foregoing sections may be commenced. That section reads as follows: “Proceedings to vacate or modify a judgment or order, for the causes mentioned in subdivisions four, five and seven, of Section 5267 (1031, O.S. 1941), must be commenced within two years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or a person of unsound mind and then within two years after removal of such disability. Proceedings for the causes mentioned in subdivisions three and six of the same section, shall be within three years, and in subdivision nine, within one year after the defendant has notice of the judgment. A void judgment may be vacated at any time, on motion of a party, or any person affected thereby.” This court has many times held, and is now firmly committed to the rule, that the remedies provided by these statutes are exclusive of relief by an action in equity, unless it be shown that the statutory remedy is inadequate. Dardenne v. Daniels, 101 Okla. 201, 225 P. 152; Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Miller v. White, 129 Okla. 184, 265 P. 646; Kendall v. Watts, 135 Okla. 66, 273 P. 991; Flynn v. Vanderslice, 172 Okla. 320, 44 P. 2d 967; Amos v. Johnston, 162 Okla. 115, 19 P. 2d 344. In Amos v. Johnston, supra, the action was brought by the plaintiff to cancel certain deeds and recover land to which he claimed title. The defendants answered setting up a prior judgment vesting them with title. The court said: “The remedies provided by statute to vacate or modify a judgment or order of a district court of this state are exclusive of relief by a direct suit in [347] equity, unless there are reasons shown that the statutory law is inadequate.” In Kendall v. Watts, supra, plaintiff brought an independent suit in equity to set aside a divorce decree theretofore obtained by his wife, in so far as the property rights of the parties were concerned, on the ground of fraud and duress practiced by his wife. We there said: “The petition in this case by proceeding in equity seeks to vacate that part of the judgment of the district court of Carter county, in the divorce action, wherein the property rights of the parties were adjusted and adjudicated and the property in controversy in this suit assigned and confirmed to Pearl Kendall, now Pearl Watts, and plaintiff rightfully conceived it necessary to do this before his title to the property and right of recovery thereof would be complete. “The plaintiff had two years from the 17th day of May, 1922, to present the matters complained of in his petition to the district court of Carter county, but instead he delayed for more than 3Va years to bring this action in the court of Oklahoma county. And there is no sufficient reason stated in his petition why he did not proceed in the court where the judgment was obtained within the time given him by law, and therein his petition failed to state a cause of action in equity to be relieved from the effect of such judgment.” To the same effect are the other cases cited above, and numerous other cases decided by this court. Examination of the record discloses that no evidence was introduced which tended to prove that the statutory remedy for the vacation of judgments was unavailable to plaintiffs, or that for any reason it would not have been adequate to give them full relief, if the judgment of defendants was erroneous or improperly rendered. Defendants’ demurrer to plaintiffs’ evidence was, by the court, overruled, and a motion for judgment made by defendants at the close of all the evidence, for the reason that the evidence of plaintiffs was wholly insufficient to justify the court in rendering a judgment for plaintiffs, was likewise overruled. From what we have said above, it clearly appears that the trial court erred in overruling the motion of defendants for judgment. In a case of equitable cognizance such as this, this court will reverse the judgment of the trial court if it appears that the same is against the clear weight of the evidence. McCubbins v. Simpson, 186 Okla. 417, 98 P. 2d 49. There being no evidence in the record which would sustain a judgment for plaintiffs in this equitable action, the judgment of the trial court must be reversed. Reversed, with directions to render judgment for defendants. HURST, C.J., DAVISON, V.C.J., and BAYLESS, GIBSON, and ARNOLD, JJ., concur. RILEY, J., dissents.