NERO v. BROOKS

NERO v. BROOKS
1926 OK 71
244 P. 588
116 Okla. 279
Case Number: 15909
Decided: 01/26/1926
Supreme Court of Oklahoma

NERO
v.
BROOKS et al.

Syllabus

¶0 Judgment--Judgment Outside of Issues--Right to Set Aside.
A judgment which is entirely outside of the issues in the case, and upon a matter not submitted to the court for its determination, may be vacated and set aside at any time, on motion of a party, or any person affected thereby.

Commissioners' Opinion, Division No. 2.

Error from District Court, Hughes County; Geo. C. Crump, Judge.

Action by Fredonia Willis Nero against Walter Brooks et al. Judgment for defendants, and from adverse judgment on merits upon hearing plaintiff's motion to vacate a judgment, she appeals. Reversed.

G. Ralls, for plaintiff in error.
Turner & Lucas, for defendants in error.

WILLIAMS, C.

¶1 The parties in this case will be referred to as they appeared in the court below.

¶2 It appears, as disclosed from the record in this case, that in September, 1923, the plaintiff, Nero, filed her action against the defendant Walter Brooks, and others, to cancel a warranty deed purported to have been made and executed by her on the 9th day of July, 1915, for the reason that said deed was a forgery, covering a certain quarter section of land, and for the rents and profits derived therefrom. It further appears from the record that no service was ever made upon the defendant Brooks, nor upon the other defendants, except one oil company, who filed a demurrer to the petition of the plaintiff. It is further disclosed by the record that on February 18, 1924, the plaintiff and her attorney, Mr. Stevenson, and the defendant and his attorney of record, appeared in open court and consented to a trial of the issues involved in said case, The record does not disclose the fact that any report of the proceedings of said trial was taken by a reporter. The journal entry, however, entered of record with reference to the trial, recites that the parties were present in person and by their respective counsel, and that they announced ready for trial; that they waived a jury and submitted the issues to the court. The journal entry further recites that the court, having heard the testimony of the witnesses, found that the defendant Brooks was the owner of the real estate in fee simple, quieted the defendant Brooks' title to the land, and validated the various oil leases on said land from Brooks to his codefendants.

¶3 It further appears from the record in this case that after the rendition of this judgment, to wit, on February 18, 1924, the plaintiff filed her motion to set aside and vacate the judgment rendered on the 18th day of February, 1924, and in said motion she alleged: (1) That the said judgment was obtained by fraud; and (2) that the court was without jurisdiction to render said judgment, no issue being joined.

¶4 The defendants filed a response to the motion of plaintiff to vacate, consisting of a general denial, and further alleged that subsequent to the filing of the suit to cancel the warranty deed because of forgery, plaintiff executed unto defendant a quitclaim deed to said land, and was to receive therefor the sum of $ 3,000, to be paid upon confirmation of such settlement by the court in the action then pending, and that the cause was to be dismissed with prejudice and judgment rendered accordingly.

¶5 On page 72 of the case-made, we find the following:

"Be it Remembered, that on the 17th day of March, 1924, the same being one of the days of the March, 1924, term of the district court of Hughes county, Okla., the above-entitled cause of action came on for hearing before the Honorable George C. Crump, the regular presiding judge of said court, upon the motion of the plaintiff above named, to vacate and set aside the judgment rendered against her, to wit, on the 18th day of February, 1924, and all parties appearing and announcing ready for trial upon said action, the following appearances and proceedings were had."

¶6 These proceedings occurred in connection with the motion of the plaintiff to vacate the judgment of February 18, 1924. There were no pleadings filed by the defendant of any character or description, upon the merits of the case, and there was nothing before the court, and no hearing was being had on anything except the motion to vacate the former judgment of February 18, 1924, and that judgment was based upon the allegations of the plaintiff that the original deed of July 9, 1915, was a forgery.

¶7 After the court had heard the evidence in the case, and on the 8th day of May, 1924, he installed the motion of the plaintiff to set aside and vacate the judgment rendered on the 18th day of February, 1924, and dismissed the action of the plaintiff with prejudice, and perpetually enjoined her from instituting any action affecting the title to the southwest quarter of section 5, township 9 north, range 9 east, Hughes county, Okla., and declared the defendant to be the owner in fee simple of said land, and validated the oil leases thereon. Exception was taken to this judgment, motion for a new trial was made and overruled; the plaintiff brings the action here for review, and seeks a reversal of the judgment upon the following grounds:

"(1) The court erred in dismissing the plaintiff's cause of action. (2) The court erred in dismissing the plaintiff's cause with prejudice. (3) The court erred in perpetually enjoining the plaintiff from instituting any action affecting the land in controversy. (4) The court erred in finding that there was no fraud in the procurement of the deed from her by defendant Walter Brooks, that was executed by her, after this cause was instituted."

¶8 It will be necessary to consider the matters involved in the motion to set aside the judgment of February 18, 1924, in order to determine whether the trial court committed error.

¶9 After judgment was rendered against the plaintiff upon the testimony of the defendant sustaining the deed claimed by the defendant, the plaintiff filed her motion to set aside the judgment of February 18, 1924, in the cause, setting forth various grounds for setting aside the judgment and entitling her to a new trial. The court permitted the defendant to file an answer or reply to the motion to set aside and vacate the judgment. The pleadings so filed by the defendant set up a quitclaim deed of February 18, 1924, secured from the plaintiff subsequent to the filing of the case, as supporting his right to judgment in the cause. Thereupon, the court considered the motion to set aside and vacate, and, apparently, at the same time received evidence going to the merits of the action commenced by the plaintiff against the defendants. The court entered judgment upon the ground that the issues had not been joined between the parties at the time the first judgment was rendered in the cause, and thereupon found the issues that would have been involved in the trial of the cause under proper pleadings, in favor of the defendant. The plaintiff assigns as error the action of the court in entering judgment against her upon the motion to vacate and set aside the former judgment. A consideration of the error as assigned involves a consideration of the scope covered by the motion to set aside the judgment of February 18, 1924, and the issues presented by such motion. The court was required by statute and civil procedure to confine the hearing on the motion to set aside the judgment of February 18, 1924, to, such matters and issues as were presented by the motion to set aside, and upon which issues were joined by a proper pleading thereto by the defendant. The matters presented by the motion to set aside the February judgment by the plaintiff related to the proceedings had by the court in the trial of the cause. The answer or reply, filed by the defendant in response to the motion to vacate and set aside, set forth an allegation to the effect that the plaintiff had executed and delivered a quitclaim deed to the defendant subsequent to the time plaintiff commenced her action. Since the motion to set aside the judgment of February 18, 1924, must relate to the proceedings had in the trial of the cause, and such proper pleadings as are permitted by statute and civil procedure, in relation to the errors set forth in the motion to vacate and set aside, it becomes apparent that the matters set forth in the answer or reply filed by the defendant are entirely foreign to the questions presented by the motion to vacate and set aside. It was the duty of the court to examine the matters and proceedings assigned by the plaintiff in error for setting aside said judgment. The office and purpose of a motion to vacate and set aside the judgment in this case was to call the attention of the trial court to some error committed in the course of the trial against the parties suffering the judgment.

¶10 The statute enumerates the pleadings required to create and tender certain issues, and that statute and civil procedure define the scope of the issues created by such pleadings. The court is not authorized by statute or civil procedure to enlarge the scope of the pleadings as created and defined by statute and civil procedure. The trial court is not authorized to digress from the beaten pathway provided by statute and civil procedure in relation to the creation and trial of the issues as defined by statute and civil procedure.