SARKEYS v. MARTIN

SARKEYS v. MARTIN
1955 OK 217
286 P.2d 727
Case Number: 36384
Decided: 07/19/1955
Supreme Court of Oklahoma

S.J. SARKEYS, PLAINTIFF IN ERROR,

v.

FRED MARTIN, FRANK CIRAR, JR., AND GRACE CIRAR ET AL., DEFENDANTS IN ERROR.

Syllabus

¶0 1. Objection to the introduction of any evidence under a petition is equivalent to a demurrer to such petition.

2. Where suit was filed and summons issued on April 18, 1950, action was commenced within one year after April 18, 1949, and was not barred by statute of limitations.

3. Record examined and petition held sufficient to state cause of action for recovery of possession of real property and to quiet title thereto.

[286 P.2d 728]

Appeal from the District Court of Latimer County, Oklahoma; Clyde M. Followell, Judge.

Action by S.J. Sarkeys against Frank Cirar, Jr., and others to recover possession of and quiet title to real property. The trial court sustained defendants' objection to the introduction of any evidence by plaintiff and in due course this appeal followed. Reversed.

Arnote, Arnote, Bratton & Sadler, McAlester, for plaintiff in error.

Bob Perdue, Wilburton, and Spradling & Moores, Tulsa, for defendants in error.

WILLIAMS, V.C.J.

¶1 This action was commenced by S.J. Sarkeys, hereinafter referred to as plaintiff, on April 18, 1950, against Frank Cirar, Jr., and others, hereinafter referred to as defendants, to quiet title to certain real property situated in Latimer County, Oklahoma.

¶2 On May 23, 1950, defendants Frank Cirar, Jr. and Grace Cirar filed a special appearance and motion to quash summons and a motion to require plaintiff to tender taxes, penalties, interest and costs. So far as the record reveals these motions were never passed on by the court and no further pleadings appear to have been filed by said defendants. On May 25, 1951, defendants Fred Martin and J.J. Schuman filed an answer and cross-petition. The record does not reveal the filing of any other pleadings by any of the defendants.

¶3 On September 23, 1953, the case came on for trial pursuant to the previous order of the court. Appearances were entered in behalf of plaintiff and the defendants Frank Cirar, Jr., Board of County Commissioners of Latimer County and Roy L. Roden, County Treasurer of Latimer County. All other defendants failed to appear and were adjudged in default by the court. After the opening statements of counsel and the calling of plaintiff's first witness, defendant Frank Cirar, Jr., objected to the introduction of any evidence on the grounds that plaintiff's cause of action was barred by the statute of limitations contained in

¶4 An objection to the introduction of any evidence is equivalent to a demurrer to the petition. S.J. Groves & Sons Co. v. Oklahoma City, 191 Okl. 276,

¶5 Plaintiff's petition alleges ownership of the property involved and seeks the cancellation of certain tax deeds outstanding against the property on the grounds that such tax deeds are void for various specified reasons. The action, then, is actually one [286 P.2d 729] for the recovery of real property sold for taxes. The applicable statute of limitations is that found in

"Actions for the recovery of real property, or for the determination of any adverse right or interest therein, can only be brought within the periods hereinafter prescribed, after the cause of action shall have accrued, and at no other time thereafter;

* * *.

"3. An action for the recovery of real property sold for taxes, within five (5) years after the date of the recording of the tax deed. * * *

"(6) Numbered paragraphs 1, 2, and 3 shall be fully operative regardless of whether the deed or judgment or the precedent action or proceeding upon which such deed or judgment is based is void or voidable in whole or in part, for any reason, jurisdictional or otherwise; provided that this paragraph shall not be applied so as to bar causes of action which have heretofore accrued, until the expiration of one (1) year from and after its effective date."

¶6 The foregoing statute became effective on April 18, 1949. Plaintiff filed this action and procured the issuance of summons on April 18, 1950. Plaintiff's cause of action, having accrued prior to the passage of the foregoing statute, was not barred until the expiration of one year from and after April 18, 1949, the effective date of the Act. Applying the rule that the time within which an act is to be done shall be computed by excluding the first day and including the last, as provided by

¶7 Defendant does not dispute the correctness of the foregoing with reference to the computation of time of limitation, but argues that the judgment of the trial court, although based on an erroneous reason, should not be disturbed because it is actually correct on the entire record for another reason. Defendant contends that an action to quiet title where one is out of possession of the real property involved, will not lie unless joined with an action to recover possession, and that since plaintiff admits, by his pleadings, that he is not in possession of the property involved and did not join with this action an action in ejectment, he cannot recover in any event.

¶8 It is true that an action to quiet title by one out of possession will not lie unless joined with an action to recover possession.

¶9 Reversed and remanded with instructions to grant a new trial.

¶10 WELCH, CORN, DAVISON, HALLEY and JACKSON, JJ., concur.

¶11 ARNOLD and BLACKBIRD, JJ., dissent.