Copeland v. Anderson

Copeland v. Anderson
1985 OK CIV APP 30
707 P.2d 560
Case Number: 61067
Decided: 09/24/1985

LINDA A. COPELAND, F/K/A LINDA A. ANDERSON, APPELLANT,
v.
ROBERT E. ANDERSON, APPELLEE.

Appeal from the District Court of Oklahoma County; John M. Amick, Trial Judge.

¶0 Action for damages by divorcee against former spouse arising from defendant's alleged perjury and deceit during earlier divorce proceedings. Defendant's demurrer to the damage claim was sustained. Plaintiff appeals.

AFFIRMED.

Thomas S. Bala, Walter R. Gaidaroff, Robert Leyton Wheeler, Inc., Oklahoma City, for appellant.
Andy M. Coats, Kelley C. Callahan, Crowe & Dunlevy, Oklahoma City, for appellee.

BRIGHTMIRE, Presiding Judge.

¶1 Does civil liability for the tort of perjury exist in this state? This is the foremost question which arises from the sustention of a demurrer to plaintiff's cause of action for perjury and pretrial deceit. A procedural problem concerning our jurisdiction to review will be preliminarily disposed of sua sponte. We hold that civil liability for the tort of perjury does lie in this state but that plaintiff has not factually pleaded the essential elements of such a cause of action.

I

¶2 The parties were divorced October 19, 1981. The decree awarded Linda A. Anderson, now Copeland, custody of two minor children, child support, alimony and a share of the marital estate. It was not appealed. On March 12, 1982, Mrs. Anderson filed a petition in the divorce case to vacate the decree on the ground the adjudication was obtained as a result of fraud on the part of her former husband, Robert E. Anderson, in concealing certain negotiations with his employer, McDonald's hamburger chain, which "had a direct relationship to the earning capacity of [Anderson]."

¶3 While that petition was pending, Mrs. Anderson filed this action on March 7, 1983, charging her former husband with having concealed from plaintiff that arrangements were underway at the time of trial for "granting of a [McDonald's] store to defendant," and with having "falsely denied to the court [during divorce proceedings] that he had any plans to acquire an interest in a store by way of joint venture or by way of a business facility lease with an option to buy," and that such concealment caused plaintiff to be awarded far less than she would have been awarded had Mr. Anderson's "true earning capacity" been disclosed, all to her damage of at least $150,000. She also asked for $500,000 punitive damages because of the alleged fraud and deceit practiced by Mr. Anderson. In other words, plaintiff is seeking to recover damages resulting from her former husband's deceit before and his alleged perjury during the divorce trial.

¶4 In the fullness of time, Mrs. Anderson filed a second amended petition in this case which was divided into what she called three causes of action. Each consisted of substantially the same factual allegations and each sought essentially the same ultimate relief. The first "cause" was for damages said to have resulted from defendant's perjury and deceit. One change was in the substitution of the word "endeavors" for the word "plans" in referring to what defendant had concealed and falsely denied in court. The second "cause" asked for vacation of the divorce decree, presumably so she could once more try to get an additional $150,000 from defendant. The third "cause" requested the court to modify the decree and give her "an additional award of property, or alimony in lieu of property in the amount of $150,000.00."

¶5 On August 19, 1983, the trial court sustained defendant's demurrer to plaintiff's action for damages in her last petition after concluding that the facts she stated would not entitle her to the requested relief. 2 Plaintiff appeals the ruling contending her petition does state a cause of action.

II

¶6 At the outset we take up the jurisdictional question concerning the validity of this appeal - whether it is taken from an appealable order.

¶7 Ostensibly the appeal is from an order sustaining a demurrer to only one of three causes of action. Since one cannot appeal from sustention of a demurrer to one of several causes unless the question is certified by the trial court - which was not done here - we face the prospect of having to conclude that the order appealed is not a final and appealable one and dismiss the appeal as prematurely brought. LaVelle v. Fair Oil Company, 388 P.2d 13 (Okl. 1963); Fowler v. City of Seminole, 196 Okl. 167, 163 P.2d 526 (1945). An analysis of the petition, however, convinces us that the demurrer should not be treated as addressing only a part of the petition but all of it because in our opinion plaintiff has pleaded but one cause of action and seeks a single relief objective - compensation - based on a single set of operative facts. It is in effect a general demurrer. The rule with regard to such a demurrer is that if a petition states any "facts" entitling the pleader to relief it should be overruled. Romney v. Davis, 208 Okl. 81, 253 P.2d 546 (1953). Of course the flip side of this legal coin is that if the petition states insufficient facts for any relief a general demurrer must be sustained. Under these circumstances, then, the order appealed should be considered as having disposed of the entire petition and is therefore a final one which vests in us jurisdiction to decide the issue raised.

III

¶8 The first substantive question to decide is without precedent in this state and is whether our law permits recovery of damages in a civil action for testimonial perjury. If it does, then a secondary question arises, of course, and that is whether the facts plaintiff has pled state such a cause of action.

A.

¶9 With regard to the first question, we conclude that our state constitution and statutes do authorize such an action.

¶10 Prefatorily it might be helpful to note that perjury is a crime in this state and statutorily defined as the willful "making or subscribing" of a false statement under oath, "in a trial, hearing, investigation, deposition, certification or declaration."3 Perjury is also a civil wrong within the purview of Article 2, § 6 of our state constitution,4 and our statutory law. See, e.g., 76 O.S. 1981 §§ 1 , 2 and 5 (a).5

¶11 Actionable perjury is a form of the tort of deceit. To create liability there must be proof that the perjurious statement consisted of a deceit as defined in the first three paragraphs of 76 O.S. 1981 § 3 ,

¶12 One can hardly help wondering how the English jurists came up with their no action idea in the first place. A satisfactory answer requires an exploration of the dark and slippery caverns of Anglo-Saxon jurisprudence as its evolutionary development gave birth to existing decisional law of perjury. It also requires recognition of the fact that the first decision came at a time when the English fact finding process was undergoing vast changes and only lately had emerged from a feudalistic social structure which had begun with the Norman Conquest in 1066 - a process that featured trial by ordeal (abolished by a church council in 1215), determination of facts by "wager of battle," the judicial duel (not officially abolished until 1819 when the unused law was invoked by an ingenious defendant!), "wager of law," and juries composed of "witnesses" to the facts.

¶13 Two early conceptual issues over which a major word war was waged by opposing groups of late medieval legal scholars and judges alike were: (1) whether there was a common law crime of perjury before enactment of the so-called Perjury Statute of 1563 (5 Eliz. c. 9), and (2) whether this statute was a declaratory one, that is, a codification of a preexisting common law crime of perjury, or an "innovative" one introducing a new procedure, remedy or crime. We shall not linger on such complex historical details except to observe the impact of a case that arose three years after the enactment of the Perjury Statute, when a person named Onslowe was charged with having committed perjury in the King's Bench Court.

¶14 The decision was also attacked on another front. Lord Chief Justice Coke - who maintained that perjury was a common law crime before passage of the 1563 Elizabethan statute - and his allies open fired on the Onslowe's Case by publishing an incendiary condemnation of it as being a product of "gross ignorance," the fruit of men "that never read the books at large."

¶15 It may well be asked at this point what Onslowe's Case has to do with the issue we are concerned with here - civil redress for perjury. The answer is, as Gordon points out, that the confusion bred by both the 1563 Perjury Statute and its restrictive interpretation in Onslowe's Case were major factors in the decisions reached later in an English case, the roots of which eventually reached our shores and grew into the traditional American rule that an action for damages resulting from perjury is not available to the injured party.

¶16 That case is Damport v. Sympson.

¶17 The seed of this case eventually reached and was sown on our side of the Atlantic. It germinated. The few courts passing on the question in this country have resorted to similar legal fictions and assorted speculative, if not specious, reasons. And while on occasion our courts have added a reason of their own to justify denial of a victim of perjury his right to redress, few if any have considered relevant state constitutional and statutory provisions or analogous decisional law contrary to the English view. A North Carolina court, for instance, denied an aggrieved party such redress because (1) witnesses who commit perjury are indictable; and (2) witnesses "would be intimidated if . . . subjected to . . . being sued by any party to the action to whom their testimony might not be agreeable."

¶18 "It can readily be seen," wrote an Ohio court, "that if an action can be maintained against witnesses on account of pertinent statements made by them upon the trial of causes in court, how very much the administration of justice would be hampered and what a drag there would be upon the testimony of witnesses. If . . . witnesses . . . could be subjected to an action of damages, how loath they would be to testify at all, and what a great temptation there might be in many cases to obscure or avoid the truth altogether!"

¶19 Nevertheless, in 1845 a New Hampshire court rejected plaintiff's plea for redress for harm arising from perjury on the basis of "estoppel" and "high principles of public policy, and for the purposes of public quiet and order."

¶20 Most if not all of the decisional law in this country tends to ignore the public policy established by both our constitution and statutes and for support falls back on the moldy remains of ancient judicial shibboleths promulgated nearly four centuries ago. One exception, however, is an outstanding opinion by the Ohio Supreme Court in which the court overturned the "weight of precedent for a century and more, in both American and English ruling cases" in order to allow a civil action for damages resulting from perjured testimony given by a defendant before a grand jury.

¶21 In this state, as we have seen, both our constitution and our statutes establish a public policy contrary to that rooted in the speculative concepts conceived at a time when English society had not yet completely emerged from medieval feudalism and its judicial system was still in an unsettled stage of development. An examination of the various ratiocinations underlying the denial of civil redress for perjury by the Lord Justices of the King's Bench will suffice to demonstrate their apocryphal if not spurious nature.

¶22 Take, for instance, the primary reason offered by the Damport court to deny plaintiff relief - that since defendant could be criminally prosecuted for perjury under 5 Eliz. c. 9, the defendant might be punished twice if civil redress were permitted. In contrast to such view our law does not now and never has considered recovery of compensatory damage to be punishment. The Damport court, incidentally, had to be talking only about compensatory damage because that is all that Damport recovered in the trial court. Even with regard to punitive damages no court in this country, so far as we can determine, has ever denied such civil relief for an intentional tort merely because the wrongful act also happened to be a crime. Certainly the courts of this state have not.

¶23 Another reason given by the Damport court was the lack of precedent. With naught but a moment's reflection on this particular statement it should have dawned on his majesty's justices that the idea was at war with the one concept that legal scholars the world over consider one of the single most important contributions of the Anglo-Saxon legal system to jurisprudence - the creation of common law by resolving controversies concerning which no specific law or precedent exists. Indeed the Damport court did just that. And the flip side is that had it decided the case the other way it could have used the very same spurious reason (or nonreason) for doing so.

¶24 The third reason given by the Damport justices was that if plaintiff was allowed to recover "every witness would be drawn in question" and punished "for his oath upon a secret intent" of the jury and, as we pointed out earlier, all witnesses "would be terrified to speak the truth!"

¶25 Such prophetic rationalization, aside from being an affront to common sense, is irreconcilable with the Damport's double punishment concept in that the court gives tacit approval to criminal sanctions which are basically intended to "terrorize" witnesses into telling the truth. If this is indeed the goal of criminal sanctions it is not entirely clear how the allowance of civil redress would have the opposite effect, viz. make witnesses afraid to tell the truth. Such reasoning is at war with both experience in this country and the statutorily expressed public policy of this state.

¶26 Moreover, from the standpoint of deterrence it appears that criminal sanctions have not effectively curbed perjury and need to be supplemented with the restraining effect of potential civil liability. All, we daresay, will accept the conclusion that perjury is incompatible with the integrity and proper administration of justice. Yet, studies indicate criminal sanctions offer but a small obstacle to perjury resulting in an urgent need for more effective deterrents.

¶27 Nor has the "flood of litigation" prediction of the Damport court been the experience of the one state in this country that has statutorily permitted recovery of damages resulting from testimonial perjury at trial. The state of Maine adopted such a statute over a century ago.

¶28 We hold that the law of this state provides a remedy to one who suffers detriment from the tort of perjury committed by a witness during a court proceeding. The essential elements of the tort are those required in an action for deceit except for one variant - it is the court or jury that is deceived rather than the injured party. More specifically the tort of perjury occurs when, during the course of a judicial proceeding, a witness makes a material misrepresentation knowing the statement is false or he makes it recklessly, i.e. without any knowledge of its truth and with the intention that it be acted on by the jury or other finder of facts who in turn does act on the false testimony which results in detriment to the plaintiff.

B.

¶29 The remaining question is whether the factual allegations of plaintiff's petition are sufficient to state a cause of action for the tort of perjury? We conclude they are not. The misrepresentation of defendant underlying both the alleged pretrial deceit and the perjury at trial is the "concealment and false denial to the court" that "there were no endeavors" for him to acquire a McDonald franchise and "false denial to the Court . . . that he had virtually acquired a franchise." Disclosure of such "endeavor," she concludes, would have provided "true facts of defendant's earning capacity" and caused the court to award her "a property settlement" of at least $150,000 more than it did.

¶30 Considering the facts, as distinguished from conclusions, alleged to be true for purposes of determining whether the trial court's sustention of the demurrer to the petition was correct, the problem becomes one of determining whether the fact said to be misrepresented is a material one, i.e. one that, had the truth been known to the court, would have resulted in plaintiff probably receiving more of the material estate than she did.

¶31 A material misrepresentation as used in the law of deceit is one that is so substantial and important as to significantly affect or influence the party to whom it is made.

¶32 It is difficult for us to see how the "endeavors" of plaintiff to achieve a futuristic objective could be material to the issues tried in the divorce action. Merely having either "plans" or carrying on "endeavors" with respect to unrealized goals is not a divisible asset. It is more of a speculation. True, certain goal-oriented "endeavors" may, if ultimately successful, have a bearing on the husband's future income, or as plaintiff alleges, his earning capacity, but if relevant at all they would be limited to the issue of support as distinguished from division of marital assets.

¶33 And there is another serious problem with her allegations. Plaintiff alleges that a "typical reward for a successful McDonald's corporation employee, such as defendant herein, is to arrange for said employee to have an interest in, or become an owner of one of the many McDonald's fast food restaurants; . . . [which] often gross approximately $1,500,000.00 per year in the state of Oklahoma." She also alleges defendant and various employees falsely told her before the divorce action was filed that "there were no endeavors for" such an acquisition by defendant. This implies she was aware of the alleged company policy and such knowledge enabled her to do two things. One, attempt discovery within the means provided by law and two, testify at the divorce hearing concerning what she knew of the McDonald policy in question and to the fact, as she alleges, that defendant "became a fast moving executive for McDonald's." There is, incidentally, no allegation that evidence was not presented at the divorce hearing to rebut defendant's denial of the alleged "endeavors."

¶34 Finally plaintiff says nothing about the specifics of the "endeavors." Was defendant to have only an interest in or was he to own a big M restaurant? What net income did defendant plan to receive? Was there a chance of such an enterprise failing? These questions are unanswered.

¶35 For these reasons we hold plaintiff's second amended petition does not state a cause of action for either pretrial deceit or the tort of perjury.

IV

¶36 The next question is whether the facts alleged are sufficient to permit vacation or modification of the divorce decree. We hold they are not.

¶37 Plaintiff's request for modification is a belated direct attack on the divorce judgment insofar as it resolved the issues pertaining to division of the marital estate and alimony. Such an attack is impermissible unless the plaintiff can bring herself within the limited provisions of 12 O.S. 1981 §§ 1031 , 1031.1, 1032 or 1033. Even collateral impeachment of a judgment is forbidden except upon proof of fraud going to the jurisdiction of the court. Terrell v. Gotcher, 197 Okl. 650, 174 P.2d 229 (1946). There is no allegation of such fraud here.

¶38 The attack appears to be founded on the fourth ground listed in 12 O.S. 1981 § 1031 (4), which authorizes vacation of a judgment for fraud practiced by the successful party in obtaining it.

¶39 There are at least two legal reasons why plaintiff's allegations do not bring her within the reach of this statute.

¶40 And second, the allegations of the petition must comply with the requirements of 12 O.S. 1981 § 1033 , which specify, among other things, that failure of a petition to vacate or modify a judgment to set forth the assailed judgment deprives the court of jurisdiction over the subject of the action.

¶41 The sine qua non of plaintiff's action, as we have seen, is the alleged failure of her proof in the divorce action concerning issues heard and resolved in it - a shortcoming she attributes to the defendant's previously mentioned perjury and pretrial concealment. She thus concedes, as she must, that the substructure of her complaint entails relitigation of issues earlier tried and resolved by a decree that has long since become res judicata.

¶42 As we mentioned earlier, there is an absence of any indication that she availed herself of one of the several statutory pretrial methods of discovery - a failure that seems particularly incredible in view of her allegation that the McDonald people began lying to her about the "endeavors" of defendant to acquire a Big Mac dispensary. This suggests she had reason to be suspicious of such "endeavors" and began making inquiries about it before the divorce action was filed. These averments underscore the fact that plaintiff apparently could have, and certainly should have, garnered the evidence in advance of trial and presented it in court.

¶43 We hold the divorce decree is res judicata with regard to the marital property and alimony rights of the parties; that plaintiff's prayer for vacation or modification of the divorce decree is an impermissible attempt to relitigate tried issues resolved in a decree that long ago became final.

V

¶44 Since, then, the petition fails to state any cause of action we hold the sustention of the general demurrer was not error.

¶45 We therefore affirm the order appealed, dismiss plaintiff's action, and render judgment for defendant together with costs of this appeal.

¶46 Affirmed.

¶47 RAPP, J., concurs.

¶48 STUBBLEFIELD, J., concurs in result.

Footnotes:

1 The record does not show a disposition of this petition to vacate the divorce decree.

2 Demurrers to the second and third causes set out in the first amended petition had been overruled. They were not specifically challenged in the second amended petition except by the one demurrer referred to in Part II.

3 21 O.S. 1981 § 491 , reads:

"Whoever, in a trial, hearing, investigation, deposition, certification or declaration, in which the making or subscribing of a statement is required or authorized by law, makes or subscribes a statement under oath, affirmation or other legally binding assertion that the statement is true, when in fact the witness or declarant does not believe that the statement is true or knows that it is not true or intends thereby to avoid or obstruct the ascertainment of the truth, is guilty of perjury. It shall be a defense to the charge of perjury as defined in this section that the statement is true."

and 21 O.S. 1981 § 492 , defines oath as follows:

"The term `oath,' as used in the last section, includes an affirmation, and every other mode of attesting the truth of that which is stated, which is authorized by law." (Footnote omitted.)

4 This provision reads:

"The courts of justice of the State shall be open to every person, and speedy and certain remedy afforded for every wrong and for every injury to person, property, or reputation; and right and justice shall be administered without sale, denial, delay, or prejudice." (Emphasis added.)

5 Section 1 says:

"Every person is bound, without contract, to abstain from injuring the person or property of another, or infringing upon any of his rights." Section 2 provides:

"One who willfully deceives another, with intent to induce him to alter his position to his injury or risk, is liable for any damage which he thereby suffers."

Section 5(a) reads in pertinent part:

"(a) Everyone is responsible . . . for the result of his willful acts [if] injury [is] occasioned to another. . . ."

6 Section 3 reads in relevant part:

"A deceit, within the meaning of the last section, is either:

1. The suggestion, as a fact, of that which is not true by one who does not believe it to be true.

2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true.

3. The suppression of a fact by one who is bound to disclose it, or who gives information of other facts which are likely to mislead for want of communication of that fact. . . ." (Footnote omitted.)

7 76 O.S. 1981 § 4 , provides:

"One who practices a deceit with intent to defraud the public, or a particular class of persons, is deemed to have intended to defraud every individual in that class, who is actually misled by the deceit."

In other words, with regard to deceptive trial testimony given with the intention of influencing the jury's verdict, the deceiver is deemed to have intended to defraud the litigant who is adversely affected by such verdict.

8 23 O.S. 1981 § 3 , reads:

"Any person who suffers detriment from the unlawful act or omission of another, may recover from the person in fault a compensation therefor in money, which is called damages."

9 See, e.g., Page v. Camp, Kirby 7 (Conn. 1786); Kessler v. Townsley, 132 Fla. 744, 182 So. 232 (1938); Ruehl Bros. Brewing Co. v. Atlas Brewing Co., 187 Ill. App. 392 (1914); Grove v. Brandenburg, 7 Blackf. 234 (Ind. 1844); Curtis v. Fairbanks, 6 N.H. 542 (1845); Kietrys v. Cregar, 23 N.J. Misc. 273, 43 A.2d 810 (1945); Ginsburg v. Halpern, 383 Pa. 178, 118 A.2d 201 (1955); Cunningham v. Brown, 18 Vt. 123 (1846); Platts, Inc. v. Platts, 73 Wash. 2d 434, 438 P.2d 867 (1968).

10 Maine Rev.Stat.Ann. tit. 14, § 870 (1964). It states:

"When a judgment has been obtained against a party by the perjury of a witness introduced at the trial by the adverse party, the injured party may, within 3 years after such judgment or after final disposition of any motion for relief from the judgment, bring an action against such adverse party, or any perjured witness or confederate in the perjury, to recover the damages sustained by him by reason of such perjury; and the judgment in the former action is no bar thereto."

11 N.Y.Jud. Law § 487 (McKinney 1968).

12 W. Hall & R. Albion, A History of England and the British Empire 100-03 (2d ed. 1946).

13 Gordon, The Invention of a Common Law Crime: Perjury and the Elizabethan Courts, 24 Am.J. Legal Hist. 145, 147 (1980). The case referred to is Onslowe's Case, Dyer 242 (7 & 8 Eliz.).

14 Onslowe's Case, Dyer 242 (7 & 8 Eliz.). This holding was based on two fundamental legal conclusions: (1) there was no common law crime of perjury, and (2) there was no statutory vestment of such jurisdiction.

15 Gordon, supra note 13, at 147 (citing Attorney General v. Miles, J. Hawarde, Les Reportes del Cases in Camera Stellata 301 (W.P. Baildon ed. 1894) (1606)). We have taken the liberty of modernizing the quoted language. The original reads this way: "Koke, Ch. Justice del Commonplace, replyed bitterlye, marueylinge to heare such grosse ignoraunce, fruites of abredgemente men that neuer read the bookes at large." Id.

16 Id. at 149 (citing 3 J.F. Stephen, A History of the Criminal Law of England 248 (1883)). For those who would pursue this subject further we recommend Gordon's article. The author is to be commended for pulling together considerable material on such a narrow subject and weaving it into a lengthy and interesting piece.

17 See id. at 156-57.

18 Croke Eliz. 520, No. 8.

19 Id. (Emphasis added.)

20 This language, according to Gordon, is contained in one of several reports of Damport, the most extensive one being Croke Eliz. 520, No. 8. See Gordon, supra note 13, at 157 & n. 69.

21 Godette v. Gaskill, 151 N.C. 52, 65 S.E. 612, 613 (1909).

22 Bickerstaff v. Hingsley, 1 Ohio App. 91, 92 (1913). (Emphasis added.)

23 Curtis v. Fairbanks, 16 N.H. 542, 545 (1845).

24 Gusman v. Hearsey, 28 La. Ann. 709 (1876).

25 Kintz v. Harriger, 99 Ohio St. 240, 124 N.E. 168 (1919).

26 E.g., assault and battery are crimes. 21 O.S. 1981 §§ 641-650.1 . Societal redress by criminal prosecution is no bar to the victim's personal recovery of both compensatory and punitive damages in a civil action. Leforce v. Cooper, 87 Okl. 9, 208 P. 795 (1922). The same is true of assorted other intentional acts that are both crimes and torts, e.g. libel and slander, fraud, larceny, arson, trespass, driving while drunk, etc.

27 Gordon, supra note 13, at 157.

28 Eagle, Civil Remedies for Perjury: A Proposal for a Tort Action, 19 Ariz.L.Rev. 349, 351 (citing a number of law review articles and the Report of the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 347 (1968)).

29 Id. (citing Federal Bureau of Prisons, A Report of the Work of the Federal Bureau of Prisons, table A7, at 29 (1968)).

30 Id. (citing Director of the Administrative Office of the United States Court, Annual Report, table D2, at 412 (1975)).

31 23 O.S. 1981 § 1 .

32 See supra note 10.

33 126 Me. 14, 135 A. 522 (1926); see Eagle, supra note 28, at 374-75 & n. 165.

34 See Morgan v. Graham, 228 F.2d 625, 627 (10th Cir. 1956). Morgan is a good example of a case featuring all the elements of actionable perjury.

35 For elements of fraud and deceit generally see Tice v. Tice, 672 P.2d 1168 (Okl. 1983); Wright v. Cies, 648 P.2d 51 (Okl.Ct.App. 1982); Bradshaw v. Bradshaw, 578 P.2d 762 (Okl.Ct. App. 1977).

36 One statutory ground of a demurrer not pleaded by defendant is that there is another action pending between the same parties for the same cause. 12 O.S. 1981 § 267 (Third). The record indicates a pending petition to vacate the decree in the divorce action, although we are told in a brief that it has been dismissed.

37 Unless there is a substantial compliance with section 1033, the trial court is without jurisdiction. Arnold v. Arnold, 207 Okl. 352, 249 P.2d 734 (1952). "Setting forth" the assailed judgment is a prescribed prerequisite which is accomplished by stating it in full. Hill v. Williams, 6 Kan. 17 (1867). Substantial compliance requires such judgment to be described or set forth. Allen v. Gaston, 74 Okl. 320, 189 P. 183 (1920); Mosely v. Southern Manufacturing Company, 4 Okl. 492, 46 P. 508 (1896).