GRUBB v. FAY STATE BANK OF FAY

GRUBB v. FAY STATE BANK OF FAY
1926 OK 694
249 P. 341
119 Okla. 199
Case Number: 16854
Decided: 09/14/1926
Supreme Court of Oklahoma

GRUBB
v.
FAY STATE BANK OF FAY.

Syllabus

¶0 1. Pleading--Sufficiency Upon General Demurrer.
A general demurrer admits the truth of all the facts well pleaded in the petition, and the petition must be liberally construed, and all such facts must be taken as true, for the purpose of the demurrer, and where a pleading states facts upon which the pleader is entitled to any relief, under the law, a general demurrer to the same should be overruled. Dies v. Bank of Commerce of Sapulpa, 100 Okla. 205, 229 P. 474.
2. Judgment--Judgment Void on Its Face --Vacation.
A judgment which is void upon its face and requires only an inspection of the judgment roll to demonstrate its want of validity is a "dead limb upon the judicial tree which may be lopped off at any time"; it can bear no fruit to the plaintiff, but is a constant menace to the defendant, and may be vacated by the court rendering it "at any time on motion of a party or any person affected thereby," either before or after the expiration of three years from rendition of such void judgment. Such motion is unhampered by a limitation of time. Pettis v. Johnston, 78 Okla. 277, 190 P. 681.

Erwin & Erwin and Ben Smith, for plaintiff in error.
A. E. Darnell, for defendant in error.

JONES, C.

¶1 This action was originally instituted by the appellee, as plaintiff, and against the appellant, as defendant, in the district court of Washita county, to secure judgment on a certain promissory note and to foreclose a real estate mortgage securing said note. The note and mortgage were executed in favor of the Oklahoma State National Bank, and thereafter assigned to the appellee, Fay State Bank. The mortgage covered a quarter section of land which was occupied as a homestead by the appellant, Aquilla G. Grubb. Plaintiff's petition among other things sets forth the fact that the defendant, Grubb, was at the time of the execution of said mortgage and note, a married man, and that his wife, Bertie Grubb, was hopelessly insane and confined in the state asylum and that the district court of Washita county on the 9th day of June, 1913, made an order finding the said Bertie Grubb, wife of the said defendant, Aquilla G. Grubb, to be insane, and authorized the said Aquilla G. Grubb to convey said real estate, and further alleges that said mortgage, referring to the mortgage here in question, was executed pursuant to and in conformity with said order.

¶2 No summons was issued or service of any kind had upon Bertie Grubb, the wife. She, in fact, was not made a party to the action. Summons was served upon the defendant, Aquilla G. Grubb, and on the 13th day of October, 1924, no appearance of any kind having been made for the defendant, a default judgment was rendered for the amount sued for, and foreclosure of the mortgage. Thereafter, on the 24th day of February, 1925, the appellant filed a petition and motion to vacate the judgment, and set forth the fact that the premises covered by said mortgage, and foreclosed upon, were the homestead of the defendant and his wife, Bertie Grubb; that no service was ever had upon the said Bertie Grubb, no guardian ad litem was appointed to represent the said Bertie Grubb, and further alleged that the defendant, Aquilla G. Grubb, has been adjudicated a bankrupt, and that said bankruptcy proceedings were pending at the time of the institution of this suit, and that the mortgage of the appellee was invalid and void, and of no force and effect, and that the judgment based thereon is also void for the reason that the wife of this appellant never joined therein, and that no proceedings were ever taken in the court authorizing appellant to execute said mortgage; that the proceedings referred to in plaintiff's petition were long prior to the transaction here in controversy, and were given for the express purpose of authorizing this appellant to execute a mortgage to one Vance at the time said order was issued, to wit, in 1913, and that said order did not authorize or pertain to the execution of the mortgage here in question. And that this appellant was on the 6th day of February, 1925, duly discharged in the bankruptcy proceedings from all debts and claims against the estate, and that by reason of such order the claim of the defendant in error has been discharged, and prays that said judgment be set aside and held for naught.

¶3 To the petition of the said Aquilla G. Grubb to vacate said judgment, the appellee filed a demurrer, and upon hearing of same the court sustained the demurrer, from which order the appellant prosecutes this appeal, and assigns as error the action of the court sustaining the demurrer upon the ground that the petition was not sufficient to state a cause of action, and insufficient to justify the vacation of the judgment complained of.

¶4 We are inclined to the opinion that the contention of appellant is correct, and that the trial court was in error in refusing to vacate said judgment. It is a well known and established rule of procedure in this jurisdiction that: