CHRISTIE-STEWART. INC. v. PASCHALL

CHRISTIE-STEWART. INC. v. PASCHALL
1974 OK 138
544 P.2d 505
Case Number: 43907
Decided: 11/05/1974
Supreme Court of Oklahoma

*CHRISTIE-STEWART, INC., A CORPORATION,
v.
WALTER B. PASCHALL, JR., ET AL., APPELLANTS, and R.H. VAUGHN ET AL., APPELLEES.

Christie-Stewart, Inc., has taken no part in these proceedings.

Upon remand from the Supreme Court of the United States, Paschall v. Christie-Stewart, Inc., 415 U.S. 100, 94 S. Ct. 313, 38 L. Ed. 2d 298, for the purpose of construing Appellants' rights under 12 O.S. 1951 § 93 (3) and (6); held that Appellants have abandoned rights to attack the judgment of the trial court on the question of statute of limitations.

Court of Appeals, Division 2, reversed; trial court affirmed.

William J. Legg, of Andrews, Mosburg, Davis, Elam, Legg & Bixler, Oklahoma City, for appellants.
Joe S. Rolston III, of Elliott, Woodard, Rolston & Kelley, Oklahoma City, for appellees.

DOOLIN, Justice.

¶1 We have been requested by remand from the U.S. Supreme Court in Paschall v. Christie-Stewart, Inc., 415 U.S. 100, 94 S. Ct. 313, 38 L. Ed. 2d 298, to decide:

". . . whether the appellants preserved the right to challenge the trial court's determination that the State's (Oklahoma's) statute of limitations

We answer the first question in the negative, and having so answered, believe it unnecessary to respond to the second inquiry.

¶2 For the purposes of this opinion we condense the fact situation as follows.

¶3 We further quote from the U.S. Supreme Court footnote 4 of Paschall v. Christie-Stewart, Inc., supra:

"Whether the alleged lack of constitutionally valid notice would preclude the running of the statute of limitations for an adverse land claim is a question that has not been presented to this Court or to the Oklahoma courts below. Cf. Schroeder v. City of New York, 371 U.S. 208, 213-214, 83 S. Ct. 279, 282, 283, 9 L. Ed. 2d 255, 259, 260 [89 A.L.R.2d 1398] (1962). We intimate no view on this issue."

We likewise express no opinion on this issue.

¶4 On appeal from the trial court's decision, the Court of Appeals, Division 2, reversed the trial court and held the tax sale procedures deficient under Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 70 S. Ct. 652, 94 L. Ed. 865 (1950). Upon certiorari to this Court we reversed the Court of Appeals and sustained the trial court's ruling. Thereafter on appeal to the U.S. Supreme Court, our judgment was vacated and the cause remanded as aforesaid.

¶5 We note at this point that the Appellant, although he included in his Petition in Error an attack upon the judgment of the trial court as to adverse possession under 12 O.S. 1951 § 93 (3) and (6), failed to advance said point or argue same in this Court or in the U.S. Supreme Court. Having failed to argue the possession question, it is waived; for we held in Hayward v. Ginn, 306 P.2d 320, 322 (Okl., 1957):

"Only those questions argued in the briefs are treated in this opinion, the others noted on the petition in error being deemed waived. Chicago, Rock Island & Pacific Ry. Co. v. State, 203 Okl. 659, 225 P.2d 363. . . ."

In Chancellor v. Chancellor, 202 Okl. 389, 214 P.2d 261 (1950), we held:

"Assignments of alleged error not presented in the briefs will be treated as abandoned."

See also Stinson v. Sherman, 405 P.2d 172 (1965); Harrington v. City of Tulsa, 120 Okl. 20, 39 P.2d 120 (1934); Ry. Express Agency v. Stephens, 183 Okl. 615, 83 P.2d 858 (1938); Klaus v. Fleming, 304 P.2d 990 (1956).

¶6 Since the judgment of this Court in Christie-Stewart, Inc. v. Paschall, 502 P.2d 1265 (Okl., 1972) has been vacated by Paschall v. Christie-Stewart, Inc., 414 U.S. 100, 94 S. Ct. 313, 38 L. Ed. 2d 298, this Court does now reverse the judgment of the Court of Appeals, Division 2 (Oklahoma) and affirms the judgment of the trial court for the reasons hereinabove stated.

¶7 Court of appeals, Division 2, reversed; trial court affirmed.

¶8 All Justices concur.

Footnotes:

1 12 O.S. 1961 § 93 reads in part:

"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."

2 68 O.S. 1951 §§ 382 and 432b ; see 68 O.S. 1971 §§ 24331 and 24312 as amended by S.B. No. 616, 34th Legislature, 1974 Oklahoma Session Laws, 34th Legislature, Second Regular Session, pg. 169.

3 For a complete discussion of the facts and background see Christie-Stewart, Inc. v. Paschall, 502 P.2d 1265 (Okl. 1972). Cf. Walker v. Hoffman, 405 P.2d 57 (Okl., 1965).