Heirshberg v. Slater

Heirshberg v. Slater
1992 OK 84
833 P.2d 269
63 OBJ 1824
Case Number: 73060
Decided: 06/23/1992
Supreme Court of Oklahoma

HARRY HEISHBERG, APPELLEE,
v.
BEN M. SLATER, LILA JO SLATER, MARY LEE HUGHES, RON KLEINS AND KAY KLEINS, APPELLANTS.

Appeal from the District Court.

Certiorari to the Court of Appeals, Division II Jari Askins, Trial Judge.

¶0 The trial court sustained the appellee's, Harry Heirshberg (Heirshberg/lessee), motion to dismiss finding that the time for appeal ran from its order dismissing the first motion for new trial rather than from the date it ruled on the attorney fee issue. The Court of Appeals reversed finding that the date of the trial court's decision on the attorney fee issue governed the time for appeal and that a petition for new trial filed pursuant to 12 O.S. 1981 § 655 did not require verification or supporting affidavits. We find that: 1) pursuant to 12 O.S. 1981 § 655 , service may be accomplished by the service and return of summons on the party or by notice to the attorney of record in the original cause; 2) under Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, an appellant may affect a timely appeal by filing a petition in error within thirty days of the trial court's denial of a motion for new trial on the merits of a judgment, or he/she may wait until after the trial court resolves a reserved attorney fee issue; 3) petitions for new trial filed pursuant to 12 O.S. 1981 § 655 need not be accompanied by an affidavit or contain specific allegations of due diligence; and 4) pursuant to 12 O.S. 1981 § 655 , a party filing a petition for new trial on grounds of newly discovered evidence is entitled to a hearing prior to dismissal of the petition.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT REVERSED.

Val R. Miller, Oklahoma City, for appellee.

Jack T. Crabtree, Robert S. Meier, Michael S. Kiefner, Oklahoma City, for appellants.

KAUGER, Justice.

[833 P.2d 270]

¶1 Four issues are presented by the petition for certiorari: 1) whether, pursuant to 12 O.S. 1981 § 655 ,

FACTS

¶2 On November 10, 1986, the jury returned a verdict in favor of the appellee, Harry Heirshberg (Heirshberg/lessee). Heirshberg also prevailed on a counterclaim against the appellant, Ben M. Slater (Slater/land owner). Slater filed a motion for new trial on November 13, 1986. Heirshberg filed an application for $15,450.00 in attorney fees on December 2, 1986. Reserving the attorney fee issue, the trial court denied Slater's motion for new trial by letter dated September 9, 1987. Slater did not appeal the denial of a new trial.

¶3 The trial court awarded Heirshberg $12,118.75 in attorneys fees on December 3, 1987. On December 2, 1988, Slater filed a petition for new trial on the basis of newly discovered evidence. Heirshberg filed a motion to dismiss the petition for new trial on January 23, 1989. Heirshberg asserted that the trial court lacked authority to grant the petition because of lack of service and because the petition was insufficient to support the award of a new trial.

I.

PURSUANT TO 12 O.S. 1981 § 655 , SERVICE MAY BE ACCOMPLISHED BY THE SERVICE AND RETURN OF SUMMONS ON THE PARTY OR BY NOTICE TO THE ATTORNEY OF RECORD IN THE ORIGINAL CAUSE.

¶4 Heirshberg argues that to accomplish service, Slater was required to have him personally served with summons. Slater insists that service may be accomplished pursuant to 12 O.S. 1981 § 655 by notice to the attorney of record in the original cause. We agree.

¶5 Title 12 O.S. 1981 § 655 provides that notice may be accomplished by a service of summons on the party or by serving the attorney of record in the original case.

II.

UNDER RULE 1.11, 12 O.S.SUPP. 1986, CH. 15, APP. 2, AN APPELLANT MAY AFFECT A TIMELY APPEAL BY FILING A PETITION IN ERROR WITHIN THIRTY DAYS OF THE TRIAL COURT'S DENIAL OF A MOTION FOR NEW TRIAL ON THE MERITS OF A JUDGMENT, OR HE/SHE MAY WAIT UNTIL AFTER THE COURT RESOLVES THE ATTORNEY FEE ISSUE.

¶6 Heirshberg insists that Slater's motion for new trial based on newly discovered evidence was untimely because it was filed more than a year after the trial court's judgment on the substantive issues. Slater [833 P.2d 273] asserts that under Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2,

¶7 In Timmons Oil Co. v. Norman, 794 P.2d 400-01 (Okla. 1990), we found that pursuant to Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2,

 

III.

PETITIONS FOR NEW TRIAL FILED PURSUANT TO 12 O.S. 1981 § 655 NEED NOT BE ACCOMPANIED BY AN AFFIDAVIT OR CONTAIN SPECIFIC ALLEGATIONS OF DUE DILIGENCE.

¶8 Heirshberg argues that the motion for [833 P.2d 274] new trial was insufficient because it was not accompanied by a supporting affidavit and did not contain specific allegations of due diligence. Slater contends that a petition for new trial, unlike a motion for new trial, need not be accompanied by an affidavit and that there is no requirement to plead due diligence with particularity.

¶9 Although 12 O.S. 1981 § 654

". . . Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. . . ."

Additionally, pleadings need contain only a short and plain statement of the claims showing that the pleader is entitled to relief.

 

[833 P.2d 275]

IV.

PURSUANT TO 12 O.S. 1981 § 655 , A PARTY FILING A PETITION FOR NEW TRIAL ON GROUNDS, OF NEWLY DISCOVERED EVIDENCE IS ENTITLED TO A HEARING PRIOR TO DISMISSAL OF THE PETITION.

¶10 Heirshberg contends that the petition for new trial was procedurally insufficient to support the grant of a new trial.

¶11 Title 12 O.S. 1981 § 655 provides in pertinent part:

". . . The facts stated in the petition shall be considered as denied without answer, and the case shall be heard and summarily decided after the expiration of twenty (20) days from such service and not more than sixty (60) days after such service, and the witnesses shall be examined in open court, or their depositions taken as in other cases . . ." (Emphasis supplied.)

The determination of legislative intent controls judicial statutory interpretation; however, it is unnecessary to apply rules of construction to discern Legislative intent if the will is clearly expressed.

¶12 Slater is entitled to a hearing on the petition for new trial. However, we express no opinion as to whether, after the hearing, the petition should be allowed.

¶13 CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT REVERSED.

¶14 HODGES, V.C.J., and HARGRAVE, SUMMERS and WATT, JJ. concur.

¶15 ALMA WILSON, J., concurs in part II, dissents from the remainder.

¶16 OPALA, C.J., and LAVENDER and SIMMS, JJ. dissent.

Footnotes:

1 Title 12 O.S. 1981 § 655 provides:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before but are discovered more than ten (10) days after the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of preparing a record for an appeal, without fault of the complaining party, arose more than ten (10) days after the judgment was rendered, the application may be made by petition filed in the original case, as in other case within thirty (30)days after such discovery or occurrence; on which a summons shall issue, be returnable and served, or publication made, as in the beginning of civil actions, or such service may be made on the attorney of record in the original case. The facts stated in the petition shall be considered as denied without answer, and the case shall be heard and summarily decided after the expiration of twenty (20) days from such service and not more than sixty (60) days after such service, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one (1) year after the final judgment was rendered."

Although § 655 was amended effective January 1, 1991, its provisions remain substantially identical to the 1981 statute.

2 Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2 provides in pertinent part:

". . . (d) Appeal after Allowance of Attorney Fees . . . (2) Where the trial court reserves ruling on the attorneys fee issue a party aggrieved by the trial court's decision on other questions may obtain review of such other questions by filing timely petition in error after the trial court's ruling on the attorneys fee issue. . . ."

See discussion, note 5, infra, on the effect of the amendment of Rule 1.11.

3 Title 12 O.S. 1981 § 655 , see note 1, supra.

4 Richardson v. Davis, 439 P.2d 949, 951 (Okla. 1968); 12 O.S. 1981 § 655 , see note 1, supra; E. Morgan, "Delayed Attacks on Final Judgments - Part II," 33 Okla.L.R. 738, 762 (1980). Heirshberg's attorney received notice of the petition and filed a motion to dismiss the petition on January 23, 1989.

5 Timmons Oil Co. v. Norman, 794 P.2d 400-01 (Okla. 1990); C. Percival, "Procedure: Effect of Attorney Fees on Finality of Judgment - Amendment to Rule 1.11(c)," 40 Okla.L.R. 145, 148 (1987). Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra.

We express no opinion on the effect of Rule 1.12(c), 12 O.S. 1991, Ch. 15, App. 2, on the holding of Timmons.

Rule 1.12, 12 O.S. 1991, Ch. 15, App. 2 provides in pertinent part:

". . . (c) Effect of Motion for New Trial and Other Post-Judgment Motions on Appeal Time. A post-judgment motion which seeks only a determination or award of costs, attorney's fees or interest, no matter when filed, shall not delay or extend the running of time to appeal the judgment. 12 O.S.Supp. 1990 §§ 1001 , 1004 . . . ."

We note that the two statutes referenced in Rule 1.12 have been repealed. 1991 Okla. Sess. Laws, Ch. 251, § 17, Section 22. See, C. Adams & M. Medina. "Recent Developments in Oklahoma Civil Appellate Procedure," 26 Tul.L.R. 489, 502 (1991).

6 Heirshberg's arguments include assertions that: 1) the petition should have had an affidavit attached; 2) the petition should have named the witnesses who would be called at a hearing; and 3) the petition should have contained specific facts supporting the exercise of due diligence in attempting to uncover the evidence to be presented at a new trial.

7 Timmons Oil Co. v. Norman, see note 5, supra, and accompanying discussion.

8 Richardson v. Davis, 439 P.2d 949, 951 (Okla. 1968); E. Morgan, "Delayed Attacks on Final Judgments - Part II," 33 Okla.L.R. 738, 762 (1980). Notice was given in open court in Richardson. The record in Richardson contains no evidence of the issuance of summons on the motion for new trial. Heirshberg's attorney received notice of the petition and filed a motion to dismiss the petition on January 23, 1989. Title 12 O.S. 1981 § 655 , see note 1, supra.

9 Title 12 O.S. 1961 § 655 provides in pertinent part:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of making a case-made, without fault of the complaining party, arose after said term, the application may be made by petition filed in the original case, as in other cases, not later than the second term after such discovery or occurrence; on which a summons shall issue, be returnable and served, or publication made, as in the beginning of civil actions, or such service may be made on the attorney of record in the original case . . . ."

10 Slater's response brief indicates that a summons was issued after objections were made concerning service. However, the record does not contain a copy of the summons. Slater is bound by the record presented for review. Snyder v. Smith Welding & Fabrication, 746 P.2d 168, 171 (Okla. 1986).

11 Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra.

12 Id.

13 C. Percival, "Procedure: Effect of Attorney Fees on Finality of Judgment - Amendment to Rule 1.11(c)," see note 5, supra; Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra.

The dissent relies upon Austin v. Curry, 651 P.2d 1320-21 (Okla. 1982) for the proposition that the only judgment in a cause is rendered at the time of the ruling on the merits. A final judgment pursuant to Austin is the judgment from which an appeal is taken. In Austin, the appellee tried to extend the time for filing a petition for new trial from the date this Court dismissed her appeal for lack of a record rather than from a ruling from the trial court on judgment. Here, Slater sought to file his petition for new trial based on a ruling recognized by Rule 1.11 - a rule promulgated by this Court - as an appealable judgment. Additionally, the dissent ignores this Court's ruling in Timmons Oil Co. v. Norman, see note 5, supra, in which we recognized that pursuant to Rule 1.11, 12 O.S.Supp. 1986, Ch. 15, App. 2, see note 2, supra, an appellant could affect a timely appeal by either filing a petition in error within thirty days of the trial court's denial of a motion for new trial on the merits of a judgment, or he/she could wait until after the trial court resolved the reserved attorney fee issue and file a petition in error within thirty days of the trial court's ruling on that issue.

We note that the rule pronounced today applies to the instant cause, but that Rule 1.11 no longer contains language specifically providing that an appeal may be taken either from a ruling on the merits or from a ruling on a reserved attorney fee issue. Rule 1.11, 12 O.S. 1991, Ch. 15, App. 2 provides in pertinent part:

"(a) Computation of Time for Commencement of Appeal. An appeal from a district court may be commenced only by filing a petition in error within thirty (30) days of the date of judgment (including final orders or decrees). The date of judgment shall be the date it was filed with the district court clerk; provided, however,

if the district court clerk or a party is directed to mail a file stamped copy of the judgment to the parties and the court record fails to show that such was performed within five (5) days, exclusive of weekends and holidays, the petition in error may be filed within thirty (30) days after a copy of the judgment was mailed to the appellant by either the clerk or another party, whichever the court record shows was earlier in time. . . ."

14 Title 12 O.S. 1981 § 654 provides:

"The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, seven, and nine of Section 5033, must be sustained by affidavits, showing their truth, and may be controverted by affidavits."

Title 12 O.S. 1981 § 651 provides in pertinent part:

"A new trial is a reexamination in the same court, of an issue of fact, or of law, either or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party: . .

. Seventh. Newly discovered evidence . . ."

The requirement that a motion for new trial, as opposed to a petition for new trial, be accompanied with supporting documents may be premised on the fact that there is less need for the presentation of evidence when a petition for new trial is filed because evidence may be presented at the hearing, see discussion pp. 10-11, infra.

15 Although some early cases indicate that a petition for new trial had to be verified or accompanied by an affidavit, those cases were promulgated prior to the enactment of the present procedural code. See, Wade v. Hope, 73 Okla. 289, 176 P. 402, 404 (1918); Dodson & Williams v. Parsons, 62 Okla. 298, 162 P. 1090-91 (1917). Despite the holding in these pre-code cases, at least one scholar recognized the difference between a petition and motion for new trial and suggested to practitioners that petitions for new trial need not be verified. W. Burdick, Ph.D., LL.B., New Trials & Appeals in Kansas & Oklahoma, § 117, p. 93 (Pipes-Reed 1907).

16 Title 12 O.S.Supp. 1987 § 2008 provides in pertinent part:

". . . A. CLAIMS FOR RELIEF. A pleading which sets forth a claim for relief . . . shall contain:

1. A short and plain statement of the claim showing that the pleader is entitled to relief . . ."

17 Title 12 O.S.Supp. 1987 § 2009 provides:

"PLEADING SPECIAL MATTERS.

A. CAPACITY. It is not necessary to aver the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity or the legal existence of an organized association of persons that is made a party. When a party desires to raise an issue as to the legal existence of any party or the capacity of any party to sue or be sued or the authority of a party to sue or be sued in a representative capacity, he shall do so by negative averment, which shall include such supporting particulars as are peculiarly within the pleader's knowledge, and he shall have the burden of proof on that issue.

B. FRAUD, MISTAKE, CONDITION OF THE MIND. In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally.

C. CONDITIONS PRECEDENT. In pleading the performance or occurrence of conditions precedent, it is sufficient to aver generally that all conditions precedent have been performed or have occurred. A denial of performance or occurrence shall be made specifically and with particularity.

D. OFFICIAL DOCUMENT OR ACT. In pleading an official document or official act it is sufficient to aver that the document was issued or the act done in compliance with law.

E. JUDGMENT. In pleading a judgment or decision of a domestic or foreign court, judicial or quasi-judicial tribunal, or of a board or officer, it is sufficient to aver the judgment or decision without setting forth matter showing jurisdiction to render it.

F. TIME AND PLACE. For the purpose of testing the sufficiency of a pleading, averments of time and place are material and shall be considered like all other averments of material matter.

G. SPECIAL DAMAGE. When items of special damage are claimed, their nature shall be specifically stated. In actions where exemplary or punitive damages are sought, the petition shall not state a dollar amount for damages sought to be recovered but shall state whether the amount of damages sought to be recovered is in excess of or not in excess of Ten Thousand Dollars ($10,000.00)."

18 See Heirshberg's assertions, note 6, supra.

19 Fuller v. Odom, 741 P.2d 449, 452 (Okla. 1987).

20 Id; McDonald's v. Groves, 652 P.2d 281-82 (Okla. 1982).

OPALA, Chief Justice, dissenting.

¶1 The court pronounces today that (a) a post-judgment ruling on attorney's fees under Rule 1.11(c)

I

A § 655 PETITION FOR NEW TRIAL TRIGGERS A SPECIAL POST-JUDGMENT PROCEEDING, WHICH REQUIRES THE PETITION TO BE VERIFIED AND SUPPORTED BY AFFIDAVITS

A.

The Statutory Regime Governing New Trial Quests

Prestatehood Kansas Jurisprudence

¶2 Oklahoma's statutory provisions [833 P.2d 277] governing new trial quests came from Kansas.

 

¶3 When we originally adopted the provision for a delayed new trial petition,

 

¶4 The originally adopted statute - our § 655's predecessor - remained unchanged until its 1968 amendment.

Oklahoma's jurisprudential and statutory law

¶5 The procedure for invoking new trial relief is found in §§ 651,

 

¶6 A § 655 petition triggers a special post-judgment proceeding governed solely by procedure set forth in that section, which must be read together with §§ 651(7) and (9),

 

[833 P.2d 279]

¶7 By an unbroken line of authority our jurisprudence has established that a new trial quest grounded on newly discovered evidence, whether by § 655 petition or § 651 motion, must be supported (a) by affidavits of witnesses showing the truthfulness of the matter alleged and (b) by a verified § 655 petition or § 651 motion stating that the evidence could not with reasonable diligence have been produced at trial.

 

B.

A § 655 Postjudgment Proceeding Is Not Governed By the Pleading Code

¶8 The § 655 postjudgment procedural regime was left undisturbed by the adoption of the Oklahoma Pleading Code of 1984.

 

II

A § 655 PETITION BROUGHT MORE THAN ONE-YEAR AFTER DENIAL OF A § 651 NEW TRIAL MOTION IS UNTIMELY

A.

A § 655 Proceeding Is Not Governed By Rule 1.11(c)

 

¶9 The court, relying on the language of Rule 1.11(c), now withdrawn and replaced,

 

¶10 The appealability of an adverse decision in a delayed attack on a judgment launched by a § 655 petition is governed by independent statutory time limits,

 

¶11 If today's interpretation of Rule 1.11(c) were correct, the court's decision would change the time limit for filing a § 655 petition. The court is powerless to postpone by a rule the point at which appeal time begins to run for review of a § 655 decision. A rule must follow statutory law, and whenever it is inconsistent with a legislative enactment, the statute will prevail.

 

¶12 Moreover, today's construction of Rule 1.11(c) would also operate to extend the [833 P.2d 281] time for bringing postjudgment vacation proceedings by a § 1031.1

B.

The Austin v. Curry

¶13 The Austin parameters govern the law in force at the time of the judgment here under review as well as today's law. Austin teaches that the one-year time limit for bringing a § 655 proceeding is triggered by the point when the judgment to be set aside first becomes appealable. In the case of a timely § 651 new trial motion,

 

¶14 The judgment in this case first became appealable when the § 651 motion was [833 P.2d 282] denied on September 9, 1987. The § 655 petition came too late. It was filed December 2, 1988, more than one year after September 9. The pre-1991 law, which was in effect at the time of this judgment's rendition, made denial of new trial effective from its pronouncement.

 

C.

A Postjudgment Ruling On A Party's Quest For Attorney's Fees Does Not Extend The Time To Appeal From An Adverse Decision In A § 655 Proceeding

¶15 The post-Austin adoption in 1986 of Rule 1.11(c) did not change the time frame for an appeal from an adverse ruling on a § 655 proceeding. A § 655 ruling generates a quest for review that is totally independent of an appeal for review of the judgment. A postjudgment ruling on counsel-fee quest did not hence extend the time for this petitioner's appeal from the denial of relief under § 655.

¶16 Our jurisprudence is clear that special postjudgment proceedings are entirely independent of corrective relief sought by appeal from the judgment. In Matter of Estate of Burkhart v. Wabaunsee

 

¶17 The same reasoning applies here. Rule 1.11(c) did not make a judgment unappealable when a counsel-fee motion remained pending. It merely allowed an appeal for review of the judgment to be postponed at the option of the appellant. Now, as before under the teachings of Austin, denial of the § 651 motion triggers the one-year limit for a § 655 petition's filing.

III

A § 655 PETITION THAT IS FACIALLY INSUFFICIENT TO CHALLENGE A JUDICIAL INQUIRY DOES NOT WARRANT A HEARING ON THE NEW TRIAL QUEST

¶18 An unverified § 655 petition that facially shows itself to be too late when measured by the Austin teachings is insufficient to challenge a judicial inquiry into the new trial quest and hence does not call for a hearing. Any facially deficient court-filed paper which does not challenge judicial inquiry is dismissible sans hearing.

SUMMARY

¶19 The Pleading Code of 1984 does not govern the § 655 postjudgment proceedings. A § 655 petition triggers a special proceedings governed solely by the procedure set forth in that section, read together with §§ 651, 653, and 654. The applicable statutory regime requires that a § 655 petition on grounds of newly discovered evidence be verified and supported by affidavits. Under the remedial parameters of Austin the one-year time limit to file a § 655 proceeding is triggered by the point when the judgment to be set aside for new trial first becomes appealable. This occurred here when the trial judge orally denied the § 651 new trial motion. A postjudgment ruling on attorney's fees does not extend the time to appeal from the denial of § 655 relief. If it were otherwise, the rule would contravene our statutory remedial regime for delayed attacks on judgments and hence be deemed infirm. Because the § 655 petition was filed in this case more than one year after the judgment first became appealable and is neither verified nor supported by affidavits, it does not challenge judicial inquiry. Petitioners clearly were not entitled to a hearing.

¶20 I would hence affirm the trial judge's postjudgment order dismissing the facially deficient § 655 petition.

Footnotes:

1 The terms of Rule 1.11(c), Rules on Perfecting a Civil Appeal, 12 O.S.Supp. 1987, Ch. 15, App. 2, were:

"Failure of the trial court to award attorney fee in any action shall not prevent a party aggrieved by the trial court's decision of all other questions from seeking a review of such judgment in this court by the timely filing of a petition in error. The trial court may determine the issue as to attorney fees after the appeal has been lodged or may reserve such issue and determine the same, together with an application for appellate related legal services, after remand of the matter from this court."

The terms of Rule 1.11(d)(2) were:

"Where the trial court reserves ruling on the attorneys fee issue a party aggrieved by the trial court's decision on other questions may obtain review of such other questions by filing timely petition in error after the trial court's ruling on the attorneys fee issue."

Rule 1.11's amendment in 1990, eff. Jan. 1, 1991, does not affect the issues in this case. For an in-depth discussion of the legal effect of this amendment, see infra note 42.

2 The terms of 12 O.S. 1981 § 655 provided in pertinent part:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before but are discovered more than ten (10) days after the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of preparing a record for an appeal, without fault of the complaining party, arose more than ten (10) days after the judgment was rendered, the application may be made by petition filed in the original case, as in other cases, within thirty (30) days after such discovery or occurrence . . . but no such petition shall be filed more than one (1) year after the final judgment was rendered." (Emphasis mine.)

Section § 655's amendment in 1990 (Okl.Sess.L 1990, Ch. 251, § 11, eff. Jan. 1, 1991) does not affect the issues in this case.

3 The terms of 12 O.S. 1991 § 651 are:

"A new trial is a reexamination in the same court, of an issue of fact, or of law, either or both, after a verdict by a jury, the approval of the report of a referee, or a decision by the court. The former verdict, report or decision shall be vacated, and a new trial granted, on the application of the party aggrieved, for any of the following causes, affecting materially the substantial rights of such party:

First. Irregularity in the proceedings of the court, jury, referee, or prevailing party, or any order of the court or referee, or abuse of discretion, by which the party was prevented from having a fair trial.

Second. Misconduct of the jury or prevailing party.

Third. Accident or surprise, which ordinary prudence could not have guarded against.

Fourth. Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice.

Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property.

Sixth. That the verdict, report or decision is not sustained by sufficient evidence, or is contrary to law.

Seventh. Newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial

Eighth. Error of law occurring at the trial, and excepted to by the party making the application.

Ninth. When, without fault of complaining party, it becomes impossible to make case made

4 For the text of 12 O.S. 1981 § 655 , see supra note 2. Austin v. Curry, Okl., 651 P.2d 1320, 1321 (1982), holds that the one-year time limit for bringing a § 655 proceeding runs from the denial of a § 651 motion for new trial.

5 See supra note 3 for the text of § 651(7) and (9).

6 The terms of 12 O.S. 1981 § 653 provided:

"Unless unavoidably prevented, the application for a new trial, if made, must be filed within ten (10) days after the verdict, report or decision is rendered regardless of whether or not the term has ended, except for the cause of newly-discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made." (Emphasis mine.)

Section 653's amendments in 1990 and 1991 (Okl.Sess.L. 1990, Ch. 251, § 10, eff. Jan. 1, 1991; Okl.Sess.L. 1991, Ch. 251, § 5, eff. June 1, 1991) do not affect the issues in this case.

7 The terms of 12 O.S. 1991 § 654 are:

"The application must be by motion, upon written grounds, filed at the time of making the motion. The causes enumerated in subdivisions two, three, seven and nine of Section 5033 [§ 651], must be sustained by affidavits, showing their truth, and may be controverted by affidavits." (Emphasis mine.)

8 Wade v. Hope, 73 Okl. 289, 176 P. 402 (syllabus 2) (1918).

9 United States v. Choctaw, O. & G.R. Co., 3 Okl. 404, 41 P. 729, 749 (1895).

10 Lee Way Motor Freight, Inc. v. Welch, Okl., 764 P.2d 191, 195 n. 14 (1988); Matter of Estate of Speake, Okl., 743 P.2d 648, 650 n. 5 (1987); Atlantic Richfield Co. v. State, Okl., 659 P.2d 930, 934 (1983); Horath v. Pierce, Okl., 506 P.2d 548, 554 (1973).

11 See R.L. 1910, § 5037. At the time of the statute's adoption, the Kansas law's source was referenced in our compilation as Gen.St.Kan. 1889, par. 4405.

The terms of the adopted statute (R.L. 1910, § 5037) provided:

"Where the grounds for a new trial could not with reasonable diligence have been discovered before, but are discovered after the term at which the verdict or decision was rendered or made or report of the referee approved, or where the impossibility of making a case-made, without fault of the complaining party, arose after said term, the application may be made by petition filed in the original case, as in other cases, not later than the second term after such discovery or occurrence; on which a summons shall issue, be returnable and served, or publication made, as in the beginning of civil actions, or such service may be made on the attorney of record in the original case. The facts stated in the petition shall be considered as denied without answer, and if the service shall be complete in vacation, the case shall be heard and summarily decided at the ensuing term, and if in term, it shall be heard and decided after the expiration of twenty days from such service. The case shall be placed on the trial docket, and the witnesses shall be examined in open court, or their depositions taken as in other cases; but no such petition shall be filed more than one year after the final judgment was rendered."

12 St. Louis & San Fran. Railroad Co. v. Gaston, 67 Kan. 217, 223, 72 P. 777, 779 (1903); see W.L. BURDICK NEW TRIALS AND APPEALS IN KANSAS AND OKLAHOMA. § 114 at 89 (Pipes-Reed 1907).

13 Moody v. Branham, 47 Kan. 314, 27 P. 975 (1891); see BURDICK, supra note 12, § 117 at 93.

14 Gen.St.Kan. (1901), § 4757. For prestatehood Kansas jurisprudence requiring affidavits for new trial motions, see Atchison, T. & S.F.R. Co. v. Rowan, 55 Kan. 270, 39 P. 1010, 1015-1016 (1895); Branner v. Nichols, 61 Kan. 356, 59 P. 633 (syllabus 5) (1900); Parrish v. Parrish, 67 Kan. 323, 72 P. 844, 846 (1903); see BURDICK, supra note 12, § 105 at 75, § 106 at 77, § 112 at 86. Implicit in prestatehood Kansas jurisprudence is the assumption that affidavits are required for new trial petitions. See Soper v. Medberry, 24 Kan. 95 (1880); Sexton v. Lamb, 27 Kan. 432 (1882); McMullen v. Winfield Building & Loan Ass'n, 4 Kan. App. 459, 46 P. 410 (1896); see also BURDICK, supra note 12, § 117 at 93.

15 For the text of 12 O.S. 1991 § 654 see supra note 7; see Jones v. Eppler, Okl., 266 P.2d 451, 459 (1954); Zusman v. First State Bank of Lovell, 178 Okl. 330, 63 P.2d 760, 763-764 (1936); Peters v. White, 169 Okl. 640, 38 P.2d 523, 526 (1934); Wade v. Hope, supra note 8.

16 Oklahoma jurisprudence requires the affidavits to be attached to the petition. Wade v. Hope, supra note 8; Bellis v. Radabaugh, 134 Okl. 9, 272 P. 423 (syllabus 1) (1928). In Kansas, the affidavits may be presented at the hearing. Werner v. Edmiston, 24 Kan. 109 (1880).

17 Horath v. Pierce, supra note 10 at 553; Ballard v. Christian, Okl., 451 P.2d 943, 945 (1969); Larkin v. Hiittenmeyer, 195 Okl. 669, 161 P.2d 749, 750-751 (1945); McCain v. State Election Board, 144 Okl. 85, 289 P. 759, 762-763 (1930).

18 Couch v. International Broth. of Teamsters, Okl., 302 P.2d 117, 119 (1956).

19 Horath v. Pierce, supra note 10 at 553; Larkin v. Hiittenmeyer, supra note 17 at 161 P.2d 751.

20 For the adopted version of § 655, see R.L. 1910, § 5037, supra note 11; for the 1969 version of § 655 applicable to this controversy, see supra note 2.

21 The statutory regime establishing terms of courts was abolished in 1968 (Okl.Sess.L. 1968, Ch. 162, § 8) and 1969 (Okl.Sess.L. 1969, Ch. 134, § 2). For some of the terms-of-court statutes that were repealed, see 20 O.S. 1961 § 95 (district court), 20 O.S. 1961 § 657 (court of common pleas), 20 O.S. 1961 § 164 (superior court), and 20 O.S. 1961 § 280 (county court).

22 For the text of 12 O.S. 1991 § 651 see supra note 3.

23 For the text of 12 O.S. 1981 § 653 see supra note 6.

24 For the text of 12 O.S. 1991 § 654 see supra note 7.

25 For the text of 12 O.S. 1981 § 655 see supra note 2.

26 A new trial quest must be reviewed in conjunction with the statutory scheme, and an "application for new trial" (whether by motion or petition) "must substantially comply with the statutes." Southern Kansas Stage Lines Co. v. Wynne, 178 Okl. 440, 63 P.2d 68, 69 (1936).

27 For the text of 12 O.S. 1991 § 651 (7) and (9), see supra note 3.

28 See supra note 2 for the pertinent text of 12 O.S. 1981 § 655 .

29 For the text of 12 O.S. 1991 § 654 , see supra note 7.

30 For the text of 12 O.S. 1981 § 653 , see supra note 6.

31 For the text of 12 O.S. 1981 § 655 , see supra note 2; Austin v. Curry, supra note 4 at 1321.

32 See 12 O.S. 1981 § 653 , supra note 6.

33 12 O.S. 1991 § 651 , supra note 3. A § 651 motion on grounds enumerated in subdivisions 2 (misconduct), 3 (accident or surprise), 7 (newly discovered evidence) and 9 (impossibility of making a record), must also comply with the terms of § 654, supra note 7. The latter section requires that a new trial quest pressed on these grounds be supported by affidavits. Oklahoma jurisprudence calls for the motion to be verified. Jones v. Eppler, supra note 15 at 459; Zusman v. First State Bank of Lovell, supra note 15 at 63 P.2d 763-764; Peters v. White, supra note 15 at 38 P.2d 526.

34 Wade v. Hope, supra note 8; Jones v. Eppler, supra note 15 at 459; Zusman v. First State Bank of Lovell, supra note 15 at 63 P.2d 763-764; Peters v. White, supra note 15 at 38 P.2d 526. In Bellis v. Radabaugh, supra note 16 at 272 P. 423 (syllabus 1), the court held that the new trial quest must be verified, showing the truth of the matters alleged. The court stated that "it is not enough to attach an affidavit of the witness, leaving the allegations as to diligence . . . unverified." (Emphasis mine.)

Wade, supra note 8 was criticized in E.D. MORGAN, DELAYED ATTACKS ON FINAL JUDGMENTS, PART II, 33 Okl.L.Rev. 737, 761 (1980). Prof. Morgan's critique seems to be misplaced since Wade is compatible with the remedial regime, then extant, which required that an affidavit include extra-record facts sought to be used in vacation proceedings to demonstrate an infirmity in the judgment. 12 O.S. 1991 § 1033 ; 12 O.S. 1981 § 176 (default judgments, repealed in 1984); 58 O.S. 1991 § 723 (probate proceedings). In this case the defendant did not challenge Wade's continued vitality. Even if Prof. Morgan were correct in his critique, overruling long-established jurisprudence sua sponte would be most imprudent in this case. See in this connection State ex rel. Okl. Bar Ass'n v. Lobaugh, Okl., 781 P.2d 806, 813 (1988) (Opala, J., dissenting), and Davis v. B.F. Goodrich, Okl., 826 P.2d 587, 592, 593-594 n. 12 (1992) (Opala, C.J., concurring), for a discussion of limits on sua sponte use of appellate reversal power. This is not the proper case in which to revisit the correctness of Wade's underpinnings.

35 Bryan v. Ramsey, 115 Okl. 133, 242 P. 222, 224 (1925).

36 12 O.S. 1991 §§ 2001 et seq. The Pleading Code was adopted in 1984 (Okl.Sess.L. 1984, Ch. 164, §§ 1 et seq., eff. Nov. 1, 1984).

37 Board of Law Library Trustees v. State ex rel. Tom Petuskey, Okl., 825 P.2d 1285, 1288 [1992]. In Petuskey we held that a public-law court fund claim "moves along a procedural track vastly different from an `action' on a claim governed by the Pleading Code . . . and by the rules of practice applicable to the ordinary process of adjudication." Id. at 1288.

38 Section 2011 of the Pleading Code, which provides that "pleadings need not be verified or accompanied by affidavit," is not applicable to the § 655 postjudgment procedural regime.

39 Petuskey, supra note 37 at 1288 n. 11, observes that the Pleading Code does not apply to many classes of proceedings which are not "actions" governed by the district court's process of ordinary judicature. See, e.g., the Uniform Adoption Act, 10 O.S. 1991 §§ 60.1 et seq.; the provisions of 10 O.S. 1991 §§ 1101 -1506 , commonly known as the "Juvenile Code" or "Children's Code;" statutes governing filiation proceedings, 10 O.S.Supp. 1989 § 70 et seq.; probate procedure, 58 O.S. 1991 § 1 et seq., and condemnation proceedings for highways, 68 O.S. 1991 § 1708 , and railroads, 66 O.S. 1991 § 51 et seq.

40 Wade v. Hope, supra note 8; Bellis v. Radabaugh, supra note 16.

41 For the terms of Rule 1.11(c), now abrogated, see supra note 1.

42 Rule 1.11(c) was withdrawn and replaced by Rules 1.11(a) and 1.12(c), Rules on Perfecting a Civil Appeal, 12 O.S. 1991, Ch. 15, App. 2, (as amended by order of Dec. 20, 1990, eff. Jan. 1, 1991), infra. Rules 1.11(a) and 1.12(c) do not now allow an appeal to be postponed until disposition has been made of a postjudgment motion for counsel-fee award. Rule 1.11(c) was abrogated because, by the enactment of 12 O.S.Supp. 1990 §§ 1001

and 1004, effective January 1, 1991, it was no longer possible to delay the perfection of an appeal from a judgment by a motion for counsel-fee award. Sections 1001 and 1004 had a five-month life span; they were repealed effective June 1, 1991. Our rules, which were based on these statutes, remain unchanged.

Rule 1.11(a), supra, states in pertinent part:

"An appeal from a district court may be commenced only by filing a petition in error within thirty (30) days of the date of judgment (including final orders or decrees). The date of judgment shall be the date it was filed with the district court clerk. . . ." (Emphasis added.)

The pertinent terms of Rule 1.12(c), supra, are:

"A post-judgment motion which seeks only a determination or award of costs, attorney's fees or interest, no matter when filed, shall not delay or extend the running of time to appeal the judgment. 12 O.S.Supp. 1990 §§ 1001 , 1004. * * *"

43 Austin v. Curry, supra note 4.

44 For the time limits for bringing a § 655 petition, see supra note 2. For the time limits for bringing postjudgment vacation proceedings by § 1031.1 motion and § 1031 motion or petition, see § 1031.1, infra note 49, and § 1038, infra note 50. Proceedings under these statutes, like § 655 proceedings, are delayed attacks on the judgment. See MORGAN, supra note 34 at 738-747.

45 Under Rule 1.11(c), supra note 1, and (d)(1), a timely appeal can be lodged by a petition in error brought within thirty days of the denial of a § 651 motion. In the alternative, pursuant to the terms of subsection (d)(2), supra note 1, where the trial court reserves ruling on counsel fees, an appellant can wait until disposition of the undetermined fee issue and then, within thirty days following that issue's resolution, file a petition in error for review of errors in both of these two consecutive decisions. See Timmons Oil Co., Inc. v. Norman, Okl., 794 P.2d 400, 401-402 (1990) (Opala, V.C.J., dissenting).

The court relies on Timmons Oil Co., Inc. v. Norman, supra at 401, for the conclusion that the § 655 petition was timely filed. Timmons is not applicable to the present controversy. There, the court dealt solely with whether, conformably to Rule 1.11, the appellant's petition in error was filed timely to tender for our review either the initial decision or a later ruling on attorney's fees. Although Timmons notes that an appeal may be by a timely petition to review a postjudgment counsel-fee award, that issue differs entirely from the one presented here. This case is governed by Austin v. Curry, supra note 4. For an in-depth discussion of the Austin parameters, see Part II(B), infra.

46 Insofar as Rule 1.11(c), supra note 1, might be viewed as conflicting with § 655, the statute must control. Hulsey v. Mid-American Preferred Ins. Co., Okl., 777 P.2d 932, 936 n. 9 (1989); Oklahoma County Sheriff v. Hunter, Okl., 615 P.2d 1007, 1008 (1980); Transok Pipe Line Company v. Darks, Okl., 515 P.2d 218, 219 (1973).

47 The provisions of 12 O.S. 1991 § 1031.1 are:

"Within thirty (30) days after the rendition of a judgment, the court, of its own initiative or on motion of a party, may correct, open, modify or vacate a judgment. The court may prescribe what notice, if any, shall be given."

48 The terms of 12 O.S. 1991 § 1031 provide:

"The district court shall have power to vacate or modify its own judgments or orders within the times prescribed hereafter:

First. By granting a new trial for the cause, within the time and in the manner prescribed in Section 653 of this title.

Second. By a new trial granted in proceedings against defendants constructively summoned, as provided in Section 176 of this title.

Third. For mistake, neglect or omission of the clerk or irregularity in obtaining a judgment or order.

Fourth. For fraud, practiced by the successful party, in obtaining a judgment or order.

Fifth. For erroneous proceedings against an infant, or a person of unsound mind, where the condition of such defendant does not appear in the record, nor the error in the proceedings.

Sixth. For the death of one of the parties before the judgment in the action.

Seventh. For unavoidable casualty or misfortune, preventing the party from prosecuting or defending.

Eighth. For errors in a judgment, shown by an infant in twelve (12) months after arriving at full age, as prescribed in Section 700 of this title.

Ninth. For taking judgments upon warrants of attorney for more than was due to the plaintiff, when the defendant was not summoned or otherwise legally notified of the time and place of taking such judgment." (Emphasis mine.)

49 The pertinent provisions of 12 O.S. 1991 § 1032 are:

"The proceedings to correct mistakes or omissions of the clerk, or irregularity in obtaining a judgment or order, shall be by motion, upon reasonable notice to the adverse party or his attorney in the action. The motion to vacate a judgment because of its rendition before the action regularly stood for trial can be made only within three (3) months after the rendition of said judgment." (Emphasis added.)

50 The pertinent provisions of 12 O.S. 1991 § 1038 are:

"Proceedings to vacate or modify a judgment or order, for the causes mentioned in paragraphs 4, 5 and 7 of Section 1031 of this title must be commenced within two (2) years after the judgment was rendered or order made, unless the party entitled thereto be an infant, or a person of unsound mind and then within two (2) years after removal of such disability. Proceedings for the causes mentioned in paragraphs 3 and 6 of Section 1031 of this title, shall be within three (3) years, and in paragraph 9 of Section 1031 of this title, within one (1) year after the defendant has notice of the judgment. A void judgment may be vacated at any time, on motion of a party, or any person affected thereby." (Emphasis mine.)

51 Supra note 4. In Austin, as in the present case, the § 655 petition was filed more than one year after the § 651 motion for new trial was denied.

52 See supra note 3 for the text of § 651.

53 A timely-filed § 651 motion extends appeal time and, on its denial, if error was properly preserved, the movant can secure full review of the entire judgment and of all proceedings that led to it. Schepp v. Hess, Okl., 770 P.2d 34, 36 n. 2 (1989). By contrast, appeal time is not extended by any postdecisional quest for relief under (1) § 1031, supra note 48, or § 1031.1 (term-time), supra note 47, to vacate, modify or correct a decision, or (2) § 655, supra note 2, for new trial. In an appeal from §§ 1031, 1031.1 or 655 dispositions, review is confined to the correctness of the trial court's response in granting or denying the relief that was sought. Yery v. Yery, Okl., 629 P.2d 357, 363 (1981); Salyer v. National Trailer Convoy, Inc., Okl., 727 P.2d 1361, 1362 (1986).

54 The then-effective court rule, Rule 1.11(a), 12 O.S. 1981, Ch. 15, App. 2, stated: "Time for commencement of an appeal to review a final judgment or final order of the district court shall run from the day the decision is rendered." (Emphasis mine.) In Warehouse Market, Inc. v. Berry, Okl., 459 P.2d 853, 854 (1969), we held that "[j]udgment is rendered when pronounced by the trial court and the journal entry is only a record thereof." See also 12 O.S. 1981 § 655 , supra note 2, the pre-1991 version of § 655 which governs this case.

55 The pertinent terms of 12 O.S. 1991 § 990A (A) (as amended by Okl.Sess.L. 1991, Ch. 251, § 15, eff. June 1, 1991) are:

"An appeal to the Supreme Court may be commenced by filing a petition in error with the Clerk of the Supreme Court within thirty (30) days from the date the final order or judgment is filed . . . ." (Emphasis mine.)

The terms of 12 O.S. 1991 § 655 (as amended by Okl.Sess.L. 1990, Ch. 251, § 11, eff. Jan. 1, 1991) provide in pertinent part:

". . . but no such [§ 655 petition] shall be filed more than one (1) year after the filing of final judgment." (Emphasis mine.)

See Rules 1.11(a) and 1.12(c), Rules on Perfecting a Civil Appeal, 12 O.S. 1991, Ch. 15, App. 2 (as amended by order of Dec. 20, 1990, eff. Jan. 1, 1991), supra note 42.

56 Okl., 594 P.2d 361, 363 (1979).

57 Supra note 53.

58 Supra note 53.

59 For the text of 12 O.S. 1991 § 1031 , see supra note 48.

60 For the text of 12 O.S. 1991 § 1031.1 , see supra note 47.

61 Okl., 818 P.2d 900(1991). Barton Industries dealt with an appeal from denial of motion to vacate default judgment against one of several defendants, leaving the remaining defendants in the pending action.

62 The terms of 12 O.S. 1991 § 1006 provide:

"When more than one claim for relief is presented in an action, whether as a claim, counterclaim, cross-claim, or third-party claim, or when multiple parties are involved, the court may direct the preparation and filing of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination that there is no just reason for delay and upon an express direction for the filing of judgment. In the absence of such determination and direction, any order or other form of decision, however designated, which adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties shall not terminate the action as to any of the claims or parties, and the order or other form of decision is subject to revision at any time before the judgment adjudicating all the claims and the rights and liabilities of all the parties is filed with the court clerk."

63 In Barton Industries, supra note 61 at 900, we held that in appeals from postjudgment vacation proceedings, our inquiry focuses not "on the underlying judgment, but rather on the correctness of the trial court's response to the motion to vacate, which is an independently appealable postjudgment event." (Emphasis mine.)

64 Yery v. Yery, supra note 53 at 363.

65 See, e.g., Wade v. Hope, supra note 8, where we affirmed the trial court's dismissal of the § 655 petition on grounds it neither was verified nor stated facts sufficient to entitle the petitioner to new trial relief.