Samuels v. Granite Sav. Bank T. Co.

13 Citing cases

  1. Weimer v. Augustana Pension and Aid Fund

    67 P.2d 436 (Okla. 1937)   Cited 8 times

    It is settled in this state and very generally elsewhere that a judgment is void only when a jurisdictional defect appears on the face of the record. Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Adams v. Carson, 165 Okla. 161, 25 P.2d 653: B-R Electric Telephone Mfg. Co. v. Town of Wewoka, 113 Okla. 225, 239 P. 919; Samuels v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145. The judgment for which vacation is authorized by section 563, O. S. 1931, is one void on its face.

  2. Perkins v. Masek

    1961 OK 187 (Okla. 1961)   Cited 3 times

    This finding accords with the judgment roll in No. 20,423. In Samuels v. Granite Sav. Bank Trust Co. et al., 150 Okla. 174, 1 P.2d 145, this is said in the first paragraph of the syllabus: "Where service is obtained by publication, and the judgment recites `that each and all of the defendants have been lawfully served by publication, and notified to appear and answer in said cause,' and there is nothing on the face of the record to show irregularity of the service, an attack on the judgment as being void because of failure to make and file affidavit as required by Section 252, C.O.S. 1921, can only be made under the third subdivision of section 810, C.O.S. 1921."

  3. Glenn v. Yoder

    1959 OK 75 (Okla. 1959)   Cited 1 times

    Parties will not be permitted to inject new issues in this court which were not raised or argued in the trial court. Fast v. Gilbert, 102 Okla. 245, 229 P. 275, and Samuels v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145. The second proposition argued by defendant is that the trial court committed reversible error in allowing interpleaders to introduce incompetent, irrelevant and immaterial testimony concerning boundary line established by parol agreement which varied the terms of a written obligation.

  4. Lowe v. Baskett

    311 P.2d 219 (Okla. 1957)   Cited 1 times

    It is contended, in support of the order of dismissal, that plaintiff's action was a proceeding to vacate a default judgment on grounds specified in the third subdivision of 12 O.S. 1951 § 1031[ 12-1031], and as such must have been by motion and notice in the same action in which it was entered. The cases of Vinson v. Oklahoma City, 179 Okla. 590, 66 P.2d 933; Woodley v. McKee, 101 Okla. 120, 223 P. 346; Crowther v. Schoonover, 130 Okla. 249, 266 P. 777; Samuels v. Granite Sav. Bank Trust Co., 150 Okla. 174, 1 P.2d 145, are cited in support of this conclusion. The second paragraph of the syllabus by the court in Vinson v. Oklahoma City, supra, is quoted as expressing the applicable rule.

  5. Fitzsimmons v. Oklahoma City

    192 Okla. 248 (Okla. 1943)   Cited 22 times
    In Fitzsimmons v. Oklahoma City, 192 Okla. 248, 135 P.2d 260, we held that a judgment is no less conclusive because it is based upon a mistake of law.

    This court has repeatedly applied this rule to service of process and jurisdiction of the parties. See Continental Gin Co. v. De Bord, 34 Okla. 66, 123 P. 159; Daugherty v. Feland, 59 Okla. 122, 157 P. 1144; Pettis v. Johnston, 78 Okla. 277, 190 P. 681; Samuels v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145; Yahola Oil Co. v. Causey, 181 Okla. 129, 72 P.2d 817; Collingsworth v. Hutchison, 185 Okla. 101, 90 P.2d 416; May, Adm'r, et al. v. Casker, 188 Okla. 448, 110 P.2d 287; Crouch v. Crouch, 191 Okla. 74, 126 P.2d 994. The defendants' contention is predicated upon the proposition that the judgment of December 11, 1920, is void because of the invalidity of the statute under which it was rendered.

  6. Vinson v. Oklahoma City

    179 Okla. 590 (Okla. 1937)   Cited 22 times

    Young v. Campbell (1932) 160 Okla. 265, 16 P.2d 65. It is true that the mailing of the petition and notice must actually be made, unless an affidavit is filed showing that the residence or place of business of the defendant cannot be ascertained. But where the journal entry of judgment recites that the service is proper, the judgment is valid on its face, and the attack on this ground can only be made under the third subdivision of section 556, O. S. 1931, and must be made within three years after the rendition of the judgment as provided in section 563, O. S. 1931. Crowther v. Schoonover (1928) 130 Okla. 249, 266 P. 777; Samuels v. Granite Savings Bank Trust Co. (1931) 150 Okla. 174, 1 P.2d 145. The cases of Stumpff v. Price (1919) 74 Okla. 117, 177 P. 109, and Dow v. Cowley-Frye Lumber Co. (1926) 119 Okla. 60, 247 P. 1109, holding the judgment void, are not in conflict with this holding.

  7. Davis v. Exchange Trust Co.

    46 P.2d 522 (Okla. 1935)

    "If a judgment of a district court is void and its invalidity is apparent upon the face of the judgment roll, it may be vacated at any time upon a motion of a party, or any person affected thereby, but is it is necessary to resort to extrinsic evidence to show the invalidity thereof, the attack must be made thereon within three years following the rendition of the judgment or order, or within the time limited by section 563, O. S. 1931 (817, C. O. S. 1921)." See, also, Samules v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145; Crowther v. Schoonover, 130 Okla. 249, 266 P. 777; Woodley v. Mckee, 101 Okla. 120, 223 P. 346. These cases follow Pettis v. Johnston, 78 Okla. 277, 190 P. 681, wherein this court said:

  8. Steiner v. Hughes

    44 P.2d 857 (Okla. 1935)   Cited 8 times
    In Steiner v. Hughes, 172 Okla. 268, 44 P.2d 857 (1935), the court denied relief to a stock purchaser who claimed he had been defrauded by the seller's misrepresentation concerning his profit per share.

    This contention is not well taken, for the reason that no such theory was advanced, nor was any issue of agency made in the trial court; and parties will not be permitted, upon appeal to this court, to prevail on issues not raised in the trial court. Baldwin and Baker v. Saunders-Gibson Co., Inc., 148 Okla. 290, 298 P. 600; Samuels v. Granite Savings Bank Trust Co., 150 Okla. 174, 1 P.2d 145; Black v. Parisho, 152 Okla. 70, 3 P.2d 673. The burden of proving the existence of a confidential relation is on the party asserting it. Furrow v. First National Bank, 133 Okla. 137, 271 P. 632; 27 C. J. 46. There being no such issue raised, it cannot now be asserted that plaintiff was acting as defendant's agent, or broker. Plaintiff was a general broker in stocks and bonds, but this transaction discloses on its face that it was a sale and purchase of the stock; and plaintiff would have been bound to respond in damages for failure to deliver the stock at the time agreed, whether plaintiff had been forced to pay more or less than the $50 per share.

  9. Revard v. Py-ah-hun-kah

    42 P.2d 838 (Okla. 1935)   Cited 1 times

    It is insisted by plaintiff that defendant did not rely upon this ground of attack on said judgment in the trial court, and the record in this case seems to support that conclusion. The pleading of defendant, and his admission that his deceased, Harry Py-ah-hun-kah, was in default in the original action, preclude a determination herein that said judgment was void on its face. Not having urged this defense in the trial court and the judgment not disclosing on its face that it is void, defendant is barred from relief on this ground under the rule announced in Black v. Parisho, 152 Okla. 70, 3 P.2d 673; Fast v. Gilbert, 102 Okla. 245, 229 P. 275; Samuels v. Granite Sav. Bank Trust Co., 150 Okla. 174, 1 P.2d 145; Westlake v. Cooper, 69 Okla. 212, 171 P. 859. Defendant contends that the court erred in refusing to permit the introduction of evidence showing fraud in the rendition of the judgment in that the plaintiff herein in that original action represented to the defendant therein that plaintiff would not take a judgment against Harry Py-ah-hun-kah for alimony, and that the said Harry Py-ah-him-kah had no knowledge of the rendition of the said judgment during his lifetime.

  10. Clark v. Lockstone

    170 Okla. 316 (Okla. 1935)   Cited 6 times

    A further proposition of no little significance in this connection is the fact that neither in plaintiffs' pleadings, nor in the proceedings in the lower court, was the issue of the constitutionality of the 15-day statute of limitations raised. The rule is clear that such matters must be raised in the trial court, and not for the first time on appeal. Fast v. Gilbert, 102 Okla. 245, 229 P. 275, and Samuels v. Granite Sav. Bank Trust Co. et al., 150 Okla. 174, 1 P.2d 145. Besides, the validity of the act in question has been approved by this court in the case of Town of Burbank et al. v. Sheel, 131 Okla. 292, 268 P. 1106. Fraud is never presumed, but must be proved by clear and satisfactory evidence, and when a transaction is fairly susceptible of two constructions, the one which will free it from the imputation of fraud will be adopted.