(211 P.)

** * or in too short a time before the three years expired to file a motion to vacate, he may file a suit in equity against the plaintiff to enjoin the enforcement of such judgment."

stated are insufficient to constitute a cause of, until after three years from its rendition, action may be sustained only where the petition is so defective that the court is authorized, taking all of the facts to be admitted, in concluding no cause of action is stated entitling the plaintiff to any relief. Oklahoma Sash & Door Co. v. American Bonding Co., supra.

If any paragraph of the petition states a cause of action, the demurrer should be overruled. Blackwell Oil & Gas Co. v. Whitesides (Okl.) 174 Pac. 573; Jackson v. Levy, 75 Okl. 256, 183 Pac. 505.

And again in said cause the court said: "A judgment is void on its face when it so appears by an inspection of the judgment roll, but it will not be held void on its face unless the record thereof affirmatively shows the court was without jurisdiction."

And further on in said cause the court says:

Applying these general rules to the instant case, we conclude that the petition stated a cause of action. Many statements are found in the briefs of counsel for the respective parties as to what the evidence would prob-rect the clerk upon order of the court, to make ably show in the trial of the cause, but, as suggested by counsel, our conclusion must be based entirely upon the allegations of the petition in determining its sufficiency against a motion for judgment on the pleadings.

"The equivalent of the judgment roll, however is provided for by sections 5144 to 5146, inclusive, Rev. Laws 1910. Those sections dia complete record of every case as soon as it is finally determined, such record to contain 'the petition, the process, return, the pleadings subsequent, thereto, reports, verdicts, orders, judgments, and all material acts and proceedings of the court.' When we have spoken in this opinion of a judgment void on its face, we mean a judgment whose invalidity is disclosed from an inspection of such a record-the judgment roll." [4] We have no fault to find with the rule announced in Pettis v. Johnston, supra, but in construing the petition of the plaintiffs as against a general demurrer, or motion, for judgment we must adhere to the rule that such demurrer or motion admits the truth of the allegation, and it might reasonably be inferred that the invalidity of the

In answering the contention of counsel for the plaintiffs that the judgment of foreclosure is void for the reason that no valid service of summons was ever had upon the defendant Morris in the foreclosure action, they contend that under the rule announced in Pettis v. Johnston, 78 Okl. 277, 190 Pac. 681, that the allegations of the petition in this respect were insufficient in that the plaintiffs did not allege that the invalidity of the service of the summons appeared from the judg ment roll of the record in the foreclosure ac-service of the summons, as alleged, appeared tion and that the instant action having been filed more than three years after the rendition of the judgment of foreclosure, that the petition failed to state a cause of action. In the case of Pettis v. Johnston, supra, Mr. Justice Ramsey, in delivering the opinion of the court, said:

from the judgment roll, and the truth of the allegation being admitted that no valid service was had as required by the statute, it necessarily follows that the court would be without jurisdiction to enter a valid judgment.

In the case of Pettis v. Johnston, supra, in the tenth paragraph of the syllabus it was

held:

"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 the rendition of such void judgment. Such motion is unhampered by a limitation of time."

It is therefore clear from the rule announced that if the judgment in the case at bar was rendered without valid service of summons having been made, and the same appears from the inspection of the judgment roll, such a judgment is classed as "a dead limb upon the judicial tree, which may be lopped off at any time," and such a judgment is subject to collateral attack.

[5] The liberal construction in favor of the

[6] In a decree authorizing a judicial sale, the court actually, or presumptively, adjudicates every matter essential to the propriety and validity of the sale decree. Brewer v. Warner, 105 Kan. 168, 182 Pac. 411, 5

pleader would justify the inference that the plaintiffs are concluded by the judgment of invalid service of summons appeared from foreclosure, as they assert title and ownerthe judgment roll, although not specifically ship to the lands through Wharton H. Morris, alleged by the pleader. But, undoubtedly, the defendant in the foreclosure action. under the allegation of the petition the plaintiffs would be entitled to offer in evidence the judgment roll in support of this allegation. If the judgment roll discloses that the judgment is void for want of jurisdiction in the court to enter the judgment, then the A. L. R. 385. The court in this case pointed plaintiffs are within their right in attacking out the distinction between a judicial sale the judgment collaterally. Under the rule and a sale by virtue of a general execution. announced in Pettis v. Johnston, supra, if a In the former the court has specified the judgment had been rendered against a party property to be sold and adjudicated the lien on a false return it may be vacated within thereon. In the latter the sheriff in executthree years after the rendition of the judging the process does not act as the agent of ment or order upon motion in the same ac- the court, for the court has not specified tion, or, if such judgment is not discovered what property for the sheriff to levy upon, until after the expiration of three years by but it is the duty of the sheriff to levy upon a party affected thereby, then upon proper such property as he is authorized to sell showing an action in equity may be main- under the law in satisfaction of the judgtained for the vacation of such judgment. ment. It is apparent that a judgment rendered upon a fraudulent or false return could be attacked in equity upon a proper showing. The summons and the sheriff's return thereon between the parties and those in privity with ing part of the judgment roll, the recital in the judgment of legal service of summons, having been made, must be construed in connection with that part of the record showing the summons and return. The judgment roll, which gives the official evidence prescribed by statute, the summons and the sheriff's return, is the official evidence that the court acted upon in entering a decree that valid services of summons had been made. In determining the validity of a judgment collaterally attacked, the summons, return, and journal entry of judgment must be read together. Settlemier v. Sullivan, 97 U. S. 444, 24 L. Ed. 1110; Knapp v. Wallace et al., 50 Or. 348, 92 Pac. 1054, 126 Am. St. Rep. 742.

Where the return of the officer, which is the legal evidence of the service of summons, is inconsistent with the recitals in the judgment, the former will control. Stubbs et al. v. McGillis et al., 44 Colo. 138, 96 Pac. 1005, 18 L. R. A. (N. S.) 405, 130 Am. St. Rep. 116; 18 Enc. Pl. & Pr. 987: Galpin v. Page, 18 Wall. 366, 21 L. Ed. 962.

Counsel for the respective parties have at considerable length discussed the allegations of the petition with respect to the lands in controversy being the homestead of Wharton H. Morris, the mortgagor, on the date of the execution of the mortgages and their invalidity by reason of the fact that the wife of the mortgagor failed to join in the execution of said mortgages. It appears from the record that the alleged wife of Wharton H. Morris is not a party to this action, or in any way asserting any interest in the lands. We are therefore of the opinion that, if the decree of foreclosure is valid, which must be determined in the trial of the cause, the

The rule is uniformly adhered to by courts that a judgment in a court of competent jurisdiction upon the merits is conclusive be

them, and that the facts therein adjudicated
may never subsequently be contested between
the parties, or those in privity with them.
where the primary purpose and effect in the
subsequent action is the same as that of the
former action, and where the material facts of
the subsequent action are, or might have
been, presented as constituting the claim or
defense in the former action. Kiniry v. Da-
vis et al., 82 Okl. 211, 200 Pac. 439. With
this rule of law in mind we are unable to
conceive of any good reason why, if the land
in controversy was the homestead of Whar-
ton H. Morris, it would not have been incum-
bent upon him, if he was legally served with
summons in the foreclosure action, to present
to the court any available defense, such as
the invalidity of the mortgages by reason of
the fact that the land in controversy was his
homestead, and that the mortgages executed
by him were void for the reason the same
were not executed as required by law. If,
after being legally summoned, he failed to
present such defense, we have no hesitancy
in concluding that the judgment is conclusive
against him and all persons asserting title
to the lands through and under him.
ever, if the court failed to obtain jurisdiction
of Morris, the defendant in the foreclosure
action, and the judgment is void, then the
plaintiffs have a right to show the invalidity
of the mortgages by reason of the fact that
Wharton H. Morris was without power to
mortgage the lands. If the evidence estab-
lishes the fact that the land was his home-
stead and the decree of foreclosure to be
void, then the plaintiffs would be entitled
to judgment for the possession of the land.

How

For the reasons herein stated, the judgment of the trial court sustaining the mo

(211 P.)

tion of the defendants for judgment on the brief in compliance with the rules of this pleadings is reversed, and the cause is re- court, and the defendant in error has neither manded, with directions to overrule the mo- filed a brief nor offered any excuse for such tions for judgment on the pleadings and pro- failure. The court is not required to search ceed with the trial of the cause in accordance the record to find some theory upon which with the views herein expressed. the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the judgment, and remand the cause in accordance with the prayer of the petition in error. Chicago, R. I. & P. Ry. Co. v. Weaver (Okl. Sup.) 171 Pac. 34, and cases there cited; Lawton Natl. Bank v. Ulrich, 81 Okl. 159, 197 Pac. 167.

HARRISON, C. J., and JOHNSON, MCNEILL, MILLER, NICHOLSON, and COCHRAN, JJ., concur.

SPENCER v. GLOVER et al. (No. 10883.)

(Supreme Court of Oklahoma. Jan. 11, 1923.)

(Syllabus by the Court.)

Appeal and error 773(5)-Case may be reversed where appellee files no brief.

The brief of plaintiff in error and the authorities cited therein appear reasonably to sustain the assignments of error. Therefore the judgment of the trial court is reversed, and the cause remanded for a new trial.

JOHNSON, MCNEILL,
KENNAMER, JJ., concur.

MILLER,

and

Where plaintiff in error has served and filed his brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but may, where the authorities cited in the brief filed, appear reasonably to sustain the assignments of error, reverse the judgment, and re-(Supreme Court of Oklahoma. Dec. 12, 1922. mand the cause in accordance with the prayer of the petition in error.

Appeal from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

Action by Emma Glover, by her next friend, F. Frank Glover, against Ethel Harrison, L. E. Spencer, and others. From a judgment for plaintiff, defendant Spencer appeals. Reversed and remanded for new trial.

Chas. L. Moore, of Oklahoma City, for plaintiff in error.

NICHOLSON, J. This section was instituted in the superior court of Pottawatomie county by Emma Glover, by her next friend, F. Frank Glover, against the plaintiff in error and Mrs. Ethel Harrison, Tom Harrison, and L. E. Spencer Motor Company to recover damages in the sum of $15,000, for personal injuries sustained by being struck by an automobile driven by Mrs. Ethel Harrison. Upon the case being called for trial, the plaintiff dismissed the cause as to the defendants, Mrs. Ethel Harrison and Tom Harrison, and in the absence of L. E. Spencer a jury was empaneled, evidence submitted, and a verdict in the sum of $5,000 against the plaintiff in error was returned, upon which judgment was entered, and to review which this proceeding in error was instituted.

MORRISON v. MASSEY.

(No. 13871.)

Rehearing Denied Jan. 23, 1923.).

(Syllabus by the Court.)

Appeal and error 356, 502(1)-Appeal not filed in time will be dismissed; transcript does not bring up motion for new trial.

Appeal dismissed upon ground stated in the opinion.

Appeal from Superior Court, Creek County; Gaylord R. Wilcox, Judge.

Proceeding between Lee Morrison and E. E. Massey. From the judgment rendered, the former appeals. Appeal dismissed.

Samuel A. Boorstin, of Tulsa, for plaintiff in error.

Cheatham & Beaver, of Bristow, for defendant in error.

KANE, J. This cause comes on to be heard upon the motion of defendant in error to dismiss appeal, because not filed in this court within six months from date of final order. Judgment was rendered on the 28th day of March, 1922, and motion for new trial overruled on the 18th day of April, 1922, and record filed in this court on the 18th day of October, 1922. No case-made was ever settled and signed by the trial judge, and the case is here on transcript, and, this being true, the order of overruling motion for new trial cannot be considered, and the time for filing appeal in this court began to run on Plaintiff in error has served and filed her | March 28, 1922, the day that judgment was

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Appeal from District Court, Coal County; slaughter in the first degree, and he appeals. J. H. Linebaugh, Judge.

Albert Clark was convicted of rape, and he appeals. Affirmed.

The Attorney General, for the State.

Appeal dismissed.

Sandlin & Winans and Womack, Brown, & Cund, all of Duncan, for plaintiff in error.

PER CURIAM. The plaintiff in error, E. H. Shackelford, was informed against for the murder of J. C. Hoff, and upon his trial was found guilty of manslaughter in the first degree, and his punishment fixed at imprisonment in the pententiary for a term of 10 years. From the judgment rendered in

PER CURIAM. Albert Clark was convicted in the district court of Coal county of the crime of rape alleged to have been committed on one Violet McCloud, a female of the age of 14 years, and not the wife of the said Albert Clark, on or about the 17th day of May 1919. On a trial to a jury in September | accordance with the verdict an appeal was 1920, a verdict of guilty was returned, with duly perfected. punishment fixed at 10 years' imprisonment in the state penitentiary. Judgment was rendered in conformity with the verdict on September 16, 1920.

Case-made and petition in error were filed in this court on February 14, 1921. The cause was submitted on the 14th day of March, 1922, at which time no appearance was made by counsel representing the plaintiff in error to orally argue the cause. No brief has been filed in behalf of plaintiff in

error.

Rule 9 of this court (12 Okl. Cr. viii, 165 Pac. x) provides:

"When no counsel appears, and no briefs are filed, the court will examine the pleadings, the instructions of the court and the exceptions taken thereto, and the judgment and sentence, and if no prejudicial error appears, will affirm the judgment."

While his appeal was pending and awaiting decision before this court his counsel of record filed a motion to dismiss the appeal pending in this case, for the reason that on the application of plaintiff in error a pardon was granted by Hon. E. Trapp, Acting Governor, in the absence of the Governor from the state.

The uniform holding of this court is that when a pardon is granted by the Governor and accepted by the plaintiff in error and the matter is judicially called to the attention of this court pending the determination of the appeal, the appeal will be dismissed.

It follows that the motion to dismiss the

appeal will be sustained. It is therefore considered, ordered, and adjudged that the appeal herein be dismissed, and the cause remanded to the district court of Stephens county.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(211 P.)

PROCTOR et al. v. STATE. (No. A–3737.)

(Criminal Court of Appeals of Oklahoma.
Jan. 2, 1923. Rehearing Denied
Jan. 27, 1923.)

(Syllabus by the Court.)

1. Criminal law 1119(4)-Alleged prejudicial remarks of counsel in argument considered on appeal only where made part of record.

Alleged improper and prejudicial remarks of counsel in the argument to the jury will be considered by this court only where such remarks are made a part of the record. Mere naked allegations of prejudicial remarks in the motion for a new trial are insufficient.

2. Criminal law 1174 (2,5) Momentary mingling of jurors with others and telephonic and other conversations in presence of bailiff before final submission will not operate as reversal unless shown prejudicial.

Before final submission the inadvertent and momentary mingling of jurors with others at the place where the jury took their meals, and telephone and other conversations in the presence of the bailiff, will not operate as a reversal, unless it appears that such conduct was probably prejudicial.

3. Criminal law 1156(5) Finding that there was no prejudice in alleged misconduct of jury in considering motion for new trial not disturbed.

BESSEY, J. A. G. Proctor and Orin Proctor, plaintiffs in error, in this opinion referred to as the defendants, were by information filed in the district court of Carter county charged with the murder of Ray Massard. By verdict of the jury rendered October 31, 1919, each of the defendants was found guilty of manslaughter in the first degree. Defendant A. G. Proctor's punishment was assessed at confinement in the state penitentiary for a term of five years, and defendant Orin Proctor's punishment was fixed at four years. From the judgment pronounced in accordance with this verdict defendants appeal.

The evidence shows that on the Sunday preceding the Wednesday night on which the fatal difficulty occurred the deceased, Ray Massard, and another Syrian were playfully throwing at each other pieces of ice taken from an ice pack on the sidewalk in Healdton; that a piece of this ice accidentally struck defendant A. G. Proctor; that this defendant then asked Massard why he hit him, and Massard replied with a vile epithet, that it

Where alleged misconduct of the jury before final submission was investigated by the trial court on consideration of the motion for a new trial, the trial court's finding that there was no prejudice will not be disturbed. 4. Homicide 300 (3)-Instructions on self- was an accident; that thereupon A. G. Proctor defense held sufficient.

Instructions relating to self-defense and the necessity or apparent necessity to act in self-defense held sufficient.

5. Homicide 340(1)-Instruction that evidence of threats might be considered to determine probable aggressor not prejudicial as being improper limitation.

and Massard engaged in a fight in which defendant's head was cut with a piece of ice, and he sustained a broken or injured hand or wrist. On Wednesday evening Massard, in company with Albert Shadid, another young Syrian, was walking along the street near where defendants A. G. Proctor and Orin Proctor were sitting on the sidewalk, passing An instruction that evidence of threats, along in front of and beyond a pool hall near communicated or uncommunicated, might be by; that after they had passed the defendconsidered for the purpose of determining which ants remained sitting on the curb a few was the probable aggressor and what might be minutes, and then went into the pool hall to reasonably apprehended from the overt acts get a drink of water, on their way to their of the deceased, considered with the other in-rooms located a short distance to the rear of structions given, was not prejudicial as being an improper limitation of the purpose for which such evidence might be considered.

6. Homicide 151(3)-Burden of proof on whole case in manslaughter case, where accused pleads self-defense, on state; selfdefense may be affirmative defense.

Massard and Shadid were in the pool hall, the pool hall. Defendants discovered that engaged in a game of pool. Defendants prepared to play a game on an adjoining table, and while they were chalking their cues preparatory to beginning the game, these two Where the killing is admitted and the ac- hands, in a fighting or belligerent attitude; Syrians approached with their cues in their cused pleads self-defense, there may be a shifting of the burden of the evidence on that paraccording to other testimony, the defendants ticular point, but the burden of proof on the were the aggressors. However this may be, whole case lies with the state. Self-defense all four then engaged in the difficulty, using may be and often is an affirmative defense. their fists and the billiard cues, and fighting Section 5902, Rev. Laws 1910. by striking, shoving and clinching. At the cul

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 211 P.-67