BACON, Judge.
In this appeal appellant is challenging the propriety of the trial judge’s refusal to disqualify himself from this case in addition to challenging the purported judgment “entered” by the trial judge. The issue is not whether he could enter judgment but did he “enter” judgment. We agree with appellant and find that the circumstances of this case warrant reversal for a new trial before another trial judge.
Tom Clarke died intestate on March 12, 1971, leaving his widow (appellee) and one daughter (appellant) as his heirs. On March 23, 1971, appellee filed her petition to settle Mr. Clarke’s estate waiving her right of appointment as administratrix in favor of appellant.
. The administration of the estate continued in a routine manner, except for an appeal over Oklahoma taxes, until November 1972. At this time appellee filed an application to remove appellant as administra-trix, alleging the latter’s failure to inventory and report all assets of the estate plus unnecessarily continuing the administration of the estate. This application was set for hearing on January 30, 1973.
■Before this hearing started, the trial judge took both parties into his chambers for a “conference” while their counsel remained in the courtroom. It was during this off-the-record “conference” that the trial judge inquired how appellant had acquired a farm from her father (which was not in his estate). She replied, “By deed,” some 20 years previously. Even though it was not an issue, the judge then told her, in effect, the deed would not stand up in court and that she should settle with appel-lee. This “conference,” the record indicates, was just one of several the trial judge had with the parties, some of which were held in 'the absence of the other party and her attorney. One such “conference” ended with appellant stating she “just as well go home, the Judge has already got his mind made up.” After the January 30 “conference” with the trial judge, the par[370]*370ties negotiated for some time and came back into the courtroom and announced they had reached an agreement. The agreement was vaguely explained to the court, which took no further action at that time other than express that he was “proud that you have come to this agreement.” Two of the attorneys were to draw up the “agreement” and submit it to the parties for signatures. And with this the court adjourned. Thereafter the agreement was prepared but neither party would sign it.
Subsequently on May 8, 1973, appellee filed another petition to remove appellant. The record contains an order and notice of hearing on May 21, 1973, but no certificate of service on either party. Apparently no hearing was held.
Next in the record is a “Journal Entry and Order” prepared by the trial judge and filed May 22, 1973, which was not approved by any party or attorney. This “Journal Entry” starts out “Now on this 30th day of January, 1973 . . . . ” and goes on to recite the parties had reached an agreement, purports to detail same and orders the parties to “draw up such legal documents as necessary to effectuate this agreement and to prepare the Final Account.”1 On this same day the trial judge prepared and filed an order, without service to anyone, and without reciting the presence of any party or attorney, dismissing the May 8 petition to remove appellant because neither party had complied with the “Order of January 30, 1973, by signing the necessary agreement . . . . ” Neither appellant nor her attorney received a copy of the “Journal Entry” for 30 days or until June 21.
The next instrument in the record is a “Notice of Hearing Final Account and Petition for Determination of Heirs, Distribution and Discharge.”
The evidence shows appellant did not know about the filing of the foregoing instruments filed between May 8 and May 24. They were not sent to her or her attorney.
On July 23, 1973, appellant filed a “Motion to Vacate Journal Entry and Order” alleging the journal entry of January 30, 1973, was coerced by the trial judge and that there were irregularities in obtaining the journal entry. Appellant also filed at this same time an “Application to Disqualify Judge” alleging among other things, that bias and prejudice of the trial judge resulted from his friendship with appellee; that the trial judge conferred with appellee and appellant without their attorneys being present; that the trial judge prepared the journal entry and order and filed same without notice thereby precluding appellant’s right of appeal; that the trial judge had conferred with appellee outside the presence of appellant; and other allegations.
Appellant’s motions were heard on July 26, 1973, with most of the foregoing being brought out by evidence. During this “hearing” appellant was attempting to testify that the trial judge (who was holding this .very hearing) had said he had had dinner with appellee. The trial judge, who chose to pass on his own challenged behavior defensively interposed, “I think the Court should remind the witness that the witness is under oath and any mistreatment would be committing perjury.” To this, the apparently frightened and intimidated appellant respectfully replied, “I’m not going to put that in the record because I remember you saying it but I can’t give enough details about it. I do not want to tell a falsehood on this stand. So I will ask you to erase that. It was made to me, but [371]*371I cannot give the right time or the place. And I don’t want to tell it wrong.”
The trial court denied appellant’s motions and an effort to procure a writ of prohibition in the supreme court failed based on 12 O.S.1974 Supp., ch. 2 app., Rule 15 (previously 20 O.S.1971, ch. 1 app. 2, Rule 9(H)), which became effective September 1, 1973 (requiring the application to be taken to the Chief Judge of the county within a certain time).
On December 18, 1973, the trial court ignored a second plea to disqualify and said: “. . . [The] Journal Entry and Order . was arrived at on January 30th, 1973, and was filed May 22nd, 1973, and there was no action in this case until the Motion to Vacate . . . July 23rd which would be more than thirty days. . Unless you [appellant] can prove to the Court that you do not come within the Rule that the Supreme Court has stated. ... I don’t think that you come within the rules. So. the Court will have to summarily overrule your Motion for Vacation of the Journal Entry and Order.”
We think the trial court erred in his assessment of what happened. To begin with no judgment was rendered or entered by the trial court at the January 30, 1973, “hearing.” There is nothing in the record to show or indicate the judge or the parties considered a judgment was entered or rendered at the January 30 “hearing.” In fact the circumstances indicate just the opposite, that is for example, appellee’s subsequent filing of another petition to remove appellant as administratrix. Why would appellee file such a petition if she considered a judgment to have been rendered or entered? No evidence was heard- at that “hearing” but only an announcement that an agreement had been reached. That agreement was later abandoned by the parties before the judge filed his journal entry on May 22, 1973, which he did while another petition to remove was pending.
Free access — add to your briefcase to read the full text and ask questions with AI
BACON, Judge.
In this appeal appellant is challenging the propriety of the trial judge’s refusal to disqualify himself from this case in addition to challenging the purported judgment “entered” by the trial judge. The issue is not whether he could enter judgment but did he “enter” judgment. We agree with appellant and find that the circumstances of this case warrant reversal for a new trial before another trial judge.
Tom Clarke died intestate on March 12, 1971, leaving his widow (appellee) and one daughter (appellant) as his heirs. On March 23, 1971, appellee filed her petition to settle Mr. Clarke’s estate waiving her right of appointment as administratrix in favor of appellant.
. The administration of the estate continued in a routine manner, except for an appeal over Oklahoma taxes, until November 1972. At this time appellee filed an application to remove appellant as administra-trix, alleging the latter’s failure to inventory and report all assets of the estate plus unnecessarily continuing the administration of the estate. This application was set for hearing on January 30, 1973.
■Before this hearing started, the trial judge took both parties into his chambers for a “conference” while their counsel remained in the courtroom. It was during this off-the-record “conference” that the trial judge inquired how appellant had acquired a farm from her father (which was not in his estate). She replied, “By deed,” some 20 years previously. Even though it was not an issue, the judge then told her, in effect, the deed would not stand up in court and that she should settle with appel-lee. This “conference,” the record indicates, was just one of several the trial judge had with the parties, some of which were held in 'the absence of the other party and her attorney. One such “conference” ended with appellant stating she “just as well go home, the Judge has already got his mind made up.” After the January 30 “conference” with the trial judge, the par[370]*370ties negotiated for some time and came back into the courtroom and announced they had reached an agreement. The agreement was vaguely explained to the court, which took no further action at that time other than express that he was “proud that you have come to this agreement.” Two of the attorneys were to draw up the “agreement” and submit it to the parties for signatures. And with this the court adjourned. Thereafter the agreement was prepared but neither party would sign it.
Subsequently on May 8, 1973, appellee filed another petition to remove appellant. The record contains an order and notice of hearing on May 21, 1973, but no certificate of service on either party. Apparently no hearing was held.
Next in the record is a “Journal Entry and Order” prepared by the trial judge and filed May 22, 1973, which was not approved by any party or attorney. This “Journal Entry” starts out “Now on this 30th day of January, 1973 . . . . ” and goes on to recite the parties had reached an agreement, purports to detail same and orders the parties to “draw up such legal documents as necessary to effectuate this agreement and to prepare the Final Account.”1 On this same day the trial judge prepared and filed an order, without service to anyone, and without reciting the presence of any party or attorney, dismissing the May 8 petition to remove appellant because neither party had complied with the “Order of January 30, 1973, by signing the necessary agreement . . . . ” Neither appellant nor her attorney received a copy of the “Journal Entry” for 30 days or until June 21.
The next instrument in the record is a “Notice of Hearing Final Account and Petition for Determination of Heirs, Distribution and Discharge.”
The evidence shows appellant did not know about the filing of the foregoing instruments filed between May 8 and May 24. They were not sent to her or her attorney.
On July 23, 1973, appellant filed a “Motion to Vacate Journal Entry and Order” alleging the journal entry of January 30, 1973, was coerced by the trial judge and that there were irregularities in obtaining the journal entry. Appellant also filed at this same time an “Application to Disqualify Judge” alleging among other things, that bias and prejudice of the trial judge resulted from his friendship with appellee; that the trial judge conferred with appellee and appellant without their attorneys being present; that the trial judge prepared the journal entry and order and filed same without notice thereby precluding appellant’s right of appeal; that the trial judge had conferred with appellee outside the presence of appellant; and other allegations.
Appellant’s motions were heard on July 26, 1973, with most of the foregoing being brought out by evidence. During this “hearing” appellant was attempting to testify that the trial judge (who was holding this .very hearing) had said he had had dinner with appellee. The trial judge, who chose to pass on his own challenged behavior defensively interposed, “I think the Court should remind the witness that the witness is under oath and any mistreatment would be committing perjury.” To this, the apparently frightened and intimidated appellant respectfully replied, “I’m not going to put that in the record because I remember you saying it but I can’t give enough details about it. I do not want to tell a falsehood on this stand. So I will ask you to erase that. It was made to me, but [371]*371I cannot give the right time or the place. And I don’t want to tell it wrong.”
The trial court denied appellant’s motions and an effort to procure a writ of prohibition in the supreme court failed based on 12 O.S.1974 Supp., ch. 2 app., Rule 15 (previously 20 O.S.1971, ch. 1 app. 2, Rule 9(H)), which became effective September 1, 1973 (requiring the application to be taken to the Chief Judge of the county within a certain time).
On December 18, 1973, the trial court ignored a second plea to disqualify and said: “. . . [The] Journal Entry and Order . was arrived at on January 30th, 1973, and was filed May 22nd, 1973, and there was no action in this case until the Motion to Vacate . . . July 23rd which would be more than thirty days. . Unless you [appellant] can prove to the Court that you do not come within the Rule that the Supreme Court has stated. ... I don’t think that you come within the rules. So. the Court will have to summarily overrule your Motion for Vacation of the Journal Entry and Order.”
We think the trial court erred in his assessment of what happened. To begin with no judgment was rendered or entered by the trial court at the January 30, 1973, “hearing.” There is nothing in the record to show or indicate the judge or the parties considered a judgment was entered or rendered at the January 30 “hearing.” In fact the circumstances indicate just the opposite, that is for example, appellee’s subsequent filing of another petition to remove appellant as administratrix. Why would appellee file such a petition if she considered a judgment to have been rendered or entered? No evidence was heard- at that “hearing” but only an announcement that an agreement had been reached. That agreement was later abandoned by the parties before the judge filed his journal entry on May 22, 1973, which he did while another petition to remove was pending. Appellant did not receive a copy of the journal entry until 30 days after the trial judge filed it, which was the last date to start an appeal or move to vacate the “journal entry.” We think that since no judgment was entered on January 30, 1973, and that the journal entry filed on- May 22, 1973, was on file for 30 days without appellant having notice of same, that appellant would have 30 days to appeal or file her motion to vacate from the date she received notice of the purported “Journal Entry,” or that judgment had been rendered. 12 O.S.1971 § 1031.1. Her motion to vacate and disqualify was timely filed on July 23, 1973. In other words, first we think the journal entry did not amount to a judgment because (1) none was entered January 30; and (2) none could have been entered because there was no evidence to support it. That is, he heard no evidence on January 30, 1973, and at most an agreement was announced which was never consummated. Thus, there would be nothing to support the journal entry. However, even if the “Journal Entry” could be deemed to be a judgment, appellant should have 30 days from the date she had notice of its first entry which was on June 21, 1973. To summarily overrule the motion to vacate would therefore be error.
Based upon this “Journal Entry” the judge then prepared and filed an order dismissing appellee’s petition for removal as a prelude to what he would eventually enter as a final decree of distribution and discharge awarding almost all the estate to ap-pellee instead of one-half as provided by the law of intestate succession.
Suffice it to say that the record before us indicates that the trial judge should have disqualified himself from the case, and that the record shows the “agreement” entered into, upon which this judgment is based, was a result of actions by the trial court which can only be rectified by starting over with a different trial judge. In Callaham v. Childers, 186 Okl. 504, 99 P.2d 126 (1940) where a party sought mandamus to require the judge to certify his disqualification the court said: “When cir[372]*372cumstances and conditions surrounding litigation are of such nature that they might cast doubt and question as to impartiality of any judgment the trial judge may pronounce, said judge should certify his disqualification.” Citing State ex rel. Harden v. Edwards, 176 Okl. 187, 56 P.2d 402 (1936) the court went on: “Pointing out that it was the duty of this court to be vigilant in removing and eliminating every possible semblance of doubt or suspicion of the fairness or impartiality of the trial judge, we granted the writ of mandamus, without any finding as to actual bias or prejudice, a condition of mind which is ordinarily not capable of being proven by direct or positive evidence. State ex rel. Conley v. Parks, 32 Okl.Cr. 61, 239 P. 941. The composite or collective impression gained by careful consideration of the whole situation prompts us to the conclusion that it would be better for all parties concerned, including the respondent and the judiciary in general, if the writ should be granted.” (emphasis ours)
The cause is therefore reversed, and remanded to the trial court with directions to vacate the judgment, reinstate appellee’s petition to remove appellant and disqualify him'self from the case.
BRIGHTMIRE, J„ concurs.