Knell v. Burnes

1982 OK 35, 645 P.2d 471, 1982 Okla. LEXIS 209

• Court: Supreme Court of Oklahoma
• Decided: March 9, 1982
• Docket: 55600
• Status: Published

Opinions

HODGES, Justice.

The issue on appeal is whether appellant’s petition in error should be dismissed for failure to file it within thirty days of rendition of judgment.¹

An action was brought by Doris C. Burnes, appellee, against Fred Knell, appellant, for recission and cancellation of a contract for the purchase of a house. At the conclusion of the trial on May 15, 1980, the trial judge stated: “The Court will take this matter under advisement. If there are any further legal matters that counsel care to present to the Court you may do so within five days.” At the appellant’s request, briefing time was extended until May 27, 1980. When appellant’s attorney filed his brief on May 27, 1980, he discovered that judgment had been entered earlier in the day for appellee. A “motion to reconsider” was filed June 12, 1980, reciting these facts, and requesting that the court reconsider its decision after reviewing the authority cited in appellant’s brief. The motion was denied on July 1, 1980, and appellant filed a petition in error July 31, 1980. The appellee filed a motion to dismiss, asserting that the court lacked jurisdiction.

I

The appellee argues that under the rule enunciated in Minnesota Mining & Mfg. Co. v. Smith, 581 P.2d 31 (Okl.1978), the motion to reconsider should be treated as a motion for new trial, and because the motion was filed sixteen days after the court’s judgment was entered, it was filed out of time. Except for the grounds of newly discovered evidence, or unless it is impossible to obtain the record, or if the litigant is unavoidably prevented from filing an application for new trial, the motion must be filed within ten days after judgment is rendered.² It is also asserted that the petition in error was untimely filed because it was not filed within thirty days of the trial court’s rendition of judgment.³ Based on these allegations, the appellee contends that this Court lacks jurisdiction to consider the appeal. We do not agree.

The relief sought is for the premature entry of the judgment after the proceedings had ended and the matter taken under advisement. Although a motion to reconsider is not a part of Oklahoma’s statutory scheme of pleading, this Court has always considered motions based on the substantive allegations asserted rather than on the nomenclature given to the pleading by the litigant. The Court in every stage of the action must disregard technical errors or defects in the pleadings unless the substantial rights of the adverse party are affected.⁴

The rendition of a premature judgment is an irregularity which may be vacated under § 1031(3) if the rights of the party have been prejudiced because of a failure to adhere to the established rules or mode of procedure in the orderly administration of justice.⁵ In Zancaner v. Louisville & Nashville R. R. Co., 220 Cal.App.2d 836, 34 Cal.Rptr. 143,146 (1963) it was held that judgment was entered prematurely when the court entered summary judgment in the morning of the thirteenth day of a thirty-day period previously allowed for the entry of a counteraffidavit and the counter-affidavit was filed in the afternoon. Likewise, a judgment should be set aside when it is prematurely entered before examination of solicited briefs of the parties after the case has been taken under advisement.

In Minnesota Mining, this Court held that the motion to reconsider filed in that case had to be treated as a motion for new trial because no facts were plead or proven to bring the motion within the purview of 12 O.S.1971 § 1031.⁶ This statute delineates the basis upon which the trial court may vacate or modify its judgment. One of the grounds is for mistake or irregularity in obtaining the judgment or order. We find that sufficient facts were plead in this case to distinguish it from Minnesota Mining, and that the motion falls within the ambit of § 1031(3). The motion to reconsider was filed within thirty days after the final order as required by 12 O.S.1971 § 1031.1,⁷ and the petition in error was filed within thirty days after the motion to reconsider was denied.

II

At the hearing on the motion to reconsider, the trial court, without acknowledging that the brief had ever been examined, ruled that its failure to consider the brief submitted after the trial was not an irregularity which justified vacation of the judgment. We disagree.

The appearance of justice is often as important as the proper administration of justice. The purpose and policy of the law is that a judge should afford to every person legally interested in a proceeding the full right to be heard according to law.⁸ If the court sets a deadline when a case will be decided, and the opportunity to present authority to support the litigant’s position is denied by premature entry of judgment, the judgment should be vacated upon a timely application to do so.⁹

REVERSED.

IRWIN, C. J., BARNES, V. C. J., and LAVENDER, SIMMS, DOOLIN and HAR-GRAVE, JJ., OPALA, J., concurring in result. WILSON, J., disqualified.

1 . The time for filing a petition in error is mandated by 12 O.S.1971 Ch. 15, App. 2, Rule 1.15(a):

“The petition in error shall be filed within thirty days from the final judgment or final order; appellant shall attach to the petition in error a copy of the designation of record filed in the trial tribunal pursuant to Rule 1.20(a). The interval allowed for filing a petition in error may not be extended by either the trial tribunal or this Court. For cross or multiple appeals Rule 1.18 is applicable.”

2 . Title 12 O.S.1971 § 653 provides:

“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.”

3 . Title 12 O.S.1971 Ch. 15, App. 2, Rule 1.15(a) provides:

“The petition in error shall be filed within thirty days from the date of the final judgment or final order. 12 O.S.Supp.1969 § 990. The thirty-day time limit may not be extended either by the trial court or by the Supreme Court.”

4 . Rosser-Moon Furniture Co. v. Harris, 191 Okl. 607, 131 P.2d 1004, 1006 (1942); Dickinson v. Whitaker, 75 Okl. 243, 182 P. 901 (1919); 12 O.S.1971 § 78, 20 O.S.1971 § 3001.

5 . Glick v. Glick, 372 S.W.2d 912, 915 (Mo.1963); Chenoweth v. LaMaster, 342 S.W.2d 500, 502 (Mo.App.1961); Whitney v. Superior Court, 147 Cal. 536, 72 P. 37, 38 (1905.)

6 . Title 12 O.S.1971 § 1031(3) provides:

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

7 . It is provided by 12 O.S.1971 § 1031.1:

“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 the judgment. The court may prescribe what notice, if any, shall be given.”

8 . Okla.Const. art. 2 § 6; 5 O.S.1971 Ch. 1, App. 4, Canon 4. Tulsa Rock Co. v. Williams, 640 P.2d 530 (Okl.1982); Oklahoma City v. Castleberry, 413 P.2d 556, 558 (Okl.1966); Railway Express Agency v. Jansen, 351 P.2d 1071, 1075 (Okl.1960); Sharum v. Dean, 113 Okl. 95, 239 P. 666, 667 (1925).

9 .12 O.S.1971 § 952(b)(2).