Simon v. Thompson

Court Of Appeals Of Indian Territory

Simon v. Thompson

43 S.W. 861, 1 Indian Terr. 604, 1898 Indian Terr. LEXIS 81

CourtCourt Of Appeals Of Indian Territory

DecidedJanuary 14, 1898

StatusPublished

This text of 43 S.W. 861 (Simon v. Thompson) is published on Counsel Stack Legal Research, covering Court Of Appeals Of Indian Territory primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Simon v. Thompson, 43 S.W. 861, 1 Indian Terr. 604, 1898 Indian Terr. LEXIS 81 (Conn. 1898).

Pincite

Opinion

Springer, C, J.,

(after stafing the facts). Counsel r appellant assign the following errors in this case: (1) íe court erred in overrulind the motion to vacate the igment, because said judgment was entered in vacation, d not in term time; the hearing of the cause was in cham[608]*608bers, and not in open court; was ex parte; not had at a tim< and place of which the plaintiff had any notice to appear, o: knowledge of the proceedings; because the judgment wa rendered without any hearing as to the merits. (2) Th court erred in not sustaining the- plaintiff’s exceptions t< the master’s report, and in sustaining the motion of defenc ants to confirm the report of the master, because there wa no testimony before the court to support the finding of th master, and the court simply followed the opinion of th master, without inquiring into the testimony upon whic such opinion was based; thereby, in effect, delegating th power and authority of a judge to hear and finally detei mine, to the master. (3) The court erred in overrulin plaintiff’s motion for a new trial, because a full hearing c the merits of the case had been denied the plaintiff, and b< cause the judgment of the court was not sustained by an testimony produced before the court. (4) Because tl manner of proceeding in this case is wholly unknown to ti law and our system of jurisprudence. We will consid these assignments of error in their order.

It seems that the master in chancery, to whom tb case was referred by the court, at the hearing of the petiti< of appellant for a restraining order and for the appointme of a receiver, took certain testimony, and reported, not on on the question of allowing the interlocutory orders, but ul on the facts, and accompanied his conclusions of fact wil his conclusions upon the law of the case. This hearing w at Purcell, and in vacation. The master stated at the cc elusion of his findings of fact as follows: “I conclude, as matter of law, from the foregoing findings, that the co plainant is not entitled to the relief prayed for, and so : port. ” On the following day, at Ardmore, without notice the plaintiff, the judge, in chambers, passed upon the m: ter’s report, confirmed the same, and ordered that the pla tiff forthwith pay all the costs, including a fee of $50 for 1 [609]*609lobby, the master. The master did not submit to the judge, n chambers, at this time, the testimony upon which he found he facts in the case. When the court assembled at Purcell, he appellant moved the court to vacate the judgment enter-d in vacation at Ardmore, because the same was entered in acation, as stated in his first assignment of error above set orth.. It is conceded by counsel for the appellees that, if be order in question be considered a final judgment on the íerits of the case, it is void, for the reason that it appears ) have been entered in vacation. But counsel for appellees irther insist that the court’s refusal to vacate this order is umaterial, for the reason that the whole matter came up ?ain in open court at Purcell, and a final judgment was íere entered in the case. The judgment of the court in ication at Ardmore confirmed the master’s report in all rejects; and, the master having reported that the complainant as not entitled to the relief prayed for, this was a final dgment upon the merits, and, having been made in vaca-ra, it was void. Whether this error was cured by the sub-quent action of the court at Purcell will appear upon con-leration of the second assignment of error.

Master’s Report — Final Judgment.

In the court at Purcell the appellant filed a motion to quire the master to return the testimony taken by him, and >on which he had based his report and recommendations, to court; and he also filed exceptions to the master’s re->rt, and a motion to vacate the judgment of the court hered in vacation at Ardmore. The master undertook to mply with the motion to require him to supply the testi-ray, and filed in court what he certified was a substantial py of the testimony produced before him. The appellant ra submitted affidavits of the witnesses who testified before j master, and filed them in support of his exceptions to 3 master’s report, which affidavits contradicted the testi->ny as furnished by the master. The court overruled the [610]*610motion to set aside the judgment rendered in vacation a Ardmore. The appellees then filed a motion that the mas ter’s report be confirmed, which motion was sustained To this action of the court the appellant excepted. Th appellees also moved that they have judgment in the cas< and filed the evidence taken before the master in support c their motion. The transcript contains this stateinen “Which said motion was opposed by the plaintiff by reaso of the affidavits of J. W. Hocker, Harris Simon, and! Spitzer, and introducing in evidence the notice attached t the original summons herein, all of which are fully set fort in bill of exceptions No. 2; which said motion is sustained b the court, and judgment given for the defendants; to whic action of the court the plaintiff excepted, and exception w£ in open court allowed. ” The affidavit of J. W. Hocker, 1 which reference is made, was to the effect that the only ma ter tried at the hearing before the master was the questic as to whether the plaintiff was entitled to the temporary r lief sought; that the testimony of the witnesses was n written down at the examination, but that the evidence r turned into court by the master was written out by the ma ter over four months after the taking of the same, from l memory, and without talking to the witnesses, or all them; that the statement of what the testimony was, : shown by the testimony returned, is not as affiant understo* the same to be; that affiant understood that the hearing t fore the master was not on the issues in the case, but only the matter of granting the temporary order of injunction a: appointing the receiver; that the hearing was not a fir trial; that affiant did not at the time intend, as counsel f appellant, to enter into a final trial, but simply to ascerfe whether or not the temporary relief should be granted. T affidavit of Harris Simon, referred to above, was to the efff that he was one of the witnesses who testified at the heari on the application for an injunction before the master [611]*611ihancery, and that the testimony returned into court by the said master as having been given by him was not correct, md that he did not testily in substance as sot forth in said 'eport. Notwithstanding the affidavits submitted to the ¡ourt by the appellant in resisting the motion to enter judg-uent for the defendants, the motion was allowed, and final entered for the defendants below (the appellees in his case.) It is evident from all the facts in this case that the ourterredinenteringfinaljudgmentin this case; that the tes-inmoyupon which the same was based had been taken in apro-eeding for temporary injunction, and for the appointment f a receiver; that the real merits of the case had never been ivestigated; and that the case was not in a condition in rhich final judgment could be entered. The appellant was ntitled to a hearing upon his complaint in equity. Ho had rayed, in additien to his application for a restraining order ad for a receiver, ‘! that an accounting be had of the amount ae from plaintiff to defendant; that plaintiff be allowed to ay said amount, and redeem said stock of goods, fixtures, id stores, and such general and special relief as in equity id good conscience, in the premises, the court may deem fit id proper.

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Springer, C, J.,

(after stafing the facts). Counsel r appellant assign the following errors in this case: (1) íe court erred in overrulind the motion to vacate the igment, because said judgment was entered in vacation, d not in term time; the hearing of the cause was in cham[608]*608bers, and not in open court; was ex parte; not had at a tim< and place of which the plaintiff had any notice to appear, o: knowledge of the proceedings; because the judgment wa rendered without any hearing as to the merits. (2) Th court erred in not sustaining the- plaintiff’s exceptions t< the master’s report, and in sustaining the motion of defenc ants to confirm the report of the master, because there wa no testimony before the court to support the finding of th master, and the court simply followed the opinion of th master, without inquiring into the testimony upon whic such opinion was based; thereby, in effect, delegating th power and authority of a judge to hear and finally detei mine, to the master. (3) The court erred in overrulin plaintiff’s motion for a new trial, because a full hearing c the merits of the case had been denied the plaintiff, and b< cause the judgment of the court was not sustained by an testimony produced before the court. (4) Because tl manner of proceeding in this case is wholly unknown to ti law and our system of jurisprudence. We will consid these assignments of error in their order.

It seems that the master in chancery, to whom tb case was referred by the court, at the hearing of the petiti< of appellant for a restraining order and for the appointme of a receiver, took certain testimony, and reported, not on on the question of allowing the interlocutory orders, but ul on the facts, and accompanied his conclusions of fact wil his conclusions upon the law of the case. This hearing w at Purcell, and in vacation. The master stated at the cc elusion of his findings of fact as follows: “I conclude, as matter of law, from the foregoing findings, that the co plainant is not entitled to the relief prayed for, and so : port. ” On the following day, at Ardmore, without notice the plaintiff, the judge, in chambers, passed upon the m: ter’s report, confirmed the same, and ordered that the pla tiff forthwith pay all the costs, including a fee of $50 for 1 [609]*609lobby, the master. The master did not submit to the judge, n chambers, at this time, the testimony upon which he found he facts in the case. When the court assembled at Purcell, he appellant moved the court to vacate the judgment enter-d in vacation at Ardmore, because the same was entered in acation, as stated in his first assignment of error above set orth.. It is conceded by counsel for the appellees that, if be order in question be considered a final judgment on the íerits of the case, it is void, for the reason that it appears ) have been entered in vacation. But counsel for appellees irther insist that the court’s refusal to vacate this order is umaterial, for the reason that the whole matter came up ?ain in open court at Purcell, and a final judgment was íere entered in the case. The judgment of the court in ication at Ardmore confirmed the master’s report in all rejects; and, the master having reported that the complainant as not entitled to the relief prayed for, this was a final dgment upon the merits, and, having been made in vaca-ra, it was void. Whether this error was cured by the sub-quent action of the court at Purcell will appear upon con-leration of the second assignment of error.

Master’s Report — Final Judgment.

In the court at Purcell the appellant filed a motion to quire the master to return the testimony taken by him, and >on which he had based his report and recommendations, to court; and he also filed exceptions to the master’s re->rt, and a motion to vacate the judgment of the court hered in vacation at Ardmore. The master undertook to mply with the motion to require him to supply the testi-ray, and filed in court what he certified was a substantial py of the testimony produced before him. The appellant ra submitted affidavits of the witnesses who testified before j master, and filed them in support of his exceptions to 3 master’s report, which affidavits contradicted the testi->ny as furnished by the master. The court overruled the [610]*610motion to set aside the judgment rendered in vacation a Ardmore. The appellees then filed a motion that the mas ter’s report be confirmed, which motion was sustained To this action of the court the appellant excepted. Th appellees also moved that they have judgment in the cas< and filed the evidence taken before the master in support c their motion. The transcript contains this stateinen “Which said motion was opposed by the plaintiff by reaso of the affidavits of J. W. Hocker, Harris Simon, and! Spitzer, and introducing in evidence the notice attached t the original summons herein, all of which are fully set fort in bill of exceptions No. 2; which said motion is sustained b the court, and judgment given for the defendants; to whic action of the court the plaintiff excepted, and exception w£ in open court allowed. ” The affidavit of J. W. Hocker, 1 which reference is made, was to the effect that the only ma ter tried at the hearing before the master was the questic as to whether the plaintiff was entitled to the temporary r lief sought; that the testimony of the witnesses was n written down at the examination, but that the evidence r turned into court by the master was written out by the ma ter over four months after the taking of the same, from l memory, and without talking to the witnesses, or all them; that the statement of what the testimony was, : shown by the testimony returned, is not as affiant understo* the same to be; that affiant understood that the hearing t fore the master was not on the issues in the case, but only the matter of granting the temporary order of injunction a: appointing the receiver; that the hearing was not a fir trial; that affiant did not at the time intend, as counsel f appellant, to enter into a final trial, but simply to ascerfe whether or not the temporary relief should be granted. T affidavit of Harris Simon, referred to above, was to the efff that he was one of the witnesses who testified at the heari on the application for an injunction before the master [611]*611ihancery, and that the testimony returned into court by the said master as having been given by him was not correct, md that he did not testily in substance as sot forth in said 'eport. Notwithstanding the affidavits submitted to the ¡ourt by the appellant in resisting the motion to enter judg-uent for the defendants, the motion was allowed, and final entered for the defendants below (the appellees in his case.) It is evident from all the facts in this case that the ourterredinenteringfinaljudgmentin this case; that the tes-inmoyupon which the same was based had been taken in apro-eeding for temporary injunction, and for the appointment f a receiver; that the real merits of the case had never been ivestigated; and that the case was not in a condition in rhich final judgment could be entered. The appellant was ntitled to a hearing upon his complaint in equity. Ho had rayed, in additien to his application for a restraining order ad for a receiver, ‘! that an accounting be had of the amount ae from plaintiff to defendant; that plaintiff be allowed to ay said amount, and redeem said stock of goods, fixtures, id stores, and such general and special relief as in equity id good conscience, in the premises, the court may deem fit id proper. ” No opportunity -was offered the appellant in ,e court below to introduce evidence and obtain the judg-ent of the court upon this prayer. The judgment for de-ndants on the merits of the case was an error which entitles e appellant to a reversal of the judgment and a new trial.

The third assignment, that the court erred in overrul-g plaintiff’s motion for a new trial, and the fourth assign-ent, that the proceeding in the case is wholly unknown to e law and our system of jurisprudence, do not require any rther consideration, in view of the opinion of the court sus-ining.the second assignment of error. The judgment of e court below is reversed, and the cause remanded, with structions to proceed in accordance with this opinion.

Clayton and Thomas, JJ., concur. Townsend, J., 1 not participate in the case.

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Bluebook (online)

43 S.W. 861, 1 Indian Terr. 604, 1898 Indian Terr. LEXIS 81, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simon-v-thompson-ctappindterr-1898.