Wakeman v. Peter

Supreme Court of Oklahoma

Wakeman v. Peter

1915 OK 825, 152 P. 455, 52 Okla. 639, 1915 Okla. LEXIS 344

CourtSupreme Court of Oklahoma

DecidedOctober 19, 1915

Docket5381

StatusPublished

Cited by2 cases

This text of 1915 OK 825 (Wakeman v. Peter) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wakeman v. Peter, 1915 OK 825, 152 P. 455, 52 Okla. 639, 1915 Okla. LEXIS 344 (Okla. 1915).

Pincite

Opinion

Opinion by

DEVEREUX, C.

(after stating the facts as above). The only question presented by the briefs is: Was the cause of action barred by the statute of limitation, the plaintiff in error contending that it is an action on a judgment of the county court, and therefore noV barred until five years from the date of the judgment, and the defendant in error contending that it is an action on an express or implied contract, not in writing, and is therefore barred in three years. Rev. Laws 1910, section 6190, under “Probate Procedure,”, provides:

*641 “The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts.”

In Greer v. McNeal, 11 Okla. 519, 69 Pac. 891, it is held that the probate court is, upon all matters upon which it is authorized to deal, and of which it has jurisdiction, a court of record and of final authority, and its final judgments are absolute, unless appealed from, and this case has been followed in Southern Surety Co. v. Burney, 34 Okla. 552, 126 Pac. 748, 43 L. R. A. (N. S.) 308, and Shipman v. Brown, 36 Okla. 623, 130 Pac. 603.

But an action on a judgment is not an action on a contract, express or implied, within the meaning of these words as used in the statute. In Morley v. Lake Shore Railway Company, 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925, .in passing on the question whether a judgment is a contract, the court says:

“The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. ‘A judgment is in no sense a contract or agreement between the parties.’ ”

And see McDonald v. Dickson, 87 N. C. 404; Pease v. Howard, 14 Johns. (N. Y.) 479.

The cause of action therefore, was not barred.

We recommend that the judgment be reversed, and the 'cause remanded for a new trial.

By the Court: It is so ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

DEVEREUX, C.

(after stating the facts as above). The only question presented by the briefs is: Was the cause of action barred by the statute of limitation, the plaintiff in error contending that it is an action on a judgment of the county court, and therefore noV barred until five years from the date of the judgment, and the defendant in error contending that it is an action on an express or implied contract, not in writing, and is therefore barred in three years. Rev. Laws 1910, section 6190, under “Probate Procedure,”, provides:

*641 “The proceedings of this court are construed in the same manner, and with like intendments, as the proceedings of courts of general jurisdiction, and to its records, orders, judgments and decrees, there are accorded like force, effect and legal presumption as to the records, orders, judgments and decrees of district courts.”

In Greer v. McNeal, 11 Okla. 519, 69 Pac. 891, it is held that the probate court is, upon all matters upon which it is authorized to deal, and of which it has jurisdiction, a court of record and of final authority, and its final judgments are absolute, unless appealed from, and this case has been followed in Southern Surety Co. v. Burney, 34 Okla. 552, 126 Pac. 748, 43 L. R. A. (N. S.) 308, and Shipman v. Brown, 36 Okla. 623, 130 Pac. 603.

But an action on a judgment is not an action on a contract, express or implied, within the meaning of these words as used in the statute. In Morley v. Lake Shore Railway Company, 146 U. S. 162, 13 Sup. Ct. 54, 36 L. Ed. 925, .in passing on the question whether a judgment is a contract, the court says:

“The most important elements of a contract are wanting. There is no aggregatio mentium. The defendant has not voluntarily assented or promised to pay. ‘A judgment is in no sense a contract or agreement between the parties.’ ”

And see McDonald v. Dickson, 87 N. C. 404; Pease v. Howard, 14 Johns. (N. Y.) 479.

The cause of action therefore, was not barred.

We recommend that the judgment be reversed, and the 'cause remanded for a new trial.

By the Court: It is so ordered.

Cite This Page — Counsel Stack

Bluebook (online)

1915 OK 825, 152 P. 455, 52 Okla. 639, 1915 Okla. LEXIS 344, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wakeman-v-peter-okla-1915.

Opinion

Related

Cite This Page — Counsel Stack