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Attorney(S)
  • Loyal J. Miller, for plaintiff in error. Warren K. Snyder, for defendant in error.
Judges
  • Opinion by RAY, C.
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Citation Codes
Equivalent Citations
citation codes
Docket Number
Attorney(S)
  • Loyal J. Miller, for plaintiff in error. Warren K. Snyder, for defendant in error.
Judges
  • Opinion by RAY, C.
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Smart Summary

Reynolds v. Reynolds, No. 12986 — Oklahoma Supreme Court (Oct. 2, 1923; rehearing denied Dec. 11, 1923)

Factual and Procedural Background

Ella Reynolds (plaintiff below) sued Matthew Reynolds for divorce, alimony, division of property, custody of minor children, suit money, and attorney's fee. The defendant filed a cross-petition for divorce. The trial court filed findings of fact and conclusions of law on September 9, 1921, awarding the defendant a divorce, custody of the minor children, $750 alimony to the plaintiff, $25 to the plaintiff's attorney (as per an original order), and court costs; each party to pay the fees and mileage of their respective witnesses.

On September 9, 1921, plaintiff filed a motion for a new trial (grounds included that the findings were not supported by sufficient evidence and were contrary to law/evidence). That motion was overruled on September 20, 1921; plaintiff excepted and gave notice of appeal in open court, which the clerk entered on the trial docket under chapter 219, Session Laws 1917. Plaintiff was given time to prepare and serve a case-made, and multiple extensions were granted through January 7, 1922.

Plaintiff filed a motion for judgment on the court's findings on January 6, 1922, calling attention to the absence of a formal journal entry. While that motion was pending, on January 10, 1922, the court signed and filed a journal entry of judgment styled as of September 9, 1921. Plaintiff filed another motion for new trial January 11, 1922; it was overruled the same day. The plaintiff again gave notice of intent to appeal in open court (entered by the clerk). On January 12, 1922, plaintiff filed with the clerk the written notice of appeal required by the divorce statute (section 4971, Rev. Laws 1910 / 510 Comp. Stat. 1921). The petition in error with the case-made was filed in the Supreme Court on January 19, 1922.

The defendant moved to dismiss the appeal on the ground that the written notice required by the divorce statute was not filed within ten days after the judgment was rendered and the appeal was not perfected within four months from the rendition of judgment.

Legal Issues Presented

  1. Whether the trial court's findings and conclusions filed September 9, 1921 constituted the final judgment (so that the ten-day period to file the written notice of appeal under section 4971 began then), or whether the judgment date was the later date the formal journal entry was filed (January 10, 1922).
  2. Whether section 4971, Rev. Laws 1910 (510 Comp. Stat. 1921), requiring a written notice of intention to appeal within ten days in divorce cases, was repealed by chapter 219, Session Laws 1917 (a general appeal statute).
  3. Whether failure to file the written notice required by the divorce statute within the prescribed time deprived the Supreme Court of jurisdiction to entertain the appeal.

Arguments of the Parties

Plaintiff in Error (Ella Reynolds)

  • Contended the judgment from which she sought to appeal was entered January 10, 1922 (the date the journal entry was signed and filed), not September 9, 1921 when findings were filed; thus the time to file the written notice required by the divorce statute did not begin until the later date.
  • Contended that section 4971, Rev. Laws 1910 (510 Comp. Stat. 1921) was repealed by chapter 219, Session Laws 1917, and that only the notice procedure in the 1917 act was necessary.

Defendant in Error (Matthew Reynolds)

  • Moved to dismiss the appeal on the ground that the written notice required by the divorce statute (section 4971 / 510 Comp. Stat. 1921) was not filed with the clerk within ten days after the judgment was rendered and that the appeal was not perfected within four months from rendition of judgment.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Orcut v. Orcut, 25 Okla. 855, 108 P. 373 Holds that the notice required by section 4971 (sec. 510 Comp. Stat. 1921) is jurisdictional. Cited among authorities establishing that the written notice in divorce appeals is jurisdictional.
Rogers v. Rogers, 38 Okla. 195, 132 P. 476 Holds that the notice required by section 4971 is jurisdictional. Used to support the proposition that failure to file the statutory notice deprives the court of jurisdiction.
Milam v. Milam, 76 Okla. 62, 184 P. 442 Holds that the notice required by section 4971 is jurisdictional. Cited as authority that the divorce-statutory notice is jurisdictional.
Linkugel v. Linkugel, 74 Oklahoma, 183 P. 55 States: "Where an appeal is prosecuted for the purpose of having reviewed the judgment and decree granting a divorce, awarding permanent alimony and the custody of a minor child, the notice of intention to appeal must be filed within 10 days from the date of the decree and the appeal must be perfected within 4 months, as prescribed by section 4971..." The court followed and adopted the pronouncement in Linkugel to hold that when appeal is from a divorce decree (with alimony and custody) the written notice and time limits of section 4971 are required and jurisdictional; this case was decided in conformity with Linkugel.
Vogt v. Vogt, 91 Okla. 272, 217 P. 192 Holds that the notice required by section 4971 is jurisdictional. Cited among cases establishing the jurisdictional nature of the statutory notice.
Lewis v. Lewis, 39 Okla. 407, 135 P. 397 Holds that the statutory notice is required only where appealing from a judgment granting a divorce, not where appealing from an order awarding alimony or dividing property. Cited as authority for a more limited application of the statutory notice; the court noted these prior holdings but distinguished the present appeal because it was from the divorce decree itself.
Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288 Holds that the statutory notice is required only where appealing from a judgment granting a divorce, not for appeals from orders awarding alimony or dividing property. Referenced with Lewis and Howell as earlier holdings on the limited scope of the divorce-notice requirement.
Howell v. Howell, 42 Okla. 286, 141 P. 412 Holds that the statutory notice is required only where appealing from a judgment granting a divorce, not for appeals from orders awarding alimony or dividing property. Cited as among precedents narrowing the notice requirement's scope; the court distinguished those cases from the present appeal.
Ex parte Crow Dog, 109 U.S. 556 General rule: a general act is not to be construed to repeal a prior particular act unless express reference or necessary inconsistency exists. Used to support the court's conclusion that chapter 219, Laws 1917 (a general appeals act), did not repeal the special divorce statute (section 4971) absent express repeal or inconsistency.
Goodson v. U.S., 7 Okla. 117, 54 P. 423 Same principle: a general statute does not repeal a special statute absent express reference or necessary inconsistency. Cited in support of the rule that the 1917 general appeals act did not repeal the specific divorce-notice statute.

Court's Reasoning and Analysis

The court concluded the motion to dismiss the appeal should be sustained. Its analysis proceeded in these steps:

  1. The court determined the findings of fact and conclusions of law filed September 9, 1921 were sufficient to constitute the judgment of the court as of that date. The later preparation and filing of a formal journal entry (signed and filed January 10, 1922 but made effective as of September 9, 1921) did not change the date of the judgment. The court relied on the established practice of preparing a formal journal entry after announcement of decision and concluded the judgment date remained the date the findings were filed.
  2. Because the order overruling the plaintiff's motion for a new trial was on September 20, 1921, the ten-day period prescribed by section 4971 to file the written notice of intention to appeal began to run from that date.
  3. The plaintiff filed the notice required by chapter 219, Session Laws 1917 (entered in open court and on the trial docket) but did not file the written notice required by the divorce statute (section 4971 / 510 Comp. Stat. 1921) within ten days; she filed that written notice only on January 12, 1922, well after the statutory period.
  4. The court addressed the argument that the 1917 act repealed section 4971. Applying the rule that a general act will not be construed to repeal a prior particular act unless there is express reference or necessary inconsistency (citing Ex parte Crow Dog and Goodson v. U.S.), the court found no express repeal or inconsistency. The 1917 act related to the method of appealing (abolishing summons in error and prescribing service of the case-made) while section 4971 governed the legal status of parties and additional procedural requirements specific to divorce judgments. Thus the two statutes operate on different subjects and are not inconsistent.
  5. The court reconciled the two requirements by concluding that in divorce appeals where the decree grants a divorce (and awards permanent alimony and custody), both the in-court notice entered on the trial docket (per chapter 219) and the written notice filed with the clerk pursuant to section 4971 must be given; section 4971 remains in force and its time limits are jurisdictional. The court followed Linkugel v. Linkugel in holding that failure to comply deprives this court of jurisdiction.

Holding and Implications

DISMISSED.

Holding (core rulings):

  • The court held the final judgment was dated September 9, 1921 (the date the findings and conclusions were filed), not the later date the formal journal entry was filed.
  • The court held that section 4971, Rev. Laws 1910 (510 Comp. Stat. 1921), was not repealed by chapter 219, Session Laws 1917; both statutes apply and are not inconsistent.
  • The court held the written notice of intention to appeal required by section 4971 is jurisdictional in appeals from a decree granting a divorce (particularly where permanent alimony and custody are involved), and because plaintiff did not timely file that notice, this Court lacked jurisdiction and the appeal must be dismissed.

Implications:

  • The direct legal effect is dismissal of the appeal filed by Ella Reynolds and the affirmation that the September 9, 1921 findings constituted the judgment for purposes of appeal timing.
  • The opinion enforces the coexistence of the 1917 general appeals act (chapter 219) and the specific divorce-notice statute (section 4971), requiring compliance with both procedures in appeals from divorce decrees granting divorce, permanent alimony, and custody; the court applied existing precedent (not announcing a newly created rule beyond those authorities).

By the Court: It is so ordered.

Show full summary ...

REYNOLDS v. REYNOLDS

1. Judgment — Date — Journal Entry — Divorce Action.

Where, in an action for divorce, alimony, and the custody of minor children, the court made special findings of fact and conclusions of law containing his decision on the questions involved, and caused the same to be filed in the case, and thereafter signed and caused to be filed a journal entry of judgment as of the day the original findings were filed, held, final judgment was of the day the findings were filed and not of the day the journal entry of judgment was in fact filed.

2. Divorce — Notice of Appeal — Statutes.

That part of section 4971, Rev. Laws 1910 (510 Comp. Stat. 1921), which provides that a party desiring to appeal from a judgment granting a divorce must, within ten days after such judgment is rendered, file a written notice in the office of the clerk of the court, duly entitled in such action, stating that it is the intention of such party to appeal from such judgment, was not repealed by chapter 219. Session Laws 1917.

3. Same.

Where an appeal is prosecuted for the purpose of having reviewed the judgment and decree granting a divorce, awarding permanent alimony, and the custody of the minor children and attorney's fees, the notice of intention to appeal must be filed within 10 days from the date of the decree as prescribed by section 4971, Rev. Laws 1910 (510, Comp. Stat. 1921.), otherwise this court is without jurisdiction to entertain the appeal.

(Syllabus by Ray, C.) Commissioners' Opinion, Division No. 1.

Opinion by RAY, C.

We think the motion to dismiss the appeal should be sustained. The plaintiff in error, plaintiff below, sued for divorce and alimony, for a division of the property, custody of the minor children, suit money and attorney's fee. The defendant filed a cross-petition for divorce. The court made findings of fact and conclusions of law which were filed September 9, 1921, and which concluded as follows:

"The defendant is better able to take care of the minor children than the plaintiff, and is awarded the care, custody and control of them. He is also granted a divorce, but will be required to pay alimony to the plaintiff in the sum of $750 and $25 to plaintiff's attorney as per the original order of the court and pay all court costs. The plaintiff and defendant will each pay the fees and mileage of their respective witnesses."

On the same day the plaintiff filed motion for a new trial upon the following grounds:

"* * * (5) That the findings and decision are not supported by sufficient evidence.

"(6) That the findings and decision are contrary to law.

"(7) That the findings and decision are contrary to the evidence. * * *"

September 20, 1921, the motion for a new trial was overruled, to which plaintiff excepted and in open court gave notice of appeal, and the clerk, by order of the court, entered the same on the trial docket as required by chapter 219, Session Laws 1917, (sec. 782. Comp. Stat. 1921). The plaintiff was given 30 days to make and serve case-made. On her application time was extended for making and serving case-made five different times, the last extension being to and including the 7th day of January, 1922. January 6, 1922, plaintiff filed a motion for judgment on the court's findings of September 9, 1921. This motion called the attention of the court to the fact that no journal entry of judgment had been entered upon the findings. January 7, 1922, on application of the plaintiff, time to make and serve case-made was extended to January 9, and on the 9th was again extended to and including the 13th day of January, 1922. January 10, 1922, and while the motion for judgment on the findings was pending, the court signed and caused to be filed a journal entry of judgment upon the findings as of September 9, 1921. The next day, January 11, the plaintiff's motion for judgment upon the pleadings was overruled, and, on the same day, plaintiff filed another motion for a new trial, setting up the same grounds in the same language as the former motion, with these two grounds added:

"(10) For the reason that no judgment of the court has been rendered and entered, to which omission the court's attention has been called.

"(11) Error of the court in finding in favor of defendant on the issue of divorce and the custody of the minor children."

On the same day the last motion for a new trial was overruled. The plaintiff again gave notice in open court of her intenton to appeal which was, as before, entered by the clerk upon the trial docket. Consideration of the motion for judgment on the findings and of the last motion for a new trial was over the objections of the defendant, but the court. after stating that judgment was in fact rendered on the 9th day of September, 1921, permitted counsel for plaintiff to make whatever record he desired for the purpose of presenting the question on appeal. January 12, 1922, the plaintiff filed with the clerk of the court notice of appeal as required by the divorce statute (4971, Rev. Laws 1910, [510, Comp. Stat. 1921]). January 19, 1922, the petition in error with case-made attached was filed in this court.

Counsel for plaintiff in error contends that the judgment from which she seeks to appeal was entered January 10, 1922, and not September 9, 1921. In other words, it is contended that the findings and conclusions of the court filed September 9, 1921, were not a judgment, and the subsequent filing of the journal entry as of that date did not make it a judgment of September 9, 1921, but a judgment as of the date it was actually filed, January 10, 1922. With this contention we cannot agree. The custom of drawing up the formal journal entry of judgment by counsel after trial, for the signature of the trial judge, to be filed as of the day judgment was actually announced by the court, has been too long recognized by the bench and bar for the contention to merit serious consideration. We think the judgment from which plaintiff in error seeks to appeal was of date September 9, 1921, and that the order overruling the motion for a new trial, from which, the ten-days for going notice of appeal must be calculated, was September 20, 1921. The findings and conclusions of the court, filed September 9, were sufficient to constitute a judgment if no formal journal entry of judgment had been signed and filed. The defendant in error moved to dismiss the appeal upon the ground that no notice of appeal was filed with the clerk of the court within ten days after the judgment was rendered and was not appealed within four months from the date of the rendition of judgment.

Plaintiff in error gave the notice of appeal required by chapter 219, Session Laws 1917, but did not file with the clerk of the court the notice required by the divorce statute, section 510, Comp. Stat. 1921 (4971, Rev. Laws 1910), until January 12, 1922, more than three months after the motion for new trial was overruled. It has been held by this court in Orcut v. Orcut, 25 Okla. 855, 108 P. 373; Rogers v. Rogers, 38 Okla. 195, 132 P. 476; Milam v. Milam, 76 Okla. 62, 184 P. 442; Linkugel v. Linkugel, 74 Oklahoma, 183 P. 55, and Vogt v. Vogt, 91 Okla. 272, 217 P. 192, that the notice required by section 510, Comp. Stat. 1921 (sec. 4971, Rev. Laws 1910), is jurisdictional. In Lewis v. Lewis, 39 Okla. 407, 135 P. 397, Montgomery v. Montgomery, 41 Okla. 581, 139 P. 288, and Howell v. Howell, 42 Okla. 286, 141 P. 412, this court held that such notice was required only where it is sought to appeal from a judgment granting a divorce and not where the appeal is prosecuted from an order awarding alimony or making a division of property in divorce proceedings. But in Linkugel v. Linkugel, supra, a later case, the opinion by Galbraith, Commissioner, "adopted in whole" the court, it was said:

"Where an appeal is prosecuted for the purpose of having reviewed the judgment and decree granting a divorce, awarding permanent alimony and the custody of a minor child, the notice of intention to appeal must be filed within 10 days from the date of the decree and the appeal must be perfected within 4 months, as prescribed by section 4971, Rev. Laws 1910, otherwise this court is without jurisdiction to entertain the appeal."

In this case the appeal is from the decree of divorce as well as from the decree awarding alimony and the custody and control of the minor children. The 9th assignment of errors is as follows:

"There was error of the court in finding that the defendant in error was entitled to a divorce from the plaintiff in error over the objections and exceptions of the plainitff in error."

It is contended by plaintiff in error that section 4971, Rev. Laws 1910 (510 Comp. Stat. 1921), which requires notice of appeal to be filed with the clerk of the court, was repealed by the act of 1917, and that the only notice required is that provided for in the last named act. We are unable to reach that conclusion. Section 4971 is a special statute relating to divorce actions only. The 1917 act is a general statute governing appeals in all cases. A general act is not to be construed to repeal a previous particular act, unless there is some express reference to the previous legislation on the subject, or unless there is a necessary inconsistency in the two acts standing together. Ex parte Crow Dog, 109 U.S. 556; Goodson v. U.S., 7 Okla. 117, 54 P. 423. In this case the two sections relate to different subjects and are not inconsistent. Chapter 219, Laws 1917, brought forward as section 510, Comp. Stat. 1921, was enacted for the purpose of doing away with the summons in error and its attendant difficulties as to service upon the parties. To that extent it affects appeals in divorce cases as well as all others. It was entitled:

"An Act regulating appeals to the Supreme Court of the state of Oklahoma. Abolishing summons in error, providing on whom the case-made shall be served, and the necessary parties to the petition in error, repealing sections 5238 and 5239, Revised Laws of 1910; enacting a section in place thereof, and declaring an emergency."

Sections 5238 and 5239, repealed, governed the issuance and service of summons in error. The section as amended takes the place of the two repealed sections. It affects the method of appeal only. Section 4971, Rev. Laws 1910, fixes the legal status of the parties to the action pending appeal. It requires the party appealing to file in the office of the clerk of the court a written notice, duly entitled in such action, stating his intention to appeal. It further provides that if the notice be filed and the proceedings in error commenced within four months from the rendition of judgment then it shall be unlawful for either party to marry any other person until the expiration of 30 days from the final judgment rendered pursuant to such appeal. The two acts are not inconsistent. The most that can be said is that in divorce cases, where the decree granting a divorce is appealed from, two notices of appeal are required, the only difference being that one must be given in open court and entered by the clerk on the trial docket, and the other must be in writing, duly entitled in such action, and filed in the office of the court clerk. One is entered on the trial docket and the other upon the appearance docket. The two sections are upon different subjects, not inconsistent, and enacted for entirely different purposes.

We think, following Linkugel v. Linkugel, supra, this court is without jurisdiction and the appeal should be dismissed.

By the Court: It is so ordered.

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REYNOLDS v. REYNOLDS
(Oct 2, 1923)