Wood v. Speakman , 153 Okla. 180 ( 1931 )

I am concurring in the conclusion reached by the majority in this case, but I cannot concur in that portion of the opinion which seems to give approval to the rule stated in Littlefield v. Brown, 68 Okla. 144, 172 P. 643.

Section 315, C. O. S. 1921, provides as follows:

"The plaintiff may amend his petition without leave, at any time before the answer is filed, without prejudice to the proceedings; but notice of such amendment shall be served upon the defendant or his attorney, and the defendant shall have the same time to answer or demur thereto as to the original petition."

The evident purpose thereof is that the defendant in an action may have notice of any change in the claim made by the plaintiff in the action. In the absence of notice of the filing of an amended petition, the defendant is authorized to assume that there has been no change made in the claim as stated in the original petition. Such is the effect of the other statutes on pleadings.

No greater right should be given to a defendant against another defendant than is given a plaintiff against a defendant, and a defendant ought not to be permitted to take a judgment against another defendant without giving notice to the defendant of the filing of a claim therefor.

The rule stated in Littlefield v. Brown, supra, is based on the statement made in that case that there is no statute requiring the giving of notice of the filing of a cross-petition. I agree with that statement, and I make the further statement that there is no statute authorizing the filing by a defendant of a cross-petition against another defendant. Since no statutory authority has been given for the filing of a cross-petition, there is no necessity of a statute requiring notice of the filing of a cross-petition.

The filing of a cross-petition by one defendant against another defendant is authorized by no Oklahoma statute. Such practice is authorized by the rules in equity and In order that equity, having assumed jurisdiction, may afford complete relief in one action. The rule is well stated in 21 Corpus Juris, 498. I do not consider it necessary to burden this opinion with a quotation thereof.

The general rule is that, when such a cross-petition is filed, notice of the filing thereof must be given. 21 Corpus Juris, 353.

To hold otherwise is to subject every defendant in a suit to the burden of employing an attorney to represent him in the action or to watch the proceedings in the case from the beginning to the end to prevent a judgment being taken against him on a cross-petition by another defendant.

One might be joined as a defendant in an action to foreclose a real estate mortgage for the purpose of quieting title against some cloud on the title of record in the name of the defendant. The defendant might claim no interest in the property and, after informing himself of the claim of the plaintiff, might decline to employ an attorney and might neglect or be unable to keep himself informed as to the proceedings in the action. He might be a resident of some county situated far removed from the county in which the action is pending.

I cannot give my approval to a rule which authorizes personal judgment to be rendered against him on a cross-petition filed against him by another defendant and of which he has been given no notice. There is nothing in the statute that authorizes such procedure. In my opinion, it is in violation of his rights under the Constitution of the United States. I think that the rule announced in Littlefield v. Brown, supra and stated in Rice v. Bontjes, 121 Okla. 292, 250 P. 89, Harmon v. Nofire,131 Okla. 1, 267 P. 650, and W. W. Bennett Co. v. LaFayette,133 Okla. 233, 271 P. 248, should be overruled. The law ought not to be a trap in which litigants may be caught, and a litigant ought not to be required to employ an attorney to defend himself in an action when he knows that he has no defense to the action. If the cause of action is changed by the filing of an amended petition, a supplement to the petition, or a cross-petition, he should be given notice thereof that he may have an opportunity to defend his rights. If he is to be deprived of that right and if he is to be subjected to a claim of which he is given no notice, in my opinion, it should be by a legislative enactment and not by a decision of a court which has been established to protect rather than to destroy rights. The Legislature of Oklahoma has made no such provision, but, on the contrary, it has said that the plaintiff may amend his petition, but that notice of the amendment shall be served upon the defendant or his attorney (section 315, supra, and section 316, C. O. S. 1921), and that supplemental pleadings may be filed, "on notice." Section 323, C. O. S. 1921.

I am authorized to state that Mr. Justice SWINDALL concurs in the views herein expressed.