# State Ex Rel. Dillard v. Gassaway > Supreme Court of Oklahoma · March 11, 1930 · 142 Okla. 140 URL: https://www.frixlaw.com/law-library/cases/3801124 ## Case - **Full name:** STATE Ex Rel. DILLARD v. GASSAWAY, Judge, Et Al. - **Court:** Supreme Court of Oklahoma - **Decided:** March 11, 1930 - **Citations:** 142 Okla. 140; 285 P. 978; 1930 OK 113; 1930 Okla. LEXIS 82 - **Precedential status:** Published - **Opinion:** Dissent by Clark - **Judges:** Swindall, Mason, Riley, Hefner, Oullison, Andrews, Clark, Lester, Hunt - **Cited by:** 3 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3801124 ## Opinion text CLARK, J. (dissenting). The record in this court discloses that on the 9th day of May, 1929, Vada Dillard filed in the district court of Carter county, Okla., a petition for divorce against her husband, Joe C. Dillard. Said petition was unverified when filed. The record further discloses that on May 10, ÍL929, Vada Dillard verified said petition. Summons was issued out of the said court on; the 9th day of May, 1929, and served on Joe C. Dillard on the 10th day of May, 1929. On the 10th day of May, 1929, the district court made an order to the defendant. Joe O. Dillard, and directed the defendant, Joe C. DiTard, to deliver a Buick automobile, described in plaintiff’s petition, to the sheriff of Carter county. The order further directed the sheriff or other peace officer td seize and hold said automobile, subject to the further orders of the court. Said order was signed by Asa E. Walden, district judge, on May 10, 1929. The sheriff made return on said order, in which he stated that he had in custody the ear described, and stored it in what is known as the Tom C'ooperj Garage in the city of Ardmore, Okla. On the-13th day of May, 1929, the district court of Carter county, in the case of Vada Dillard v. Joe C. Dillard, found that one Cub *143 E. Dillard, respondent herein, had entered the building occupied by the Barrett Motor Company on the 11th day of May, 1929, about t'he hour of 7:30 p. m. and ordered the man in charge to open the back door, which was done, at which time the said Cub E. Dillard, at the time aforesaid, drove the ear out of said building, and has since disappeared. The court, made an order in part as follows: “The court, without determining the ownership of said property, or the rights of the parties herein, or any other parties interested in said property, which matter will be determined at a proper hearing to be had by this court, does hereby order and direct that, the sheriff of Carter county, Okla., or any other peace officer of the state of Oklahoma, to seize said car wherever it may bo found, and hold said car in the custody of the sheriff of Carter county, as herein provided, until further ordered by this court.” On the 16th day of May, 1929, O. G. Maxwell, sheriff of Atoka county, Okla., took charge of said car, under this order, from the possession of Cub If. Dillard. On the 16th or 17th day of May 1929, Cub E. Dillard filed in the district court of Atoka county, Okla., a suit in replevin against C. G. Maxwell, sheriff of Atoka county, for possession of said automobile. The sheriff1 tiled an answer in which he pleaded that he took possession of said automobile by.virtue of the order of Asa E. Walden, district judge of Carter county, Okla., and attached to his answer a copy of said order. Thereafter, Vada Dillard, by her attorneys, Brown & Brown, filed in the district court of Atoka county, Okla., a motion in which she alleged that Cub E. Dillard had taken said car out of Carter county, Okla. She alleged that said automobile had been seized by the sheriff of Carter county, Okla., and placed in the Barrett Motor Company of Ardmore, Okla., as custodian; that on the 10th day of May, 1929, Cub F. Dillard had taken-' said car from Carter county, Okla., without authority of law, without the knowledge or consent of the custodian of said car; and prayed that the district court of Atoka county do not take jurisdiction over said property; that said property be returned to the! sheriff of Carter county to the end that it may be returned to the court over which original jurisdiction over said property -was acquired. On the 13th day of June. 1929, trial was had in the district court of Atoka county, in which the district court adjudged and decreed that the plaintiff, Cub F. Dillard, have immediate possession of said automobile. On the 18th day of June, 1929, Vada.’ Dillard filed in this court her petition for writ of prohibition against the district) court of Atoka county, Okla., P. D. Gassa-way, district judge, and Cub E. Dillard, which prayed she have a writ of prohibition, and that the defendants herein be commanded to desist and retrain from further proceedings in said cause No. 45-1S in, Atoka county, Okla.; that said defendants refrain in any capacity from exorcising jurisdiction over the property mentioned ⅜ said action. Said application for prohibition was served by mailing a copy to Mr. I. L, Cook, attorney of record for Cub E. Dillard, attorney at law, xVtoka, Okla. Alternative writ of prohibition was issued out of this court on the 27th day of June, 1929. Nothing on said writ, filed herein, shows that said writ was ever served on P. B. Gassaway, district judge. This court has held in numerous cases that the writ of prohibition will not issue to prohibit a court from entering a judgment after said judgment has been entered. The judgment com--plained of herein was entered by the district court of Atoka county, and became final on the 13th day of. June, 1929. The application for a writ of prohibition was filed in this court on the 18th day of June, 1929. The record in this court discloses that petitioner was not entitled to the relief prayed. The majority opinion holds that the district court of Carter county had jurisdiction of this property and having jurisdiction of the property, its orders were binding on the defendant, Cub F. Dillard» and on the district court of Atoka county, Okla. Said rule is contrary to the former holding pf this court and of the great weight of authority as announced by this court in the case of Town of Buffalo v. Walker, 126 Okla. 6 , 257 Pac. 766 , the second paragraph of the syllabus of which reads as follows: “Where it is contended that the rights of innocent third parties are involved in an' action and they are not made parties td the action, their rights cannot be determined in the triál court nor by appeal to this court.” This is but a brief statement of the law as has been announced by this court since its organization. Cub E. Dillard, not being a party to the cause in Carter county, and no attempt having been made by petitioner to make him a party, he is not bound by the orders of the district court of Carter county made affecting his property or the right of possession of his property. This court, in the case of Winona Oil Co. v. Barnes, 83 Okla. 248 , 200 Pac. 981 , in the eighth paragraph of the syllabus said: •‘A judgment is ‘void’ when it affirmatively *144 .tuent :isL’iS-on icial appears from the inspection of the judgn roll that any one of three following dictional elements are absent: First, ju diction over the person; second, jurisdictii of the subject-matter; and third, jud:‘ power to render the particular judgment. pec-bar is, me .¿ott It affirmatively appears from the ins; tion of the judgment roll of the case at that the first essential was lacking, that jurisdiction over the person. The Supreme Court of United States, in the case of Scott v. McNeal, 154 U. S. 34 , at page 46, said ess the “No judgment of a court is due pro less conclusive because it is based upon a mistake of law.” In Chivers v. Board of Com’rs of Johnston County, 62 Okla. 2 , 161 Pac. 822 , at page 824, this court says in its opinion: “If the court had jurisdiction of the parties and subject-matter, and rendered a judgment within the issues, though such judgment might have been erroneous and reversible for error of law committed by the trial court, the judgment is not void, and the statute re.ating to vacating void judgments is not applicable to it.” The district court of Atoka county having jurisdiction of the parties, the subject-matter, and jurisdiction to enter the particular judgment, the same was binding. This judgment was binding on all parties to the action, and not subject to collateral attack by prohibition. The district court of Atoka county tried this replevin suit and entered its final judgment, having all the parties before it that are 'before this court. Under the law as heretofore announced by this court, the same was binding and became final unless reversed, modified, or vacated on appeal. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3801124. Public record. Not legal advice.