This being an appeal from a judgment rendered on default, it is essential *Page 444 to determine whether the allegations of the plaintiff's petition, admitting the same to be true, constitute cause of action. Lewis et al. v. Clements, 21 Okla. 167, 95 P. 769; LeForce v. Haymes, 25 Okla. 190, 105 P. 644; InternationalHarvester Co. v. Cameron, 25 Okla. 256, 105 P. 189.
The petition or complaint substantially alleges an equitable title, with prior possession, in the plaintiff (defendant in error), and that the defendants went into possession of a portion of said land under an executory contract with said plaintiff; that afterwards said parties, together with their codefendants, acquired the legal title by virtue of a townsite proceeding, the Secretary of the Interior having canceled the allotment filing, although a certificate had been issued therefor, and segregated such land for townsite purposes, platting the same into a townsite; the lots of said tract of land involved in this controversy being scheduled and patented to said defendants. But see Ballinger, Secretary of theInterior, v. United States ex rel. Belle Frost (decided by the Supreme Court of the United States on February 21, 1910),216 U.S. 240, 30 Sup. Ct. 338, 54 L.Ed. ___; Godfrey v. Iowa Land Trust Co., 21 Okla. 293, 95 P. 792; De Graffenreid et al. v.Iowa Land Trust Co., 20 Okla. 687, 95 P. 624. The question here involved is as to whether a party having the equitable title either in possession of a part of the land or out of possession of all of it may maintain a bill in equity to quiet the title in him to said land. This action was pending at the time of the erection of the state government, and, by virtue of the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267) and the Schedule to the Constitution, the procedure as it existed in the Indian Territory prior to such time at least as to substantial rights obtains in the trial of this cause. Such procedure, being contained in chapter 119, Mansf. Digest (Ark.) 1884, and chapter 54, Ind. T. St. 1899, was extended by Act Congress May 2, 1890, c. 182, 26 Stat. 81. See, also, England Bros. v. Young, infra, 110 P. 895. *Page 445
In Branch v. Mitchell, 24 Ark. 431, in an opinion by the Honorable Albert Pike as special judge, the court said:
"Where one holding an equitable title only to lands, or a junior legal title with prior or superior equities, comes into a court of equity, to impeach and cancel, or compel a conveyance of, the senior or better legal title, the jurisdiction of the court in no wise depends on the question of possession."
In Lawrence v. Zimpleman, 37 Ark. 643, the court said:
"To obtain the relief sought, the plaintiff must be in possession when he brings the suit, unless his title be an equitable one. A court of chancery is not the appropriate forum to try a purely legal title. The defendant, if he is in actual possession, is entitled to a trial by jury, unless there are peculiar circumstances bringing his case under some one of the recognized heads of equity jurisdiction. The case of Shell v.Martin, 19 Ark. 139, which holds to the contrary of this, was disapproved by Mr. Justice Fairchild in Apperson v. Ford,23 Ark. 746, and has been discredited by the later decisions.Branch v. Mitchell, 24 Ark. 431; Byers v. Danley, 27 Ark. 77;Miller v. Neiman, 27 Ark. 233; Chaplin v. Holmes,27 Ark. 414; Sale v. McLean, 29 Ark. 612; Crane v. Randolph,30 Ark. 579."
In Bryan et al. v. Winburn et al., 43 Ark. 28, the court said:
"It is contended that the plaintiffs were not in possession when the bill was filed. Unless the plaintiff's title be merely an equitable one, incapable of effectual assertion at law, possession is necessary to give a court of chancery jurisdiction in a suit of this character. Lawrence v.Zimpleman, 37 Ark. 643, and cases cited."
These decisions existed on May 2, 1890, at the time said laws of Arkansas were extended by act of Congress in force in the Indian Territory, and, this being a pending case at the time of the erection of the state, such Arkansas decisions seem to be controlling here. It follows that the complaint or petition on its face stated a cause of action.
In Bond v. White, 8 Kan. 333, the sheriff's return as to the service of summons relative to the place of residence of the defendant, or the age of the party with whom the summons was left, was shown to have been false, on motion to have the judgment set aside. As to this judgment, on the ground that neither had any *Page 446 service been had, nor any authorized appearance made, by the current weight of authority, it may be shown by parol that the appearance of the attorney was unauthorized, and, as such was done without the knowledge of the parties, may be set aside. The record shows the general appearance on the part of the defendants by their attorney, R. P. Stewart, by filing a demurrer on July 23, 1907, to plaintiff's complaint, and on April 1, 1908, a motion to transfer the cause to the federal court, and on April 2, 1908, a plea to the jurisdiction of the court. The record further recites that on January 4, 1908, demurrer was withdrawn and defendants allowed 30 days in which to plead. On April 10, 1908, petition for removal was denied, plea to jurisdiction overruled, and defendants given 10 days in which to answer. On April 16, 1908, the date on which the cause was set for trial, judgment was rendered on default.
There is no contention that any of the defendants were served with summons except the Wheatland Grain Lumber Company, F. G. Henry, H. E. Green, and G. A. Hosey; it being insisted that appearance of the other parties was by their attorney, R. P. Stewart, which is denied by them. No counteraffidavits are filed to those setting up the fact that no authorized appearance was made. In Nicoll et ux. v. Midland Savings LoanCo. of Denver, 21 Okla. 591, 96 P. 744, it was held that, where a judgment was rendered without any service or appearance on the part of the defendant, such a judgment was void, and may be vacated and set aside at any time on motion of the defendant. See, to the same effect, Nicholson et al. v. MidlandSavings Loan Co. of Denver, 21 Okla. 598, 96 P. 747. But in said cause the infirmity appeared of record. In this case the vice does not appear of record. Section 6101 (section 4471, St. Okla. T. 1893), Comp. St. 1909, provides that proceedings to vacate or modify a judgment or order on the ground that the defendant was not summoned or otherwise legally notified of the time and place of taking of such judgment must be commenced within one year after *Page 447 the time the defendant has notice of the judgment. Said section further provides that a void judgment may be vacated at any time on motion by a party or other person affected thereby. See, also, Stark Bros. v. Glaser et al., 19 Okla. 502,91 P. 1040.
It being permissible to show by parol at least at the term of court at which the default judgment was rendered, where there is no service of the summons and appearance is made by an attorney, that the same was unauthorized, it follows that the court had no jurisdiction over the person of such defendant, and that the judgment was void, and under section 6101,supra, a void judgment may be vacated at any time on motion by a party or other person affected thereby.
Further, it is urged by counsel that the judgment against a portion of the plaintiffs in error in this action being void, it was erroneous as to the four parties that were served with summons. In Cheek et al. v. Pugh, 19 Ark. 574, the court said:
"It is insisted by the counsel for the appellants that the judgment against them in the attachment suit being void as to them was void also as to Southall. That it was a mere nullity as to them there can be no doubt. They were not parties to the action. Pugh was the plaintiff, and Southall the defendant in the attachment suit. His property was seized under the writ, and, in order to release it, he executed the bond sued on in this case, with the appellants as sureties. When judgment was finally rendered against his administrator, it was also without authority of law, and perhaps by mistake of the clerk, rendered against the appellants as securities in the replevin bond. There was no proceeding before the court upon which the judgment against them could be based. But the judgment was not void as to the administrator of Southall, who was the only defendant in the suit."
This action was begun under the Arkansas procedure, and, although the judgment was rendered in the district court after the erection of the state, we should in this case follow the Arkansas rule, and hold that, although said judgment may be void as to the parties not served, yet that it is neither void nor erroneous so as to require a reversal as to the parties served with summons, especially *Page 448 as the attorney duly authorized appearing for the parties served entered the appearance without authority at the same time for the parties not served. The four parties that were served thereby had knowledge at the time the judgment was rendered that the appearance made for the other parties was void, and now they cannot be heard to complain. Allen v.McCalla, 25 Iowa, 464, 96 Am. Dec. 56; Haven v. Snow, 14 Pick. (Mass.) 28; Bierce et al. v. Red Bluff Hotel Co., 31 Cal. 161;Stewart v. Sprague et al., 71 Mich. 50, 38 N.W. 673; 3 Am. Eng. Ency. of Law (2d Ed.) p. 322.
As to the plaintiffs in error the Wheatland Grain Lumber Company, F. P. Henry, H. E. Green, and G. A. Hosey and any others that were served with summons, the judgment of the lower court is affirmed, and, as to the other plaintiffs in error, the judgment is reversed, with instructions to set aside same and proceed in accordance with law.
All the Justices concur, except HAYES, J., disqualified and not participating.