This is an appeal from a motion to vacate a judgment entered on April 8, 1926. On November 6, 1925, Lucille Kelly instituted an action in the district court of Alfalfa county against Rachel Oliver, Inez Lindley, Vivian Slane, James Irvin, and Oswald Thieme, trustee. The petition alleged that the plaintiff and the defendants Inez Lindley, Vivian Slane, and James Irvin were the owners of a certain tract of land; that Rachel Oliver was in possession of the same by reason of a deed which she had received from Oswald Thieme, trustee, for said Lucille Kelly, and the aforesaid Rachel Oliver, Inez Lindley, Vivian Slane, and James Irvin; that the said Oswald Thieme had received a trustee deed for the use and benefit of said parties, and that the said Rachel Oliver wrongfully kept them out of possession, and plaintiff prayed for a determination of title, partition, rents and profits, and general relief. It appears that the defendant Rachel Oliver prosecuted an appeal to this court, reported in the case of Oliver v. Kelly, 129 Okla. 121,263 P. 649, from a judgment which is now attempted to be attacked by said motion to vacate. That case was dismissed on the ground of failure to give notice of appeal in open court either at rendition of judgment or within 10 days thereafter, as prescribed by section 782, C. O. S. 1921 [O. S. 1931, sec. 531].
In this case it appears that service of summons by publication was made upon three of the defendants, to wit: Rachel Oliver. Vivian Slane, and James Irvin. The defendant Rachel Oliver contends that the service of summons was void by reason of certain irregularities which were presented by a motion entitled "Special Appearance and Motion to Quash." It was urged that the publication was based upon an affidavit made by one of the attorneys in the case, subscribed and sworn to before Myrtle Youngberg, who also appeared of record as one of the attorneys in the case, and also that the publication notice was filed on November 6, 1925, while the affidavit on which it was based was sworn to on October 28, 1925. The motion came on for hearing on January 29, 1926, and the same was overruled by the court in the absence of counsel for the defendant, the court saving and allowing to said defendants an exception and ordering that defendants plead to plaintiff's petition within 20 days thereafter. On February 17, 1926, counsel for the defendants Rachel Oliver, Vivian Slane, and James Irvin filed a motion to strike from the files the affidavit for service by publication, the affidavit of mailing of notice by publication, and copy of the petition and the affidavit of publication, for the reason that the affidavit for service by publication was subscribed and sworn to before one of the attorneys of record in the case. On April 2, 1926, the court heard the motion of the defendants to strike, the plaintiff appearing by E.C. Wilcox, her attorney, and the defendants appearing not in person nor by counsel. The court permitted plaintiff to amend the affidavit filed for service by publication by attaching thereto an affidavit that the same was true at the commencement of the action, and permitted the name of Myrtle Youngberg to be stricken from the petition where the same appeared to have been signed by inadvertence. The affidavit was reverified. The court also found at said hearing that defendants' counsel had been notified that said motion would be heard on April 2, 1926, at 10 a. m. or as soon thereafter as counsel could be heard. The court overruled the motion to strike.
Plaintiff then presented her motion for judgment on the pleadings which had been filed on April 1, 1926. The court continued the hearing on said motion until April 8, 1926, and made the further order that defendants have five days from said date (April 2, 1926) to file answer to plaintiff's petition, and that if said answer was not filed within said time default would be declared, and allowed exceptions to said rulings to defendants. On April 8, 1926, the defendants being in default, the plaintiff demanded a trial and introduced evidence in support of her cause of action. The court rendered judgment in favor of plaintiff, *Page 57 finding that the plaintiff and the defendants, to wit; Inez Lindley, Vivian Slane, and James Irvin, were the owners of an undivided one-fourth interest in said real estate and entitled to the possession of same as against the defendant Rachel Oliver, and ordered the same partitioned subject to a certain mortgage appearing of record.
The defendants Rachel Oliver, Vivian Slane, and James Irvin, on April 11, 1926, filed a motion to set aside and vacate said judgment. We are not concerned with the controversy in reference to the date of this filing. It appears that it was received by the court clerk on April 11, 1926, through the United States mail and received at his home. The delay in the actual filing was due to the court clerk being confined to his home on account of sickness. The court ordered the same filed as of the date it was received by the court clerk. When said defendants appealed from said judgment of April 8, 1926, as reported in 129 Okla. 121, 263 P. 649, supra, no supersedeas bond was filed, and while said appeal was pending the land was sold under order of court, which sale was confirmed by the court. Said defendants having filed objection to said confirmation, reiterating substantially the same grounds presented in their motion to quash, their motion to vacate said judgment and the amendment thereto, which amendment to the motion to vacate set forth that defendant had a good and valid defense and desired to file her answer and obtain a hearing on the merits also that her attorney would have filed said answer on her behalf, had he not been laboring under a misapprehension as to when the court would be in session. No appeal was taken from the order of confirmation. The notice of appeal which was filed in said cause on May 14, 1928, is from the judgment entered on May 5, 1928, overruling of the motion to vacate said judgment of April 8, 1925, and the amendment filed thereto setting up an additional ground and a request for permission by the defendant Rachel Oliver to file answer and defend on the merits. It is from the overruling of this motion that defendant has appealed.
There was no error in permitting the amendment to be made in reference to the service by publication. The service was not void, but was subject to amendment. City Nat. Bank v. Sparks,50 Okla. 648, 151 P. 225; Chaplin v. First Bank of Hitchcock,72 Okla. 293, 181 P. 297; Shanholtzer v. Thompson,24 Okla. 298, 103 P. 585; Sweringen v. Howser, 37 Kan. 126, 14 P. 436; Dorian v. Dorian, 101 Okla. 9. 222 P. 676.
The motion to vacate said judgment and amendment thereto constituted a general appearance. We consider that there was no error in overruling the motion to vacate. Motion to confirm the sale was made on February 3, 1927; no notice of appeal was filed thereafter unless it be notice of appeal, supra, filed on May 14, 1928, which makes no reference to said order overruling the objections to the confirmation to said sale, but refers solely to the judgment in overruling the vacating of said motion of April 8, 1926, which was made on May 5, 1928.
The defendant in error Lucille Kelly has filed in this court a confession of error. Ordinarily, upon appeal, when a defendant in error confesses error and cites authority in support thereof and a review of the record reasonably supports such a confession, the judgment of the trial court will be reversed and the cause remanded. See Warrior v. Savery,145 Okla. 92, 291 P. 966. However, in this case, objection has been made by the purchaser of the land and counsel for said defendant in error to the granting of said confession in error. In this case, the court has considered the entire record and would not be justified in reversing the judgment of the trial court on this record. The confession of error is denied and the judgment of the trial court is affirmed. We consider it unnecessary to discuss the intervener's petition concerning an attorney's lien for services.
Judgment affirmed.
LESTER, C. J., CLARK, V. C. J., and RILEY, HEFNER, and CROMWELL. JJ., concur. KORNEGAY, J., dissents. ANDREWS, J., absent. SWINDALL, J., disqualified and not participating.