This is an appeal from an order of the district court of Tulsa county, denying two certain motions, as amended, to vacate a judgment of that court. The plaintiffs in error were the defendants in the trial court and the defendants in error were the plaintiffs in that court. Hereinafter the parties will be referred to as plaintiffs and defendants.
The record discloses that Jacob Young died intestate, without issue, the owner of certain real estate and leaving surviving *Page 266 him as his sole and only heirs at law, his mother, Polly Young, and his wife, Carrie Young. Thereafter Carrie Young procured a quitclaim deed to the land from Polly Young. Thereafter Carrie Young conveyed to Dora M. Lausen 50 acres of the land. Thereafter Polly Young died intestate leaving surviving her the plaintiffs, who were her sole and only heirs at law. Two of the plaintiffs are the children of the said Polly Young, and the other plaintiffs are the children of Polly Johnson, who was a daughter of the said Polly Young.
On August 10, 1928, the plaintiffs commenced their action in the district court of Tulsa county. Four of them were minors and joined in the action by their guardian and next friend. In their petition the plaintiffs alleged that the deed from Polly Young to Carrie Young was invalid for the reason that there was no consideration therefor, and for the reason that Polly Young, at the time of the execution of the deed, was of unsound mind and incapable of making a deed or entering into a contract. The prayer was for possession of an undivided one-half interest in the land. There was a second cause of action with a prayer to quiet the title, and a third cause of action with a prayer for a partition of the land.
Dora M. Lausen was made a defendant in the action. No service was had upon her. She made a voluntary appearance therein. On the 24th day of October, 1929, a judgment was rendered against the plaintiffs and in favor of Dora M. Lausen on her cross-petition after a finding by the court that she paid a valuable consideration for and was an innocent purchaser of the 50 acres of land claimed by her by virtue of her deed from Carrie Young. From that judgment no appeal was taken. In the journal entry the trial court stated that the judgment should not in any way prejudice the rights or the interests of the plaintiffs in and to the judgment obtained by them against Carrie Young in the same action on September 29, 1928, in so far as the same pertained to a one-half interest in and to the remainder of the land owned by Jacob Young. That is the judgment the validity of which is in issue in this case.
At the time of the filing of the petition of the plantiffs, Carrie Young was not within the state of Oklahoma, and personal service could not have been made upon her within the state of Oklahoma. On the date the petition was filed by the plaintiffs, an affidavit for service by publication was filed. On that date a notice by publication was issued by the court clerk. Therein September 28, 1928, was fixed as the answer day. On September 3, 1928, proof of publication of the notice by publication was filed in the office of the court clerk. It showed that the notice by publication was published on August 16, 23, and 30, 1928. On the 29th day of September, 1928, no answer had been filed and no appearance had been made in the action by or for Carrie Young. On that date the cause was submitted to the court for judgment. The court found that notice by publication had been regularly given and "that within six days after the first publication, a copy of said notice and copy of said petition herein were duly and properly mailed to the defendant Carrie Young on August 18, 1928, and as required by law." The court rendered a judgment, quieting the title to a one-half interest in the property in the plaintiffs, giving them the possession thereof, decreeing a partition of the real estate and appointing commissioners to make a partition thereof. Under date of August 27, 1928, the defendant Carrie Young executed a quitclaim deed to the land in question to one Rosa Foreman. A term of the district court of Tulsa county commences on the first Monday in November. Under date of January 18, 1929, one Rosa E. Foreman (admitted to be the same person as Rosa Foreman) filed a motion to set aside the order of sale and judgment rendered on the 29th day of September, 1928, and exceptions to the confirmation of the sale of the real estate in the partition proceedings. Therein she alleged that she had purchased the land in question from Carrie Young under date of August 27, 1928. Therein she offered to show that, at the time of the conveyance by Polly Young to Carrie Young, Polly Young was of sound mind. Under date of February 2, 1929, Carrie Young filed a similar motion. Under date of February 13, 1929, the plaintiffs filed a motion to strike the motions of Rosa E. Foreman and Carrie Young, and on the 16th day of February, 1929, that motion was sustained. Under date of February 20, 1929, Carrie Young and Rosa E. Foreman each filed an amended motion in which the conveyance by Carrie Young to Rosa E. Foreman was alleged and in which Carrie Young claimed to be a resident of Tulsa county. We think that no attention need be paid to the allegation as to residence, for the reason that the attorney for defendant Carrie Young, in asking for time in which to make a supersedeas bond, stated to the trial court that the defendant *Page 267 Carrie Young "lives in California." Under date of April 5, 1929, Carrie Young and the said Rosa E. Foreman joined in a supplemental motion. Under date of June 25, 1929, the plaintiffs filed a motion to strike from the files and to refuse the motion of the defendant Carrie Young to vacate the judgment and order and exceptions to the confirmation of the sale, and, on the same date, they filed a similar motion to strike as to the objections of the said Rosa E. Foreman. On the 29th day of July, 1929, the trial court overruled the amended motions of the defendant Carrie Young and the said Rosa E. Foreman to vacate the judgment and granted the defendant Carrie Young and the said Rosa E. Foreman 30 days to make and serve case-made and 10 days for suggestion of amendments, the case-made to be settled on five days' notice. From that judgment and order Carrie Young and the said Rosa E. Foreman appealed to this court. Hereinafter they will be referred to as the plaintiffs in error.
The plaintiffs in error contend that "the court was wholly without jurisdiction of the subject-matter of this action to grant the relief asked by the defendants in error." That contention is based upon the theory that there was a misjoinder of legal and equitable causes of action which deprived the court of jurisdiction of the subject-matter. There was no misjoinder of causes of action. Section 266, C. O. S. 1921. Under our Code of Procedure there is but one form of action. Section 178, C. O. S. 1921. Notwithstanding the rule to the contrary in some jurisdictions, both a legal and an equitable action pertaining to the same subject-matter may be joined in one action in this jurisdiction. Herein it is not necessary that possession of real estate be acquired by a suit in ejectment prior to the filing of an action to quiet the title to the real estate or to partition the real estate. Section 406, C. O. S. 1921, provides that an action to quiet title to real estate may be joined with an action to recover possession of the real estate by any person not in possession. Tidal Oil Co. v. Flanagan, 87 Okla. 231, 209 P. 729, and American Investment Co. v. Usrey, 106 Okla. 202, 233 P. 1078. We think that under our Code the same rule is applicable where there is an additional prayer for partition of the real estate. See Beatty v. Beatty, 114 Okla. 5, 242 P. 766, and Chouteau v. Chouteau, 49 Okla. 105, 152 P. 373. The trial court had jurisdiction of the subject-matter of the action and jurisdiction to render the particular judgment rendered. The judgment roll shows that the trial court had jurisdiction over the person of the plaintiff in error Carrie Young. The judgment was not void. The motions filed by the plaintiffs in error were not based upon jurisdictional grounds alone, but upon nonjurisdictional grounds as well. Where a party against whom a judgment is rendered files a motion to vacate the same upon the ground that the court had no jurisdiction over him, and said motion is based upon nonjurisdictional as well as jurisdictional grounds, appellant thereby enters a general appearance, as though said appearance had been made at the trial. Givens v. Anderson, 119 Okla. 212, 249 P. 339; Burnett v. Clayton, 123 Okla. 156, 252 P. 397; Bristow v. Scott,124 Okla. 89, 254 P. 16, and Nolan v. Schaetzel, 145 Okla. 231,292 P. 353. By the filing of those motions the plaintiffs in error entered general appearances in the cause. If there was any question as to the legality of the service upon the plaintiff in error Carrie Young, that question was waived by the entry of the general appearances in the action.
The term of the court at which the judgment was rendered expired prior to the filing of any of the motions by the plaintiffs in error. Notwithstanding that fact, neither of the plaintiffs in error attempted to conform to the provisions of section 256, C. O. S. 1921. The motions of the plaintiffs in error in no wise conform to those provisions. No answer to the petition of the plaintiffs was submitted for filing. There was no showing by affidavit or other evidence that during the pendency of the action either of the plaintiffs in error had no notice thereof in time to appear in court to make a defense. We cannot say that the trial court abused its discretion in refusing to vacate the judgment after the expiration of the term in which it was rendered on the facts shown by the motion of either of the plaintiffs in error.
The failure to file an affidavit of mailing notice prior to the rendition of judgment does not affect the validity of the judgment. There is no provision of law requiring the filing of such an affidavit. Compliance with the provisions of section 252, C. O. S. 1921, may be shown either by the filing of an affidavit or by proof to the trial court. The journal entry of judgment in question recites compliance with the provisions of that section. That finding became and is a part of the judgment roll. Woodley v. McKee, 101 Okla. 120, 223 P. 346. *Page 268
The provisions of section 817, C. O. S. 1921, as to attacks upon void judgments, have no application to the facts in this case, for herein the judgment was not void.
We find no error in the judgment of the trial court, and that judgment is in all things affirmed.
RILEY, HEFNER, CULLISON, SWINDALL, and McNEILL, JJ., concur. LESTER, C. J., absent. CLARK, V. C. J., and KORNEGAY, J., dissent.