This district court action is one to recover for personal injuries. The defendant answered setting up a judgment rendered in the superior court of Okmulgee county as res judicata to the present action. Copy of the prior judgment was attached which appears regular on its face. *Page 477
Plaintiff replied in detail, setting out facts which it is claimed renders the judgment void on jurisdictional grounds. Upon trial the defendant objected to the introduction of any evidence upon the ground that plaintiff was barred and estopped by the former judgment. The trial court sustained the objection and dismissed the suit.
In this appeal plaintiff points out that res judicata is defensive matter, and that such defense cannot be tried out upon a motion to dismiss after the issues are joined and a question of fact is raised by the pleadings. Wade v. Hope et al., 89 Okla. 64, 213 P. 549, and other cases to the same effect are cited. Plaintiff quotes the following as the question here presented:
"Is a trial court, after the issues are formed, authorized to consider the merits of an alleged defense, of res judicata, upon a motion, and thereupon dismiss a plaintiff's case?"
She relies strongly upon St. Louis-S. F. Ry. Co. v. Bayne,170 Okla. 542, 40 P.2d 1104, to the effect that when an issue of fact is made by the pleadings upon a plea of res judicata, the jurisdiction of the court rendering the judgment relied upon may be inquired into by every other court wherein such issue is made.
Defendant distinguishes the present case, in that he asserts the pleadings herein do not raise an issue of fact as to the jurisdiction of the court rendering the prior judgment, but raise only an issue of law to be determined by the trial court. The record before us contains only the pleadings, and from an examination of them we fail to find any issue of fact as relates to the jurisdiction of the court which rendered the judgment. The cited cases therefore do not apply.
The question, then, is whether the prior judgment is void for jurisdictional defects. As to such judgment the pleadings reflect the following: Prior to this suit this plaintiff sued this defendant on this cause of action in the superior court of Okmulgee county, such suit having been filed in the office of the court clerk at Henryetta. At the same time and place and in the same court, a similar suit was filed against this same defendant on behalf of this plaintiff's sister. Both actions sought damages for injuries alleged to have been sustained in this same automobile accident. Both plaintiffs in those cases were represented by the same attorneys. (Others than the present attorneys.)
Plaintiff's sister's case was transferred from the Henryetta division of the superior court to the Okmulgee division of the court, and the parties and attorneys appeared at the latter place for trial. This plaintiff accompanied her sister and was present at all times mentioned on that occasion. There the parties agreed to settlement of both cases. Judgment was then and there rendered in both cases, written releases of same were executed and filed, and checks in full payment were given and cashed. No further action of the superior court in connection with the judgment in favor of this plaintiff has been taken.
It is plaintiff's theory that as the former cause was pending in the Henryetta division of the superior court, the court was without jurisdiction to proceed in the cause in the Okmulgee division and during the term provided by statute for the Okmulgee division. Chapter 131, S. L. 1917, established the superior court of Okmulgee county and specifies the time and places of meeting. Plaintiff cites Ex parte Gardner (Nev.) 39 P. 570; American Fire Insurance Co. v. Pappe, 4 Okla. 110,43 P. 1085; Dunn v. Carrier, 40 Okla. 214, 135 P. 337, and others of similar import. Those cases are authority for the rule that court business must be had by the organized body constituting the court and at the time and place specified by law and in the court wherein the cause is pending.
We observe no violation of those rules and legal principles under the present facts. The legislation creating the superior court of Okmulgee county, supra, does not create two courts. It creates one court and prescribes terms for that court to be held at two points within *Page 478 the territorial limits of that court's jurisdiction. Venue of actions are not confined to any territorial limits except the whole county. Such statutory provisions do not create two courts as in the case of district courts, each of which is a separate court with territorial limits confined to each county of the state, though the political territorial lines of the judicial district may encompass a greater area. Ex parte Gardner, supra; In re Patzwald, 5 Okla. 789, 50 P. 139.
We do not have here a case where judicial proceedings were had outside of the territorial jurisdiction of the court wherein the action was pending and at a time and place other than specified by the law for transacting court matters. Rather, we have a judgment rendered by the superior court of Okmulgee county while sitting as a court at one of the places specified by statute for holding such court and during a statutory term provided for that place. All parties and their respective attorneys were present. The only complaint which might be made would be in reference to the regularity of the proceedings as relates to the transfer of the cause from one division to another division of the same court, and as to whether the facts here reveal or constitute a transfer, and whether the rights of the parties were prejudicially affected by such procedure. Such questions, under the facts here, do not go to the jurisdiction of the court to render the judgment relied upon. See 21 C.J.S., Courts, § 137, for a general discussion of rules, some of which we herein'apply. See particularly cases cited under notes 47 and 48.
The pleadings reflect a great number of allegations which might constitute fraud in the procurement of the judgment and the release of same. That does not go to the jurisdiction and cannot avail plaintiff in this collateral attack upon the judgment. The fraud so referred to goes to alleged conduct of her then attorneys and attorneys for defendant in misrepresenting certain facts and the law as to her rights.
"Nevertheless it must be borne in mind that so far as the parties and their privies are concerned, a domestic judgment cannot be collaterally impeached for fraud not going to the jurisdiction, but relief on this ground must be obtained in some direct proceeding by motion or suit in equity. . . ." Freeman on Judgments, page 1546, para. 731.
The action taken by the trial court is affirmed.
CORN, C.J., and RILEY, DAVISON, and ARNOLD, JJ., concur. GIBSON, V.C.J., and BAYLESS, J., dissent. OSBORN and HURST, JJ., absent.