Sooner Federal Savings & Loan Ass'n v. Mobley

SUPPLEMENTAL OPINION ON REHEARING

LAVENDER, Justice:

On petition for rehearing, Gary J. Dean contends that his status is different from the other lien claimants because on November 4, 1981, he filed an Application for Judgment on Attorney Fee in the divorce proceedings and on the 20th day of October, 1977, the District Court of Rogers County, Oklahoma, entered a judgment in the divorce proceedings in favor of Dean and against Paul Mobley and decreeing that the judgment shall be a lien upon the property of the plaintiff.1 Thus, Dean urges, he is brought within Haven v. Trammell, 79 Okl. 309, 193 P. 631 (1920) and Campanello v. Mason, Okl., 571 P.2d 449 (1977), and has a valid lien upon the homestead.

A purported copy of the judgment in favor of Dean in the divorce proceedings entered on October 20, 1977, is attached to Dean’s brief in support of his petition for rehearing. Otherwise, the only reference to this judgment in the record before us is the following allegation in Dean’s Answer and Cross-Petition filed below in the case at bar:

“1. That cross-petitioner has and claims a lien against the property described in the petition herein, in the amount of ONE THOUSAND THREE HUNDRED NINETY SIX & 87/100 DOLLARS ($1,396.87) plus interest thereon alleged in the amount of $500.00, all as per Judgment against Paul Adair Mobley, D.O., made and entered on the 20th day of October, 1977, as more fully appears in a certain Journal of Judgment of said date made and entered in cause numbered D-76-82 in the District Court of Rogers County, Oklahoma, which is incorporated herein by reference.
“2. That said judgment provides that the same is a lien upon the property of defendant MOBLEY, and said judgment inter alia orders said judgment foreclosed as against the property of said defendant.
“3. That the priority of said lien dates back to March 30, 1976, at which time said cause was originally filed, and the claim of said attorneys lien was endorsed upon the petition filed in said cause.
“4. That the lien and claim of this cross-petitioner is superior in priority to all of the claims and liens of all other parties and additional parties defendant herein, save and except the plaintiff, and cross-petitioner is entitled to, and prays for foreclosure of said lien in the manner and form prescribed by law, and determination of priorities.”

Dean requests that this Court grant “leave to supplement the record by addition of said judgment in the interest of justice, the omission thereof being error and oversight, and no party being prejudiced thereby since recitation of said judgment is of record in *1004this appeal.” He further requests that rehearing be granted and the judgment entered herein be modified to show that he has a good and valid lien upon the Mobley homestead property.

The matter thus presented does not involve the inadvertent omission of a necessary part of the record. Therefore, there was no omission of the judgment of October 20, 1977, from the record on appeal which might be corrected under 12 O.S.1981, § 990, and Rules of Appellate Procedure in Civil Cases — Rules on Perfecting a Civil Appeal, Rule 1.20(a), (b), (g). Never having been a part of the record in the case, the judgment of October 20, 1977, could not have been omitted from the record.

We next consider what relief may be afforded under the doctrine of judicial notice. May the Supreme Court take judicial notice on petition for rehearing of a judgment entered by a court below in a cause which was separate from the cause on appeal where the only reference to the cause in the record on appeal is an allegation that the judgment was entered in the collateral cause, and a purported incorporation of the terms thereof into the pleading by reference?

In Green v. Mac’s Plating Works, Okl., 563 P.2d 148 (1977), it was held that the Industrial Court could take judicial notice of a prior hearing had before it involving the same claimant who was presenting a claim before that court, including the transcript and record in the prior case, to which reference was made in the pending cause.

In Austin v. State Board of Education, Okl., 497 P.2d 218 (1972), it was held that courts generally (in this case, the Supreme Court) do not take judicial notice of proceedings pending in another cause in a different court (in this case, a cause pending in the United States District Court for the Western District of Oklahoma).

In Chisholm v. Stephenson, Okl., 363 P.2d 229 (1961) it was held that the Supreme Court will take judicial notice of its judgments and decrees, of its records and proceedings in actions formerly pending before it. “It will take particular notice of proceedings formerly pending before it, to which reference is made in the pending litigation, wherein the same persons or their privies were parties and a decision vital to the pending case has been entered.” Chisholm v. Stephenson, supra, was followed and cited with approval in Fox-Smythe Transportation Company v. McCartney, Okl., 510 P.2d 686 (1973).

From the above eases, the following conclusions are drawn:

The District Court of Rogers County could properly have taken judicial notice of the prior proceedings before it wherein Gary J. Dean procured a judgment against Paul Mobley, which judgment was expressly made a lien upon the homestead real property of Mobley, particularly since Dean made particular reference to that judgment in the pleadings he filed in the pending case. However, the Supreme Court does not take judicial notice of Dean’s judgment where that judgment is not a part of the record before it on appeal.

IT IS THEREFORE ORDERED that Gary Dean’s petition for rehearing be granted; that this cause be remanded for the purpose of determining whether a judgment was entered by the District Court of Rogers County in cause numbered D-76-82 rendering judgment in favor of Gary Dean against Paul Mobley, which judgment was made a lien upon the homestead real property of Mobley, whether such judgment was duly entered on the judgment docket of the county in which the realty is located (Knight v. Armstrong, Okl., 303 P.2d 421 (1956)), and, if so, that judgment be entered in favor of Gary Dean against Paul Mobley in the pending cause, and determining that said judgment is a good, valid, and subsisting lien upon said homestead property;2 otherwise, if not so determined, judgment should be entered in favor of Paul Mobley *1005and Susan Mobley determining that Dean’s judgment is not a lien upon the Mobley homestead realty.

IT IS FURTHER ORDERED that the opinion of this Court rendered in this cause on the 20th day of October, 1981, is hereby modified only as to Gary Dean by adding the above and foregoing opinion on rehearing thereto.

All of the Justices concur.

. This argument was made in Dean’s original brief, filed in this matter.

. See 12 O.S.Supp.1980, § 2203 B; 29 Am. Jur.2d, Evidence, §§ 58, 59; 5 Am.Jur.2d, Appeal and Error, § 742.