FOSTER v. CONAWAY

FOSTER v. CONAWAY
1926 OK 907
251 P. 59
122 Okla. 80
Case Number: 17123
Decided: 11/16/1926
Supreme Court of Oklahoma

FOSTER
v.
CONAWAY.

Syllabus

¶0 Judgment--Grounds for Vacation--Amendment of Petition Changing Cause of Action Without Notice. Where plaintiff sues in ejectment and to quiet title to real estate and obtains service upon a defendant, who is alleged to have an interest in the real estate adverse to the interest of the plaintiff, by publication, and plaintiff's petition neither pleads nor prays for a judgment for rents and profits as against the defendant so served, but during the trial court allows plaintiff to amend his petition, in the absence of the defendant so served and without notice of any kind to him, so as to pray for rents and profits, and the defendant so served, thereafter and within the term, files a motion to vacate the judgment on the ground of want of jurisdiction, the same should have been sustained, although the defendant had, in response to the notice by publication, filed a disclaimer.

C. J. Brown, A. Nicodemus, and Walter E. Latimer, for plaintiff in error.
Woodard & Westhafer and G. O. Grant, for defendant in error.