Brenner v. Tinker

• Decision Date: 24 June 1930
• Docket Number: Case Number: 20985
• Citation: 1930 OK 311,291 P. 553,145 Okla. 110
• Parties: BRENNER v. TINKER.
• Court: Oklahoma Supreme Court

1930 OK 311

291 P. 553

145 Okla. 110

BRENNER v. TINKER.

Case Number: 20985

Supreme Court of Oklahoma

Decided: June 24, 1930

SyllabusC

¶0 1. Appeal and Error--Time for Appeal from Order of Refusal to Appoint Receiver in Aid of Execution.

An appeal from an order denying and dismissing an application for appointment of a receiver in aid of execution is controlled by the provisions of section 525, C. O. S. 1921, and must be filed in this court within 10 days after the date of the order appealed from.

2. Same--Dismissal of Appeal Where not Perfected Within Ten Days.

Where the appeal from an order denying the application for the appointment of a receiver in aid of execution is not perfected in this court within the time allowed by law, this court is without jurisdiction to review the same and the appeal will be dismissed.

Error from District Court, Osage County; Jesse J. Worten, Judge.

Action by H. H. Brenner against Frank Tinker. From an order denying and dismissing plaintiff's application for appointment of receiver, he appeals. Dismissed.

Poe, Lundy & Morgan, H. R. Duncan, and L. M. Poe, Jr., for plaintiff in error.

Leahy, Maxey. MacDonald & Holden, for defendant in error.

PER CURIAM.

¶1 This is an appeal from an order and judgment of the district court of Osage county in an action wherein plaintiff in error sought the appointment of a receiver in aid of execution to enforce payment of a judgment previously rendered in said cause. The purpose being to empound, in the hands of the receiver, moneys due the judgment debtor, an Osage Indian, from the government through the Interior Department from the proceeds of the sale of mineral interests of the Osage Tribe of Indians and to cause said moneys to be applied to plaintiff in error's judgment. The trial court denied and dismissed the application of the plaintiff in error for the appointment of a receiver on November 19, 1929. Plaintiff in error's appeal therefrom was lodged in this court on December 17, 1929, and the cause is now before the court on the motion of the defendant in error to dismiss the appeal for want of jurisdiction in this court to review the judgment appealed from for the reason the appeal was not perfected within the time allowed by law as set forth in section 525, C. O. S. 1921.

¶2 The plaintiff in error has responded to the motion to dismiss the appeal and contends that section 525, supra, applies only to interlocutory orders, and that the proceeding in this cause is in aid of execution under section 742, C. O. S. 1921, and therefore does not come within the terms of said section 525, supra. We find it unnecessary to determine whether or not the order appealed from is an interlocutory order. Section 742, supra, comes within the proceedings in aid of execution and extends the power to the judge to appoint a...