Citizens State Bank of Vici v. Boggess

• Decision Date: 23 December 1930
• Docket Number: Case Number: 19768
• Citation: 147 Okla. 37,294 P. 185,1930 OK 588
• Parties: CITIZENS STATE BANK OF VICI v. BOGGESS et al.
• Court: Oklahoma Supreme Court

1930 OK 588

294 P. 185

147 Okla. 37

CITIZENS STATE BANK OF VICI v. BOGGESS et al.

Case Number: 19768

Supreme Court of Oklahoma

Decided: December 23, 1930

Syllabus

¶0 1. Execution -- Right to Set Aside Sale Though not Party to Suit.

"Where land has been sold on execution any person claiming to be the owner thereof and interested in defeating the sale may, although not a party to the suit, move the court to set aside such sale." Sparks v. City Nat. Bank of Lawton, 21 Okla. 827, 97 P. 575.

2. Appeal and Error -- Record -- Presumption That Judgment Supported by Evidence.

As the presumption prevails that when a court of competent jurisdiction has rendered a judgment in relation to any subject-matter within its jurisdiction, such court had before it sufficient evidence to authorize it to award such judgment, before this court will reverse a judgment for want of proof the party complaining must bring here a record showing affirmatively that no sufficient proof was made.

Commissioners' Opinion Division No. 1.

Error from District Court, Ellis County; C. C. Smith, Judge.

Action by Citizens State Bank of Vici, Okla., against Lyman T. Boggess, Emma Boggess, O. D. Bell, and the Commissioners of the Land Office of the State of Oklahoma and in which Tom W. Boggess moved therein to set aside attachment and sale of lands. Motions of Tom W. Boggess sustained, and plaintiff appealed. Affirmed.

Leedy & Leedy, for plaintiff in error.

Tom L. Ruble and E. S. Collier, for defendants in error.

REID, C.

¶1 The Citizens State Bank of Vici, Okla., began this suit on June 3, 1927, against Lyman T. Boggess on a note given by him to the bank. With the usual allegations in the petition, it was further alleged that Boggess was a nonresident, and was the equitable owner under certificate of purchase of certain school lands in Ellis county, Okla.; and Emma Boggess, his wife, was made a party defendant upon the allegation that she claimed a homestead interest in the property, which claim plaintiff denied. The Board of Land Commissioners of Oklahoma was also made a party defendant as having the superior title in the land, and O. D. Bell was named defendant because of his possession of the land as tenant, but they are not involved here. Plaintiff prayed for judgment on its note, and for attachment against the land.

¶2 An attachment issued on June 4th, and was levied on the land described in the petition, but on October 3, 1927, it was set aside on consent of the plaintiff for irregularities in its issuance and levy, and an alias attachment was issued, and on October 4th was levied on the same land.

¶3 Lyman T. Boggess and his wife were first served by publication notice, and later, he was personally served, but neither answered, and on October 10, 1927, the plaintiff took judgment against Boggess on the note, and against him and all other defendants foreclosing its attachment lien on whatever interest Boggess had in the land and directing an order of sale to issue. An order of sale issued, was levied on the lands, and the sale was advertised for December 20, 1927; but on December 19, 1927, one Tom W. Boggess filed in the suit a motion to set aside the attachment of October 4th, claiming various irregularities in the attachment proceedings, and, further, that, on September 8, 1927, he had, for a valuable consideration, bought the land from Lyman T. Boggess and his wife, and received a deed thereto from them. He attached to his verified motion a copy of the purported deed, together with copies of certificates of purchase issued by the Commissioners of the Land Office of the state of Oklahoma to him on the lands in controversy. Later, in the course of the proceedings, Tom W. Boggess filed a motion to set aside the sale for irregularities, and also on the ground that he was the owner of the property when the attachment was levied, and when it was ordered sold by the court, and therefore it could not be taken for a debt of Lyman T. Boggess. The plaintiff filed separate motions, asking the court in one to strike the motion of Tom W. Boggess directed against the attachment proceedings, and also another to strike the motion filed by Tom W. Boggess asking that the sale be set aside; all plaintiff's motions alleging that the proceedings were regular and further that Tom W. Boggess was a stranger to the action and could not declare himself into the suit by filing said motions. In the meantime, the plaintiff also filed a motion to confirm the sale. The various motions were considered together by the court on the 4th day of April, 1928, and the court overruled all motions of the plaintiff, and sustained the motions of Tom W. Boggess, and the plaintiff brought this appeal.

¶4 It is the contention of the plaintiff that, if Tom W. Boggess was the owner of the land levied upon on October 4, 1927, it was his duty to file his plea of intervention as provided for by section 229, C. O. S....