City of Lawton v. Ayres

• Decision Date: 24 March 1914
• Docket Number: Case Number: 3366
• Citation: 40 Okla. 524,1914 OK 139,139 P. 963
• Parties: CITY OF LAWTON v. AYRES.
• Court: Oklahoma Supreme Court

1914 OK 139

139 P. 963

40 Okla. 524

CITY OF LAWTON v. AYRES.

Case Number: 3366

Supreme Court of Oklahoma

Decided: March 24, 1914

Syllabus

¶0 1. APPEAL AND ERROR--Recognition of Judgment--Waiver. Any act on the part of a defendant by which he impliedly recognizes the validity of a judgment against him operates as a waiver to appeal therefrom or to bring error to reverse it.

2. SAME. A funding proceeding by a municipal corporation for the purpose of funding its warrant and judgment indebtedness, pursuant to the laws of this state, wherein a judgment against it is included, which culminates in an issue of bonds for funding such indebtedness, constitutes a recognition of the validity of such judgment and operates as a waiver to appeal therefrom or to bring error to reverse it.

Error from District Court, Comanche County; J. T. Johnson, Judge.

Action by Charles H. Ayres against the City of Lawton. Judgment for plaintiff, and defendant brings error. Dismissed.

Charles C. Black and McElhoes, Ferris & Rhinefort, for plaintiff in error

Stevens & Myers, for defendant in error

KANE, J.

¶1 This was an action for damages for personal injuries, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Upon trial to a jury, there was a verdict for the plaintiff, upon which judgment was duly rendered, to reverse which this proceeding in error was commenced.

¶2 A preliminary question decisive of the cause is presented by counsel for defendant in error by a motion to dismiss the appeal. It seems that subsequent to the rendition of the judgment against it, the City of Lawton commenced a proceeding for the purpose of funding its warrant and judgment indebtedness, wherein it included the judgment herein as one of the items of valid indebtedness against it; that said funding proceeding culminated in a bond issue which was approved by the Attorney General, as required by law, in which said judgment was included as one of the items funded. The contention of the movant is that this proceeding constitutes a recognition on the part of the city of the validity of the judgment rendered against it, and a waiver of its right to appeal therefrom or to bring error to reverse it. We think this position is well taken. The rule is, "that any act on the part of the defendant by which he impliedly recognizes the validity of a judgment against him operates as a waiver to appeal therefrom, or to bring error to reverse it." 2 Cyc. 656. It is difficult to conceive a more solemn recognition by a municipality of the validity of a judgment rendered against it than is involved in a proceeding to fund the same, under our st...