Funk v. First Nat. Bank of Miami

• Decision Date: 31 October 1939
• Docket Number: Case Number: 28996
• Citation: 95 P.2d 589,1939 OK 446,185 Okla. 604
• Parties: FUNK v. FIRST NAT. BANK OF MIAMI, OKLA. et al
• Court: Oklahoma Supreme Court

1939 OK 446

95 P.2d 589

185 Okla. 604

FUNK v. FIRST NAT. BANK OF MIAMI, OKLA. et al

Case Number: 28996

Supreme Court of Oklahoma

Decided: October 31, 1939

Syllabus

¶0 1. APPEAL AND ERROR--Appeal Merely Suspends Judgment Till Appeal Disposed of.

A proceeding in error commenced by the Judgment debtor does not abate or discharge the judgment rendered against him, but merely suspends it until the appeal is disposed of.

2. BANKRUPTCY--Validity of Lien of Judgment Entered Over Four Months Before Debtor's Bankruptcy.

Where a money judgment was rendered and duly entered on the judgment docket of the district court more than four months prior to the adjudication in bankruptcy of the judgment debtor, such adjudication did not impair the lien of said judgment upon lands of the judgment debtor.

3. JUDGMENT--RES JUDICATA--Judgment on Demurrer to Petition Going to Merits of Case.

A judgment rendered on demurrer to a petition, which demurrer goes to the merits of the case, is a final judgment, and constitutes a complete defense as a plea of res adjudicata.

4. QUIETING TITLE--Action One of Equitable Cognizance Triable to Court.

An action to quiet title to land is one of equitable cognizance triable by the court. Sections 350 and 351, O. S. 1931, 12 Okla. St. Ann. §§ 556 and 557.

Appeal from District Court, Craig County; N. B. Johnson, Judge.

Action to quiet title by the First National Bank of Miami; A. P. Funk intervening. Judgment for plaintiff, and intervener appeals. Affirmed.

J. J. Smith, H. P. Walker, and M. W. Hinch, all of Miami, for plaintiff In error.

E. S. Fitzgerald, of Miami, and William T. Rye, of Vinita, for defendant in error.

HURST, J.

¶1 The First National Bank of Miami, as plaintiff, brought this action to quiet title to certain land In Craig county. In this suit plaintiff in error Funk intervened. The issues raised by the intervening petition, plaintiff's answer and cross-petition thereto, and intervener's reply, were tried by the court, who denied intervener's demand for a jury, and judgment was rendered for plaintiff, from which intervener appeals.

¶2 1. Intervener urges five specifications of error, the first three of which may be disposed of together. All go to the validity of a judgment obtained by plaintiff against intervener in 1929, in the district court of Craig county, and a sale of the land involved here, on execution issued thereunder in 1934. Intervener appealed from that judgment, and filed a supersedeas bond in taking such appeal. On May 23, 1933, intervener was adjudicated a bankrupt, and on the same date, for reasons not appearing in the record, this court dismissed the appeal. The land involved here had been sold at execution sale, pending the appeal, by a judgment creditor whose judgment was obtained subsequently to that of plaintiff, and the land purchased at that sale by such junior or subsequent judgment creditor, but was nevertheless thereafter levied upon in this action and bought in by plaintiff under its prior judgment lien. Intervener argues that the supersedeas bond filed by him operated to suspend the lien of plaintiff's judgment, and that the bankruptcy proceeding caused the judgment to become dormant, so that execution could not issue thereunder until the judgment had been revived.

¶3 (a) The trial court correctly denied these contentions. The taking of the appeal, and filing of the supersedeas bond, did not suspend or devitalize the lien of plaintiff's judgment, but merely prevented the enforcement thereof against the property of intervener, pending determination of the appeal. O. S. 1931, sec. 543, 12 Okla. St. Ann. § 968. Starr et al. v. McClain et al. (1915) 50 Okla. 738, 150 P. 666; Scott v. Joines et al. (1918) 71 Okla. 89, 175 P. 504; Howe et al v. Farmers &Merchants Bank et al. (1932) 155 Okla. 284, 8 P.2d 665. When the appeal was dismissed, the function of the supersedeas bond expired, and thereupon the right of plaintiff to satisfy the judgment out of the property of intervener in any manner provided by law became again free and unrestricted.

¶4 (b) Nor did the adjudication of intervener as a bankrupt destroy the lien of such judgment, since the judgment was rendered more than four months prior to the adjudication of bankruptcy. In re Staples (D. C. N. D. Oklahoma 1932) 1 Fed. Supp. 620; Straton v. New, 283 U. S. 318, 51 ...