Funk v. Payne
| Decision Date | 19 April 1938 |
| Docket Number | Case Number: 28085 |
| Citation | 1938 OK 270,183 Okla. 332,82 P.2d 976 |
| Parties | FUNK et al. v. PAYNE |
| Court | Oklahoma Supreme Court |
¶0 EXECUTION--Confirmation of Sale of Realty--Court not Required to Look Into Regularity of Judgment.
On motion to confirm sale of real estate made under execution, the court should confine itself to the regularity of the proceedings on the sale, and is not required to go behind the execution and look into the regularity of the judgment.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by E. F. Payne against R. B. Funk et al. Proceeding on the confirmation of sale of real estate on a foreclosure of a mortgage. From an order confirming the sale, defendants appeal. Affirmed.
Sid White, for plaintiffs in error.
Tomerlin, Chandler, Shelton & Fowler and John W. Swinford, for defendant in error.
¶1 This is an appeal from an order confirming sheriff's sale after foreclosure of a real estate mortgage. The statement of the proceedings is incomplete and the record of the proceedings is not abstracted as required by rule 15 of this court. By reference to the record itself it is found that the sale was confirmed over the objection of the plaintiffs in error, who were defendants below, on February 26, 1937.
¶2 The plaintiffs in error present two assignments of error. The first is that the court erred in not granting the defendants a jury trial. This court has many times' held that the only question presented on the objection to the confirmation of the sale is the regularity of the proceedings subsequent to judgment, and that the questions of irregularity of the trial up to and including the judgment are all merged in the judgment; that in order to appeal from the errors involved therein it is necessary to perfect the appeal from the original judgment. Wyant v. Davison & Case Lumber Co., 173 Okla. 467, 49 P.2d 151; Kline v. Evans, 103 Okla. 44, 229 P. 427; Burton v. Mee, 152 Okla. 220, 4 P.2d 33. In Burton v. Mee, supra, the court said:
"On motion to confirm sale of real estate made under execution, the court should confine itself to the regularity of the proceedings on the sale, and is not required to go behind the execution and look into the regularity of the judgment."
¶3 The second assignment of error is that the court improperly refused to pass upon the reasonable rental value of the property for the time the defendant in error was wrongfully in possession of same. This question likewise...
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