Ginn v. Knight

• Decision Date: 30 September 1924
• Docket Number: Case Number: 13240
• Citation: 106 Okla. 4,232 P. 936,1924 OK 806
• Parties: GINN et al. v. KNIGHT.
• Court: Oklahoma Supreme Court

1924 OK 806

232 P. 936

106 Okla. 4

GINN et al. v. KNIGHT.

Case Number: 13240

Supreme Court of Oklahoma

Decided: September 30, 1924

Syllabus

¶0 1. Pleading -- Motions--Determination of Nature--Orders.

The nature of a pleading or motion filed in a cause is determined by the subject-matter thereof, and by the relief the court is authorized to grant under it, and not by the title given it by the pleader, and where it appears from the subject-matter of the instrument filed that the only relief sought or authorized by it is an order, such instrument will be treated as a motion and the decision rendered thereon as an order, and not as a judgment.

2. Appeal and Error--Time for Case-Made--Effect of Unauthorized Motion for New Trial.

The filing and determination of a motion for new trial of a contested question of fact arising upon a motion is not necessary to authorize this court to review the order made upon such hearing, and filing of a motion for a new trial is unauthorized in such a proceeding and does not extend the time in which to make and serve a case-made.

3. Same--Time for Appeal From Final Order.

A proceeding in this court to reverse a final order of the district court must be commenced within six months of the rendition of the final order complained of, and the time runs from the rendition of such order.

C. Dale Wolfe, for plaintiffs in error.

John W. Willmott and R. J. Roberts, for defendants in error.

DICKSON, C.

¶1 The plaintiffs in error were plaintiffs below, and defendant in error, defendant below, and will be referred to in this opinion as plaintiffs and defendant. On the 10th day of November, 1913, the plaintiffs, having theretofore obtained judgment against the defendant, caused an execution to issue thereon and levied upon certain lands in Seminole county, as the property of the defendant. It appears that said lands were appraised, advertised, and sold under said execution, and purchased by the plaintiffs, that said sale was confirmed by the said court and a sheriff's deed executed and delivered to the plaintiffs, and the judgment credited with the amount of the plaintiffs' bid.

¶2 Afterward, and on the 5th day of June, 1918, the plaintiffs filed in said cause, in which said execution was issued, what they denominate a "motion or petition", the first paragraph of which is as follows:

"Come now the plaintiffs and respectfully show to the court that on the 10th day of November, 1913, there was issued in this cause an execution upon a judgment indebtedness in favor of plaintiffs in the sum of $ 447.97, and interest and costs due thereon, against the defendant, W. L. Knight, as shown by the judgment docket herein, which execution was levied by the sheriff of Seminole county, Okla., thereafter upon the following described land situate in Seminole county, Okla., to wit:"

¶3 Then follows a description of the land sold, and an averment that said land stood upon the record in the name of said defendant, and that the plaintiffs bid the sum of $ 268 therefor, upon the faith and belief that said lands belonged to the defendant, that after the execution and delivery of said sheriff's deed, at the suit of the real owner of said lands, the deed under which defendant held the apparent title was canceled, as well as the said sheriff's deed to the plaintiffs, and that it was adjudged and decreed that the defendant never had any title or interest in or to said lands, that by reason of the cancellation of said deeds, said credit upon said judgment was obtained without consideration, that the defendant parted with nothing by reason of the execution, sale, and credit, and the plaintiffs gained nothing. The relief prayed was that said credit be canceled and held for naught. It appears that there was a hearing had upon said motion of petition, and evidence offered by both sides, on the 3rd day of August, 1921, and at the conclusion of said hearing the court announced its decision as follows: "Motion of the plaintiffs is denied." The plaintiffs excepted and gave notice of their intention to appeal to this court. On the 4th day of August, 1921, the plaintiffs filed in said cause a motion for a new trial. This motion was overruled on the 17th day of October, 1921, and the plaintiffs excepted and again gave notice of their intention to appeal to this court, and were granted 60 days in which to make and serve a case-made, subsequently there was a further extension of time in which to make and serve a case-made, and within the time fixed by said extension, and on...