Hall v. Holloway

• Court: Oklahoma Supreme Court
• Writing for the Court: COLLIER, C.
• Citation: Hall v. Holloway, 62 Okla. 192, 162 P. 186, 1916 OK 1023 (Okla. 1916)
• Decision Date: 12 December 1916
• Docket Number: Case Number: 8092
• Parties: HALL et al. v. HOLLOWAY et al.

1916 OK 1023

162 P. 186

62 Okla. 192

HALL et al. v. HOLLOWAY et al.

Case Number: 8092

Supreme Court of Oklahoma

Decided: December 12, 1916

Syllabus

¶0 1. Appeal and Error--Parties--Ground for Dismissal.

Where a foreclosure sale is made and confirmed, and subsequently such order of confirmation is set aside, the purchaser at such sale may appeal from the making of such order to this court, as such order affects the substantial rights of the purchaser, upon a summary application in the action after judgment, and is a final order; and a motion to dismiss said appeal will not lie upon the ground that such order is not an appealable order.

2. Mortgages--Foreclosure Sale--Confirmation--Vacation--Motion.

Where, at a term subsequent to the term at which an order of confirmation is made, it is moved to set aside such order, under section 5267, Rev. Laws 1910, such motion must conform strictly to the grounds stated in such statute to entitle movant to the relief sought, and such motion must state facts--not conclusions of law--showing movant entitled to the relief prayed for.

3. Judicial Sales--Motion to Set Aside.

In a motion to set aside a judicial sale, the purchaser at such sale is a necessary party.

4. Same.

Motion to set aside the order confirming the sale in the instant case carefully examined, and held not to state facts sufficient to confer jurisdiction upon the court to vacate such sale.

Error from District Court, Carter County; W. F. Freeman, Judge.

Action by Mary P. Hall and others against Ola Holloway and others for the foreclosure of a mortgage. The property was sold under foreclosure and bought in by Edward R. Holmes and others, and, thereafter the order of confirmation of sale being set aside, plaintiffs bring error. Reversed and remanded, with instructions.

J. B. Moore, H. C. Potterf, and Earl Q. Gray, for plaintiffs in error Mary P. Hall and Henry T. Smith.

H. C. Potterf and Earl Q. Gray, for plaintiffs in error Edward R. Holmes, Ralph W. Holmes, and Will H. Smith.

Scothorn, Rittenhouse & McRill, for defendants in error.

COLLIER, C.

¶1 Mary P. Hall and Henry T. Smith, hereinafter called "plaintiffs," began this action upon a note and mortgage, against Ola Holloway, the Jennings Company, and D. E. Allen, hereinafter called "defendants," and procured judgment against said Holloway and Allen in the sum of $ 1,494.89, and foreclosure of said mortgage, and, under the judgment rendered, the land described in said mortgage was sold, and at sale Edward R. Holmes and Ralph W. Holmes, hereinafter designated "purchasers," became the purchasers thereof and said sale was duly confirmed by the court. Thereupon, though same had not been fixed, the said Allen filed a supersedeas bond, but did not perfect an appeal from said order of confirmation.

¶2 The court adjourned for the term on December 31, 1915, after the confirmation of said sale, and at a subsequent term of said court defendants filed a motion to vacate said order confirming said sale, which motion, omitting the caption, is as follows:

"Come now the defendants and move the court to set aside and hold for naught the purported order confirming sale rendered in this court on the 4th day of November, 1915, for the following reasons, to wit:

"(1) Because of the mistake and omissions of the clerk of this court in describing the land to be sold in the order of sale, in that the same was improperly described as 'the NW1/4 of section nine (9), township two (2) south, range three (3) west,' same not being sufficient description to properly place before a person not learned in the technical subdivisions of land to locate and find the property attempted to be described.

"(2) Because the published notice of sheriff's sale erroneously described the property to be sold as 'the N.W. 1/4 of section nine (9), township two (2) south, range three (3) west,' which said notice does not describe the land so that same may be known and located without applying other means of identification by one unlearned in the technical descriptions of land.

"(3) Because there is a misjoinder of parties plaintiff in this action, insomuch that it cannot be ascertained the interest of each in recovery under the judgment; it not being shown that the parties are partners or what amount each does own in the amount due upon the notes in controversy.

"(4) Because of newly discovered evidence as to the value of said lands in question, the former evidence not having been taken by any stenographer, but the court granting the said order of confirmation upon said evidence, in which the lands were shown to be of comparatively little value; whereas in truth and in fact same was now shown to be of great value greatly in excess of the obligation of these defendants to the plaintiffs.

"(5) Because of fraud practiced upon the court in obtaining said order of confirmation, in that the attorneys for plaintiffs repeatedly represented to the court that all they wanted was their money and the judgment to be paid; whereas, since the making of said order the defendant Allen has repeatedly offered to pay the full amount of said judgment and costs and plaintiffs' attorneys, knowing the present values of said lands have refused to accept the payments of the judgments as they so often expressed to this court they stood willing and anxious to do, but are now demanding the full payment of the pound of flesh as was done by one of old.

"(6) Because of irregularity in obtaining said order of confirmation, in this: That said order was received and made upon the representations of the attorneys for the plaintiff in that they stood ready to accept the money upon the judgment at any time, and that in face of the fact that the defendant was pleading for time until this January term of the court to raise the money, and the court in granting the order said that it would make no difference whether the order of confirmation was made at the time it was made or wait until the January term of court, when all that the plaintiffs were asking was their money and that it could be paid as well after the order of confirmation as before if the defendant could raise it; whereas, in truth and in fact the attorneys for the plaintiffs have colluded with others in holding said lands, have even taken an interest in the said lands and judgment and are now trying to appropriate to themselves profit and revenue from withholding of the acceptance of the money due upon the judgment.

"(7) Because the attorneys for the plaintiffs have clouded the title and otherwise undertaken to annoy the defendant Allen by demanding the excess over the bid for the lands from the defendant Allen and by recording with the court clerk the order of confirmation made in this case and otherwise causing the defendants trouble in an equitable settlement of this judgment.

"(8) Because in equity and good conscience the plaintiffs are not entitled to any more than the amount of their judgment, together with interest and costs, all of which the defendants stand ready to tender into court and pay.

"Wherefore defendants ask that said order of confirmation be vacated, and that upon hearing this honorable court grant a resale of the property, in order that full justice may be done the defendants, and that plaintiffs are not given more than they are entitled to in equity."

¶3 Plaintiffs filed their special appearance and motion to dismiss defendants' motion to vacate the court's order of confirmation, which was overruled; and thereafter plaintiffs filed, in succession, their motion to strike the motion of defendants to set aside said confirmation, and demurrer to said motion, which said motion to strike and said demurrer, omitting the captions thereof, are as follows:

"Now come Mary P. Hall and Henry T. Smith, plaintiffs in the above-styled cause and respectfully show the court:

"First. That no notice of the filing of the motion to vacate the order confirming sale or of the hearing thereon has been served upon Edward R. Holmes or Ralph W. Holmes, the purchasers of the land involved at the foreclosure sale.

"Second. That the motion to vacate the order confirming sale is not verified.

"Third. That said motion does not state or purport to state any sufficient grounds for the setting aside of the order, does not set forth any mistake, neglect, or omission of the clerk or irregularity in obtaining the order, does not set forth any fraud practiced by the successful party in obtaining the order, nor any other ground to give this court jurisdiction to set aside the order.

"Fourth. That the motion purports to be filed on behalf of both defendants Ola Holloway and D. E. Allen; whereas, the attorney filing the same is not authorized to file any motion or enter any appearance on behalf of the defendant Ola Holloway, or represent her in any capacity.

"Fifth. That said motion was not filed during the term in which the order was entered and was not filed within time, but was filed at a later term and does not confer jurisdiction upon this court to vacate or set aside the order sought to be set aside.

"Wherefore plaintiffs pray that said motion be stricken from the record and from the files, and that the same be dismissed."

"Now comes Mary P. Hall and Henry T. Smith, plaintiffs in the above-styled cause, and, first, demur to the motion to vacate the order confirming sale filed in this cause on the 3d day of January, 1916, and for grounds of objection state: (a) That said motion does not state facts sufficient to constitute a ground for vacating or setting aside the order. (b) That there is a misjoinder or nonjoinder, in that the purchasers, Edward R. Holmes and Ralph W. Holmes, have not been joined or served with notice.

"Second. Plaintiffs further demur to the first ground set forth in said motion for the reason that it does not state facts sufficient to constitute a ground for setting aside or vacating the order, and for the further reason that the objection was raised or should

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