Miller v. Thompson

• Decision Date: 14 September 1926
• Docket Number: 17004.
• Citation: 249 P. 308,119 Okla. 171,1926 OK 704
• Parties: MILLER v. THOMPSON et al.
• Court: Oklahoma Supreme Court

249 P. 308

119 Okla. 171, 1926 OK 704

MILLER v. THOMPSON et al.

No. 17004.

Supreme Court of Oklahoma

September 14, 1926

Syllabus by the Court.

When an action is rightly brought in any county in this state, a summons therein may be issued to, and served in, any other county, for any proper, or necessary defendants, at the plaintiff's request (Comp. St. 1921, §§ 199, 207, 234).

Record examined; held, there being sufficient evidence to sustain the trial court in finding that the land involved was not impressed with the homestead right, the same will not be disturbed.

Additional Syllabus by Editorial Staff.

In suit to foreclose mortgage, personal judgment on note and in rem against property was proper under Comp. St. 1921, § 670.

Commissioners' Opinion, Division No. 2.

Appeal from District Court, Dewey County; Frank Mathews, Special Judge.

Action by J. W. Thompson and another against S. R. Miller and another to foreclose a real estate mortgage, consolidated with an original action by S. R. Miller to enjoin plaintiff and another from executing a deed. From a judgment for plaintiff, S. R. Miller appeals. Affirmed.

O. C Wybrant, of Woodward, for plaintiff in error.

W. P Hickok, of Taloga, for defendant in error.

WILLIAMS C.

The parties will be referred to herein as they appeared in the trial court. J. W. Thompson, as plaintiff, filed a suit in the district court of Dewey county, Okl., against S. R Miller and Mary S. Miller, as defendants, to foreclose a real estate mortgage upon certain real estate in Dewey county. Summons was served upon Mary S. Miller in Garfield county, Okl., and upon S. R. Miller in Beaver county, Okl. Neither of the defendants were served with summons in this action in Dewey county, Okl. Default was made by both defendants in this action; neither defendant filing any pleading which would constitute a general appearance upon the part of either of them, and neither appearing at the trial of the cause in person or by counsel. Judgment was rendered for the plaintiff in the action and the mortgaged property later sold and the proceeds applied to the payment of the debt due; J. W. Thompson being the purchaser at the sale. The judgment contained the following proviso:

"If the amount derived from said sale is insufficient to satisfy judgment and costs, that execution issue against the defendants for the remainder unpaid."

The mortgaged property did not bring a sum sufficient to pay the whole of the debt, but left a deficiency unpaid, and later on a writ in execution was issued out of the court, and a levy made upon other lands-i. e., lands other than the land covered by the said mortgage, owned by the plaintiff in error in Dewey county, Okl., and sold to J. W. Thompson-and motion to confirm filed.

Thereupon the defendant S. R. Miller filed a motion to quash said execution and set aside the sale, and also filed an original action, No. 2005, to enjoin the plaintiff Thompson and the sheriff of Dewey county from executing a deed conveying the lands in controversy. The two actions were consolidated on the trial to the court, which at the conclusion of the hearing rendered judgment, in substance, as follows:

"That the motion to quash the alias execution be overruled; that the prayer of the plaintiff S. R. Miller in cause No. 2005 is denied; that the motion of plaintiff J. W. Thompson to confirm the sale had in the foreclosure proceedings, is sustained. The court further found, upon an examination of the proceedings had under the alias execution, that the proceedings were regular and sufficient. It was the further order, judgment, and decree of the court that the sheriff make, execute, and deliver to the purchaser, J. W. Thompson, a good and sufficient conveyance therein, conveying to him the land in controversy. It was further ordered, adjudged, and decreed by the court that the defendants S. R. Miller and Mary S. Miller are by virtue of said proceedings divested of all right, title, and interest in and to the lands in controversy."

To all of which orders, rulings, judgments, and decrees of the court the defendant S. R. Miller excepted. Motion for new trial was filed and overruled, and the case is here on appeal for review.

The plaintiff in error bases his contention for a reversal upon two propositions: First, that the service of summons in a county other than the one where the foreclosure action was brought was not sufficient to give the court personal jurisdiction of the defendant and authorize a personal judgment; second, that the land levied upon under the alias execution to...