Mobley v. State ex rel. Com'Rs of Land Office
| Decision Date | 18 February 1947 |
| Docket Number | Case Number: 32173 |
| Citation | 198 Okla. 250,1947 OK 49,177 P.2d 503 |
| Parties | MOBLEY v. STATE ex rel. COM'RS OF LAND OFFICE |
| Court | Oklahoma Supreme Court |
¶0 1. LIENS - Statutory right of redemption in person having interest in property.
Every person having an interest in property subject to a lien has a right to redeem it from the lien at any time after the claim is due (42 O. S. 1941 § 18).
2. MORTGAGES - Right of owner of interest in property to redeem it from mortgage lien is defense against foreclosure of lien on such interest.
The right accorded to the owner of an interest in property to redeem it from the lien of a mortgage to which such interest is subordinate, although it is no defense to the action on the note secured by the mortgage, is a defense against the foreclosure of the lien of the mortgage on such interest.
3. SAME - Judgment of foreclosure subject to vacation upon demand of person owning interest in property who was not served with process.
In an action to foreclose a mortgage, jurisdiction of the person of the owner of an interest in the premises which is subordinate and inferior to the lien of the mortgage is necessary to authorize the court to enter a valid judgment foreclosing the lien of the mortgage on such interest. And where judgment of foreclosure is rendered without service of process, such owner is entitled, upon compliance with the terms and provisions of the law, to demand the vacation thereof.
4. JUDGMENT - Relief based on extrinsic evidence may be had against judgment rendered without service of process.
Relief based on evidence dehors the record may be had against a judgment rendered without service of process, under the third subdivision of 12 O. S. 1941 § 1031, empowering the court to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made, on account of irregularity in obtaining a judgment or order.
5. SAME - APPEARANCE - Rule that motion to vacate judgment on both jurisdictional and nonjurisdictional grounds constitutes general appearance not applicable where additional relief sought is not inconsistent with entire want of jurisdiction.
The basis of the established rule in this jurisdiction to the effect that a motion to vacate a judgment which contains both jurisdictional and nonjurisdictional grounds constitutes a general appearance in the case is the inconsistency that arises where one seeking relief on the basis of the absence of jurisdiction in the court seeks further relief to which he would be entitled only on the hypothesis that the court had jurisdiction. And, as a corollary, it follows that when the additional relief sought is not inconsistent with the entire want of jurisdiction alleged there is no such inconsistency and the stated rule does not apply.
6. SAME - MORTGAGES - Owner of interest in mortgaged, property seeking to vacate judgment of foreclosure did not waive right to rely on absence of jurisdiction.
Where the owner of an interest in premises which is subordinate to the lien of a mortgage files motion to vacate judgment foreclosing the mortgage upon the sole ground that the court was without jurisdiction of the person of the movant and therein seeks further relief that is merely incidental to and consistent with the vacation of the judgment for want of jurisdiction, such further requests do not result in a waiver of the right to rely on the absence of jurisdiction.
Appeal from District Court, Cleveland County; Ben T. Williams, Judge.
Action by M.L. Reid against the State of Oklahoma on relation of the Commissioners of the Land Office on motion to vacate judgment of foreclosure of real estate mortgage. From judgment dismissing the motion to vacate, movant and B. A. Mobley et al. appeal. Reversed and remanded, with directions.
Rex Belisle, John R. Keahey, and A.E. Pearson (Priest & Belisle, of counsel), all of Oklahoma City, for plaintiff in error M.L. Reid.
Everett H. Welborn, Richard A. Jackson, and Floyd Wheeler, all of Oklahoma City, for defendant in error.
¶1 This appeal involves the correctness of an order and judgment of the district court of Cleveland county refusing to vacate a default judgment on the application of a defendant in an action wherein the judgment was rendered against such defendant.
¶2 The State of Oklahoma on relation of the Commissioners of the Land Office, holder of a note secured by real estate mortgage, instituted action in said court for recovery of personal judgment upon the note and foreclosure of the lien of the mortgage. Petitioner, M.L. Reid, who subsequent to the execution of the mortgage acquired and held of record a mineral interest in the premises, was made a party defendant to the action as one having some interest in the premises subordinate to that of the plaintiff. Summons was issued to the sheriff of Oklahoma county to serve said defendant, and return thereof was made showing service "by leaving with Mrs. M.L. Reid (his wife) a member of his family over the age of 15 years, for said defendant at his usual place of residence in said county, a true and certified copy. . . ." No response to the summons by answer or otherwise was filed, nor was appearance by or on behalf of such defendant made in the action. Thereafter, on January 23, 1942, the court rendered its judgment, which as against said defendant was on default of appearance. The judgment directed that the land be sold as provided by law without appraisement in satisfaction of plaintiff's mortgage lien, and it was sold to the plaintiff on September 23, 1942.
¶3 Thereafter, on May 5, 1944, defendant M.L. Reid filed in the case her petition to vacate judgment.
¶4 Therein it is alleged that petitioner was the owner of record of a mineral interest and as such owner was entitled, under 46 O. S. 1941 § 4, to redeem the land within six months after said judgment and that the judgment was void as to her because obtained by mistake and irregularity in that the court had not acquired jurisdiction of her person. It is therein stated that at the time of the issuance and service of summons defendant, a female, was a resident of Marshall county and there resided in the home of her parents, Mr. and Mrs. J.F. Reid; that she was without knowledge of the issuance and purported service of the summons, and had no knowledge of the foreclosure action until about four months prior to May 1, 1944.
¶5 Therein it is further alleged that defendant has a valid defense in that she offers and agrees to pay to the plaintiff all sums that are justly due and owing on the mortgage. The prayer of the petition is that the court vacate the judgment, grant defendant the right to pay off the indebtednes on the property and to be subrogated to the rights of the plaintiff and that the statutory period be afforded her for the redemption. Accompanying the petition as an exhibit thereto is tendered an answer to the petition of the plaintiff in the cause wherein defendant admits the allegation in the petition of her ownership of an interest in said lands; the ownership by plaintiff of said mortgage and defendant's interest being subordinate thereto, and that the loan secured by said mortgage and the interest therein are in arrears, and alleges that she is ready, able and willing to make payment thereof, and tenders and agrees to pay to the plaintiff all sums due to plaintiff thereon.
¶6 On the same date an attorney for plaintiff accepted service of notice in writing of the filing of the petition to vacate, a copy of which accompanied the notice, and that it would be presented to the court on May 12, 1944.
¶7 Plaintiff interposed a demurrer to the petition to vacate alleging six grounds therefor. Only those of the grounds relied on here in support of the judgment need be considered.
¶8 On hearing had on May 12, 1944, the court overruled the demurrer and, plaintiff electing to stand thereon, the court awarded defendant a judgment in substantial accord with the prayer of the petition to vacate, to which judgment plaintiff excepted and gave notice of an appeal. Thereafter, on July 1, 1944, the court of its own motion vacated the order overruling the demurrer and the judgment rendered thereon and reset the demurrer for hearing. On further hearing had on January 26, 1945, the court sustained the demurrer and dismissed the petition to vacate, and therefrom this appeal was taken.
¶9 As grounds for reversal there is presented by plaintiff in error the following propositions:
¶10 In answer thereto and in support of the judgment the following propositions are presented by defendant in error:
¶11 Since this appeal was filed defendant in error filed and presented and this court heard and denied a motion to dismiss this appeal. We are still of the opinion that the motion to dismiss should be denied.
¶12 The alleged error of the trial court in vacating on its own motion its earlier order overruling the demurrer and vacating the judgment thereon for the defendant presented under plaintiff in error's first proposition is deemed unimportant to this appeal and will...
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