Price v. Sanditen
Decision Date | 13 November 1934 |
Docket Number | 22801. |
Citation | 38 P.2d 533,170 Okla. 75,1934 OK 632 |
Parties | PRICE, Sheriff, v. SANDITEN et al. |
Court | Oklahoma Supreme Court |
Rehearing Denied Dec. 18, 1934.
Syllabus by the Court.
1. A judgment entered in a cause prior to the expiration of the three-day statutory time for filing a motion for new trial and while such motion is pending is not a final judgment as defined by section 416, O. S. 1931.
2. The period of time provided in section 442, O. S. 1931, limiting the life of a judgment, begins to run from the date a motion for new trial is overruled and not from the date the first judgment was entered.
Appeal from District Court, Tulsa County; Thurman S. Hurst, Judge.
Action by H. Sanditen and another against Charles Price, Sheriff of Tulsa County. From an adverse judgment, defendant appeals.
Judgment reversed, and cause remanded, with directions.
W. A Barnett and Charles A. Dickson, both of Okmulgee, for plaintiff in error.
Silverman & Rosenstein, of Tulsa, for defendants in error.
This action was commenced in the district court of Tulsa county by H. Sanditen and M. Sanditen against Charles Price, sheriff of said county, in which it was sought to enjoin the defendant from levying an execution against certain property of plaintiffs. A temporary restraining order was issued at the commencement of the action, and after the trial thereof an injunction was granted permanently enjoining and restraining the sheriff from levying execution upon the property of plaintiffs. From said judgment, defendant has appealed. The parties will be referred to as they appeared in the trial court.
The judgment in question was rendered by the district court of Okmulgee county in an action pending before said court, being No. 8791, styled Bank of Commerce of Okmulgee, Okl., and Roy Walcott, as bank commissioner of the state of Oklahoma plaintiffs, against H. C. Cook, Oklahoma City Salvage & Supply Company, H. Sanditen, and M. Sanditen, defendants.
The action was filed by the bank against the defendants above named on September 26, 1921, as a suit upon a promissory note. The bank failed in October, 1921. The state of Oklahoma was substituted as a party plaintiff on November 15, 1921. Judgment was entered on December 14, 1922. On December 16, 1922, a motion for new trial was filed. On December 18, 1922, a motion to vacate and for a new trial was filed and another motion to stay execution, but these papers were lost. On February 11, 1924, an order was entered overruling all motions. On May 26, 1928, a general execution was issued, delivered to the sheriff, and returned by him on July 10, 1928, showing "No property found." On July 5, 1929, the judgment was assigned to one A. E. Graham. On December 11, 1930, an execution was issued and directed to the sheriff of Tulsa county which is the execution herein involved.
Among other contentions made by the defendant, it is argued that the final judgment in this cause in Okmulgee county was not rendered until the motion for new trial therein was overruled on February 11, 1924, and consequently the execution herein was issued in the time required by section 442, O. S. 1931. Said section provides as follows: "If execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered, in any court of record in this State, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor: Provided, that this section shall not apply to judgments against municipalities."
We are therefore called upon to determine whether the five years provided in the above section begins to run from the date the judgment is originally entered or from the date a motion for new trial is overruled. The exact question has not been heretofore presented to this court, and, in the absence of a previous positive decision, has been productive of considerable confusion in our practice.
We do not believe that it was the intention of the lawmakers that the five-year period provided in section 442, supra, should begin to run until a judgment becomes final. Section 416, O. S. 1931, defines a judgment as follows: "A judgment is the final determination of the rights of the parties in an action."
The courts have many times pointed out there can be but one final judgment in any action.
Under the common law, four days were allowed after verdict in which to move for a new trial or an arrest, and a judgment signed before the expiration of such four days was fatally irregular and subject to be set aside. If during that time a motion for a new trial was made, judgment was further suspended until disposition of the motion. Under our statutes, the time for filing such motion is limited to three days. The district court, by the provisions of section 556, O. S. 1931, is vested with considerable power and latitude to vacate or modify its own judgments or orders at or after the term at which such judgment or order was made. The confusion in our practice is due in some degree to the provisions of section 546, O. S. 1931, which was construed first in the case of Barnett v. Bohannon, 27 Okl. 368, 112 P. 987, wherein this court, following a number of Kansas decisions, held that a motion for a new trial of itself did not operate to stay execution. It was also held that the trial court was vested with power to stay or arrest all process until a motion for a new trial was disposed of. This case was followed by the case of Scott v. Joines, 71 Okl. 89, 175 P. 504, and Sautbine v. United States Cities Corp., 114 Okl. 110, 243 P. 499. As we view it, said authorities are not decisive of the question here presented. The fact that an execution may be issued on a judgment does not by any means determine the finality of such judgment.
Our sister states of Texas and Missouri have statutes very similar to our own. In the recent case of Cox v. Frank L. Schaab Stove & Furniture Co., 332 Mo. 492, 58 S.W.2d 700, 701, it is said:
In the case of Holland v. Marshall (Mo. App.) 181 S.W. 124, 125, it is said:
And in Walter v. Scofield, 167 Mo. loc. cit. 548, 67 S.W. 276, the court said that the date upon which the motion for a new trial is overruled 'is the time when the final judgment is rendered and the trial court finally acted.'
In Cramer v. Barmon, 193 Mo. loc. cit. 329, 91 S.W. 1038, the court said:
'At common law, and theoretically under our statute, a judgment is not entered upon a verdict until after the motion for new trial and in arrest of judgment have been overruled. As a matter of practice in this state the custom has grown up of entering the judgment upon the verdict immediately upon the coming in thereof and before the filing of the motion for new trial or in arrest. This is done to prevent the...
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