Price v. Sanditen

• Decision Date: 13 November 1934
• Docket Number: Case Number: 22801
• Parties: PRICE v. SANDITEN et al.
• Court: Oklahoma Supreme Court

1934 OK 632

38 P.2d 533

170 Okla. 75

PRICE v. SANDITEN et al.

Case Number: 22801

Supreme Court of Oklahoma

Decided: November 13, 1934

Syllabus

¶0 1. Judgment--Judgment Rendered Pending Motion for New Trial Held not "Final Judgment."

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. Same--Dormancy of Judgment Determined by Date Motion for New Trial Was Overruled.

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. Judgment for plaintiffs, and defendant appeals. Reversed and remanded, with directions.

W. A. Barnett and Charles A. Dickson, for plaintiff in error.

Silverman & Rosenstein, for defendants in error.

BUSBY, J.

¶1 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.

¶2 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, Oklahoma, 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.

¶3 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.

¶4 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 from 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."

¶5 We are therefore called upon to determine whether the five years provided in the above section begin 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.

¶6 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."

¶7 The courts have many times pointed out that there can be but one final judgment in any action.

¶8 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 Okla. 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 Okla. 89, 175 P. 504, and Sautbine v. U.S. Cities Corp., 114 Okla. 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.

¶9 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. (Mo.) 58 S.W.2d 700, it is said:

"This court has frequently and consistently ruled, not only that there can be only one final judgment in a case (Russell v. Railroad, 154 Mo. 428, 55 S.W. 454; Seay v. Sanders, 88 Mo. App. 478), which must dispose of all the issues and all the parties, but also that such final judgment cannot properly be, and in legal contemplation never is, rendered or entered until after motion for new trial or arrest of judgment is acted on or the time for filing same expired; and, if a new trial is granted, not till the new trial is had or the case finally disposed of. Holland v. Marshall (Mo. App.) 181 S.W. 124; Scott v. Scott, 44 Mo. App. 600; Cramer v. Barmon, 193 Mo. 327. 91 S.W. 1038. In legal contemplation the date of the judgment is the date when the motion for new trial is overruled. Walter v. Scofield, 167 Mo. 537, 67 S.W. 276; Scott v. Realty Co., 241 Mo. 112, 122, 145 S.W. 48, 50, where it is said: In theory, the judgment follows the order overruling the motion, though in practice it precedes it.' And, if such motion is granted, the case is left pending, and no final judgment is entered till the new trial is had or some equivalent action taken. If a judgment final in form is entered without awaiting the filing or disposal of the motion for new trial or in arrest of judgment, such judgment is in fact merely interlocutory, from which no appeal will lie. Costello v. Kansas City, 209 Mo. App. 155, 232 S.W. 165."

¶10 In the case of Holland v. Marshall (Mo. App.) 181 S.W. 124, it is said:

"The statute (sec. 2090, R. S. 1909) defines judgment' as the final determination of the right of the parties in the action.' It is held in Wolff v. Vette, 17 Mo. App. 36, that a final judgment' is one in which the court's jurisdiction has been exhausted as to the matters decided, and that this is the test of a final judgment for the purpose of determining the right of appeal in this state. It is held, also, that but one final judgment can be rendered in any cause. Russell v. Railway Co., 154 Mo. 428, 55 S.W. 454; Baker v. City of St. Louis, 189 Mo. 375, 88 S.W. 74; Seay v. Sanders, 88 Mo. App. 478; August Gast Bank Note & L. Co. v. Fennimore Ass'n, 79 Mo. App. 612. And it is held (though not in a case like this) that under this statute a judgment is not final until the rights of all the parties to the action are finally determined. Deck v. Wright, 135 Mo. App. 536, 116 S.W. 31. As said in Scott v. Scott, 44 Mo. App. 600, 603 (and many other cases):

" Technically and properly, the judgment of the court after its decision, or after verdict, should not be rendered until after the expiration of four days, in which a motion for a new trial may be filed, if the term so long continues. * * * And if such motion for new trial be filed, the judgment is, of course, suspended until it is overruled.'

"And in Walter v. Scofield, 167 Mo. 537, 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. 327, 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 motions 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 party against whom the judgment is entered from disposing of his property between the date of the returning of the verdict and the entry of the judgment; but, theoretically, the judgment is not entered until after those motion have been

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