Reeder v. Mitchell
| Decision Date | 02 February 1926 |
| Docket Number | 16030. |
| Citation | 244 P. 773,117 Okla. 21,1926 OK 100 |
| Parties | REEDER et al. v. MITCHELL et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The provisions of section 388, C. O. S. 1921, providing for the sale of attached real estate under an order of sale issued upon a judgment confirming the attachment, do not contemplate a levy of such order as in case of an execution before appraisers are appointed, but requires the sheriff to proceed in all respects "as if the property had been levied upon by execution," and the sheriff may call an inquest at any time after the order of sale is delivered to him and before the sale thereof.
A pleading is "filed," within the meaning of the statute, when it is delivered to the court clerk for that purpose, and the neglect or mistake of such clerk to indorse the proper date of filing thereon does not affect the pleading.
A publication notice for the sale of real property, first published in a daily paper on the 3d day of December, and in each and every issue of such paper thereafter up to the 2d day of January, the sale being on said date, is sufficient under the provisions of section 708, C. O. S. 1921.
A party attacking the sufficiency of a proceeding leading up to a judicial sale has the burden of proving the insufficiency thereof.
Commissioners' Opinion, Division No. 4.
Appeal from District Court, Tulsa County; Albert C. Hunt, Judge.
Action by John O. Mitchell and others, as trustees of the trust estate known, as John O. Mitchell Company, against C. L Reeder and another. Judgment was rendered sustaining plaintiffs' motion to confirm a judicial sale of attached real estate, and overruling defendants' motion to quash the return, and defendants appeal. Affirmed.
Woodson E. Norvell and Edward E. Harvey, both of Tulsa, for plaintiffs in error.
Davidson & Williams, of Tulsa, for defendants in error.
The parties will be referred to as plaintiffs and defendants, as they were designated in the trial court, inverse to the order in which they here appear.
On the 3d day of July, 1923, the plaintiffs recovered a judgment against the defendants for $1,426.36 and an order and decree sustaining an attachment upon certain real estate in the city of Tulsa. It was further ordered and decreed that the attached property "be sold by the sheriff of Tulsa county under the same restrictions and regulations as if the same had been levied upon by execution."
On the 21st day of November, 1923, an order of sale was issued by the clerk of said court and delivered to the sheriff directing him to proceed according to law and sell, as in case of execution, the said real estate.
On the 2d day of January, 1924, the sheriff made the return of said order of sale, setting forth that he received said writ on the 21st day of November, 1923, that he levied the writ on the attached property on the 30th day of November, 1923, and caused the same to be appraised by three disinterested householders residing in Tulsa county, and caused a notice of the time and place of the sale of said property to be published for 30 days in the Tulsa Daily News, a newspaper of general circulation in Tulsa county. A copy of said appraisement, notice of sale, and printer's affidavit was attached to and made a part of the return, and the record shows that the property was appraised at $750, and sold for $500 to John O. Mitchell Company.
On the 4th day of January, 1924, the plaintiffs filed their motion to confirm the sale, and the defendants filed their motion to quash the return. The motion to confirm was sustained by the court, and the motion to quash was overruled. The defendants excepted, and have duly appealed to...
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