Skinner v. First Nat. Bank
| Decision Date | 20 November 1928 |
| Docket Number | 18338. |
| Citation | 273 P. 893,135 Okla. 61,1928 OK 671 |
| Parties | SKINNER v. FIRST NAT. BANK OF DAVIS. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 22, 1929.
Syllabus by the Court.
Where real estate is sold at sheriff's sale, under execution issued on a dormant judgment, the dormancy of such judgment appearing on the face of the proceedings, it is not error on the part of the court to deny confirmation, even though no objection is made thereto by the judgment debtor, it not appearing that such judgment debtor had notice or knowledge thereof. It being the duty of the court to examine the proceedings, it may, on its own motion, refuse to confirm such sale.
Where a creditor sues his debtor and at the same time has a receiver appointed for the benefit of all the creditors, the receiver takes charge of all the assets and property of such debtor and thereafter another creditor of such debtor intervenes in said action, files his claim therein, and obtains judgment thereon, the appointment of such receiver will not operate to suspend the running of the statute during the time the receiver is in charge, and if such intervening judgment creditor fails to have execution issued on such judgment within five years from the rendition thereof, such judgment becomes dormant.
Commissioners' Opinion.
Appeal from District Court, Murray County; A. C. Barrett, Judge.
Proceedings by Fred B. Skinner for confirmation of sheriff's sale of real estate at execution sale under a judgment against the United Mines & Milling Company, wherein the First National Bank of Davis filed objections. From an order denying confirmation, Fred B. Skinner appeals. Affirmed.
Bowling & Farmer, of Pauls Valley, for plaintiff in error.
Young & Powell, of Sulphur, and W. N. Lewis, of Davis, for defendant in error.
On April 25, 1913, one Ben S. Ansel brought suit against the United Mine & Milling Company in the district court of Murray County, Oklahoma, to recover the sum of $400 and for the appointment of a receiver. Mrs. M. M. Cross, another creditor of said United Mine & Milling Company, intervened in said action, filed her claim, and on the 30th day of August, 1915 recovered judgment on said claim in the sum of $2,565, which judgment was subsequently assigned to Fred B. Skinner plaintiff herein.
Execution was first issued on such judgment November 2, 1922. The judgment was at this time dormant. On March 11, 1926, an alias execution was issued and levied on certain real estate belonging to the judgment debtor and sold to satisfy the judgment. Plaintiff in error filed his motion to confirm the sale. No objection to confirmation was made by judgment debtor, nor does it appear that it had notice or knowledge thereof.
The First National Bank of Davis, claiming to be a creditor of the United Mine & Milling Company, filed objections to confirmation. The bank claimed no right, title, or interest in the premises sold, nor did it claim any lien thereon. It based its right to object to the confirmation on the sole ground that it was a creditor of the United Mine & Milling Company. The trial court sustained the protest of the bank and overruled the motion to confirm. The ruling of the court was based on the theory that the judgment was dormant; that no execution could have been legally issued thereon.
Plaintiff in error contends that, even though it is conceded that the judgment was dormant at the time of the issuance of the execution, the bank, being a stranger, could not legally raise this question. With this contention we agree. But an inspection of the record readily discloses the dormancy of the judgment. We are therefore of the opinion that the court upon its own motion, might rightfully deny confirmation.
Section 709, C. O. S. 1921, provides:
"If the court, upon the return of any writ of execution, for the satisfaction of which any lands or tenements have been sold, shall, after having carefully examined the proceedings of the officer, be satisfied that the sale has, in all respects, been made in conformity to the provisions of this article, the court shall direct the clerk to make an entry on the journal that the court is satisfied of the legality of such sale, and an order that the officer make to the purchaser a deed for such lands and tenements; and the officer, on making such sale, may retain the purchase money in his hands until the court shall have examined his proceedings as aforesaid, when he shall pay the same to the person entitled thereto, agreeably to the order of the court."
It is further contended by counsel for plaintiff in error that even though the judgment was dormant, an execution could legally be issued thereon and that a sale under such execution, not objected to by judgment debtor, would be valid. The following authorities tend to support this contention: Sherrard's Ex'rs v. Johnston et al., 193 Pa. 166, 44 A. 252, 74 Am. St. Rep. 680; Gillespie v. Switzer, 43 Neb. 772, 62 N.W. 228; Cleveland v. Tittle, 3 Tex. Civ. App. 191, 22 S.W. 8; Weis v....
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