Smith v. Whitlow

• Decision Date: 14 May 1912
• Parties: SMITH v. WHITLOW et al.
• Court: Oklahoma Supreme Court

123 P. 1061

31 Okla. 758, 1912 OK 413

SMITH v. WHITLOW et al.

Supreme Court of Oklahoma

May 14, 1912

Syllabus by the Court.

Same as that in Town of Byars v. Sprouls, 24 Okl. 299, 103 P. 1038.

Error from District Court, Carter County; S. H. Russell, Judge.

Action by C. R. Smith against Paul Whitlow and others. Judgment for defendants, and plaintiff brings error. Dismissed.

Brown & Shelton, of Ardmore, for plaintiff in error.

W. T Ward and Sigler & Howard, all of Ardmore, for defendants in error.

WILLIAMS J.

On August 26, 1910, the plaintiff in error, C. R. Smith, as plaintiff, commenced an action against the defendants in error, as defendants, by filing in the district court of Carter county his petition, seeking to foreclose a certain mortgage lien on certain lands. The defendant in error Mrs John Finley demurred to the plaintiff's petition, on the ground that the same did not state facts sufficient to constitute a cause of action. Afterwards, on the 31st day of December, 1910, answer was made for the defendants therein who were minors, by their guardian ad litem, and on the same day judgment was rendered against the defendants, foreclosing the mortgage lien. On April 15, 1911, an order of sale was issued. On May 6, 1911, the defendants, after notice, filed their petition to vacate said judgment and stay proceedings therein. On May 22, 1911, a petition was filed to correct said judgment. On May 22, 1911, the court, having heard the evidence, ordered that said judgment be corrected nunc pro tunc. On May 29, 1911, the court, after having heard said motion, sustained the same, and vacated and set aside said judgment.

The defendants in error move to dismiss this appeal, on the ground that it is not an appealable order.

In Town of Byars v. Sprouls, 24 Okl. 299, 103 P. 1038 List v. Jockheck,

45 Kan. 349, 27 P. 184, proceedings were brought under the fourth ground of said section 4669 to vacate a judgment pending in district court of Shawnee county in favor of the plaintiff and against the defendant therein. The cause was tried by the court, sitting as a jury, which resulted in an order vacating the judgment complained of, and allowing the defendant to plead and setting the cause for trial. The object of the appeal was a review of that order. Defendant contended that said order was not final, and therefore not appealable, and in this contention the court concurred, saying: 'An examination of the statute satisfied us that the order complained of was not, strictly speaking, the granting of a new trial. It was an order vacating temporarily a judgment had in a case, for the purpose of letting defendant therein interpose his defense, which he says he was prevented from making by plaintiff in...