Sparks v. City Nat. Bank of Lawton
| Decision Date | 08 September 1908 |
| Citation | 97 P. 575,21 Okla. 827,1908 OK 159 |
| Parties | SPARKS v. CITY NAT. BANK OF LAWTON et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where land has been sold on execution, any person claiming to be the owner thereof and interested in defeating the sale may although not a party to the suit, move the court to set aside such sale.
[Ed Note.-For cases in point, see Cent. Dig. vol. 21, Execution § 673.]
A motion to set aside a judicial sale is addressed to the reasonable discretion of the court, and in the absence of an abuse of that discretion this court will not interfere. The final decision of the court upon such motion is not conclusive as to the ultimate rights of either party.
Error from District Court, Comanche County; F. E. Gillette, Judge.
Action by the City National Bank of Lawton against O. G. Sparks. Mary E. L. Sparks intervened. Judgment for plaintiff, and Mary E. L. Sparks brings error.
The City National Bank of Lawton, defendant in error, plaintiff below, sued O. G. Sparks, the husband of Mary E. L. Sparks plaintiff in error, in the district court of Comanche county, on a promissory note for $150, and attached lots 30, 31, and 32, in block 62, in that city, to satisfy the debt. Later Mary E. L. Sparks appeared, and without being made a party to the suit filed a motion to dissolve the attachment, setting up claim to the property by virtue of a conveyance from her husband prior to the levying of the writ. Issues were joined upon the main case and the motion to dissolve, and on November 16, 1904, a jury was waived and the motion submitted to the court on evidence introduced by the movant. At the close of the testimony the court overruled the motion upon the ground that the conveyance from her husband was made in fraud of creditors, and rendered judgment against him on the note for principal, interest, and attorney's fees, and ordered that execution issue for $221.92, with interest thereon, and that the lots be sold to satisfy the debt. Whereupon the movant, Mary E. L. Sparks, plaintiff in error, filed a motion for a new trial, which was overruled, to which she excepted, and was given 60 days in which to make and serve a case-made to the Supreme Court. On June 11, 1906, execution issued and was levied on said lots, which were sold at sheriff's sale pursuant to said order of court. On September 10, 1906, Mary E. L. Sparks, plaintiff in error, filed a motion to set aside the sale on the ground set forth in her motion to dissolve the attachment, and offered to prove title in herself from her husband, to said lots. This evidence was excluded, and the sale confirmed, to which plaintiff in error objected and excepted, and served a case-made to the Supreme Court of the territory of Oklahoma, and the action of the court in refusing to set aside the sale and the order confirming the same are now before us for review.
Stevens & Myers, for plaintiff in error.
Smith & Thomas, for defendant in error.
The only question necessary for us to determine is whether or not the court erred in excluding the evidence offered by plaintiff in error to show title in herself to the lots levied upon and sold pursuant to the order of the court and in refusing to set aside the sale. We heartily condemn the practice pursued in this case of permitting plaintiff in error to move to dissolve the attachment, instead of requiring her to interplead for the attached property; but in view of a long line of Kansas cases recognizing the practice we will not disturb it. With the practice thus established, and which we follow reluctantly, there can be no question as to the right of plaintiff in error to file her motion to dissolve the attachment upon the ground that the lots levied upon were her property. The right so to do has been construed by those authorities as given her by Wilson's Rev. & Ann. St. Okl. 1903, § 4724, which reads: "A motion is an application for an order, addressed to the court, or a judge in vacation, or by any party to a suit, or proceeding, or one interested therein, or affected thereby." And, as stated, the practice has frequently been approved. In Green, Administrator, v. McMurtry, 20 Kan. 189, the court said: Again, in Long v. Murphy, 27 Kan. 375, a paragraph in the syllabus reads: "When land has been levied upon under an order of attachment, any person claiming to be the owner thereof and interested in discharging the property from attachment may, although not a party to the original action, move the court to discharge the attachment as to the property so claimed by him."
The fact that this motion was decided adversely to her contention did not preclude her from again coming in, after a sale of the attached property to satisfy her husband's debt, and by motion to set aside the sale again urging that the property belonged to her. This has been the practice laid down from a very early date. White Crow v. White Wing, 3 Kan. 276, was a proceeding to review an order of the district court of Wyandotte county setting aside a sale made by the sheriff of that county upon a judgment rendered therein. In that case the court in effect held that any person interested in the real estate, whether party to the suit or not, may move to set aside the sale at any time before confirmation, and may offer evidence...
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