State ex rel. Com'rs of Land Office v. Whitfield
| Decision Date | 04 May 1948 |
| Docket Number | 33104. |
| Citation | 193 P.2d 306,200 Okla. 300,1948 OK 108 |
| Parties | STATE ex rel. COMMISSIONERS OF LAND OFFICE v. WHITFIELD et al. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Carter County; John C. Caldwell, Judge.
Action by the State of Oklahoma, on relation of the Land Commissioners of the Land Office of the State, against Roger Whitfield and Myrtle Whitfield to recover judgment for deficiency due on a prior judgment that had become dormant. From a judgment for defendants, the plaintiff appeals, and defendants move to dismiss appeal.
Motion overruled and judgment reversed with directions to overrule demurrer to petition and to proceed in accordance with opinion.
Syllabus by the Court.
1. A demurrer to a petition is a 'pleading' and a part of the 'record' or judgment roll, under 12 O.S.1941 § 704.
2. A decree sustaining a demurrer to a petition and rendering judgment for the defendant may be reviewed on appeal by a petition in error and duly certified transcript of the record, under 12 O.S.1941 § 956.
3. It is not necessary that a party appealing by petition in error and transcript of the record serve the transcript on the opposite party or file it in the trial court, as is required in case of appeal by case made.
4. The State of Oklahoma on the relation of the Commissioners of the Land Office may maintain an independent action to recover a judgment for the deficiency due on a prior final money judgment that has become dormant, and neither the one year statute of limitations (12 O.S.1941 § 1071) nor any other statute of limitations bars such an action.
Lonnie L. Corn and Floyd Wheeler, both of Oklahoma City, for plaintiff in error.
H. A Ledbetter, of Ardmore, for defendants in error.
On October 3, 1929, the plaintiff recovered a judgment against Roger Whitfield and Myrtle Whitfield in the District Court of Carter County for the sum of $7,469.66 with interest thereon at the rate of 10 per cent per annum together with an attorney's fee of $500 and a decree foreclosing a real-estate mortgage given to secure the note representing the indebtedness. On February 11, 1935, the real-estate was sold at a foreclosure sale, the plaintiff purchasing the property for $5,000 and applying the purchase price upon the amount of the judgment. After the purchase price was so applied, there remained a deficiency on the judgment in the sum of $6,490.26, which deficiency drew interest at the rate of 10 per cent per annum and there also remained due an attorney's fee of $500. On November 18, 1946, this action was commenced to recover a judgment for the amount of such deficiency, interest and attorney's fee. The defendants filed a demurrer to the petition, which alleged the foregoing facts, assigning as grounds therefor, (1) that another action was pending between the plaintiff and defendants, (2) that the court was without jurisdiction to render two judgments in favor of the plaintiff and against the defendants, and (3) that the petition shows on its face that the action is barred by the statute of limitations. From a decree sustaining said demurrer and rendering judgment for the defendants, the plaintiff has perfected this appeal by transcript.
1. Defendants have filed a motion to dismiss the appeal (a) because the plaintiff did not serve a case made upon the defendants within sixty days as authorized by the judgment appealed from, (b) because the appeal could only be prosecuted by case made or bill of exceptions and not by transcript (c) because the transcript was not filed in the District Court of Carter County and (d) because the appeal is frivolous.
The motion to dismiss the appeal is without merit and is overruled. The demurrer to the petition is a 'pleading' as the term is used in 12 O.S.1941 § 704 and the petition, demurrer and judgment are a part of the 'record' as defined in said section. The term 'record' as therein used is synonymous with the term 'judgment roll' as used at common law. Dime Savings & Trust Co. v. Able, 185 Okl. 461, 94 P.2d 834. A judgment sustaining a demurrer to the petition and entering judgment for the defendant on the refusal of the plaintiff to plead further may be reviewed on appeal by a petition in error and duly certified transcript of the record. 12 O.S.1941 § 956; Menten v. Shuttee, 11 Okl. 381, 67 P. 478. A transcript of the record need not be served upon the appellee or filed in the lower court, as is required of a case made.
2. The defendants contend that an action cannot be maintained on a judgment that has become dead by reason of failure to timely revive it, and they cite authorities in support of this contention involving private rights. They also cite authorities having to do...
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