State ex rel. Com'rs of Land Office v. Warden

• Court: Oklahoma Supreme Court
• Writing for the Court: RILEY, Justice.
• Citation: State ex rel. Com'rs of Land Office v. Warden, 168 P.2d 1010, 197 Okla. 97, 1946 OK 155 (Okla. 1946)
• Decision Date: 07 May 1946
• Docket Number: 32075.
• Parties: STATE ex rel. COM'RS OF LAND OFFICE v. WARDEN et al.

168 P.2d 1010

197 Okla. 97, 1946 OK 155

STATE ex rel. COM'RS OF LAND OFFICE v. WARDEN et al.

No. 32075.

Supreme Court of Oklahoma

May 7, 1946

Appeal from District Court, McClain County; Ben T. Williams, Judge.

Action by the State, on the relation of the Commissioners of the Land Office, against Irving C. Warden and others, to foreclose a real estate mortgage. From a judgment setting aside sale and confirmation of sale under judgment entered in the action, the plaintiff appeals.

Modified and affirmed.

Syllabus by the Court.

1. The State, by commencing an action, subjects itself to the procedure established for its final and complete disposition in the courts, by appeal or otherwise, including the procedure established by law for vacating judgments.

2. Title 12 O.S. 1941 § 1031 does not contain all the grounds upon which a judgment may be vacated. Under Subdivision 4, § 520, Title 50 Appendix U.S.C.A. (Soldiers' and Sailors' Civil Relief Act 1940), when a judgment is rendered against any person in military service during the period of his service or within thirty days thereafter, and it is made to appear that such person was prejudiced, by reason of his military service, in making his defense, the court rendering the judgment may, upon application of such person or his legal representative, not later than ninety days after the termination of the military service, open the judgment so that such a defendant, or his legal representative, may be let in to defend.

3. In a mortgage foreclosure proceeding, the sale of the mortgaged property is a judicial sale, and confirmation is a final and binding judgment of the court. Hall et al. v Holloway, 62 Okl. 192, 162 P. 186, 188; Moore v McPherson, 106 Kan. 268, 187 P. 884; Baker v. Home Building & Loan Ass'n, 179 Okl. 218, 65 P.2d 169.

4. Under Title 50 U.S.C.A.Appendix § 526 the period during which the maximum rate of 6% interest is chargeable against a person in the military service covers only that period of such service occurring after October 6, 1942.

Everett H. Welborn and Richard A. Jackson, both of Oklahoma City, for plaintiff in error.

Cook & Bingaman, of Purcell, for defendants in error.

RILEY Justice.

This is an appeal from a judgment setting aside a sale and confirmation of sale under a judgment entered in an action to foreclose a real estate mortgage.

On August 15, 1929 Irving C. Warden and Bessie S. Warden husband and wife, being the owners of the land involved, located in McClain County, executed and delivered their promissory note, and mortgage securing the same, to the Conmissioners of the Land Office. Thereafter they conveyed the land to Mabel M. Smith, who died June 17, 1936, leaving as her sole heirs, her husband, V. V. Smith, and three children, Colbert Smith, Theople Smith (now Cole), and Jean Smith (now Griffith).

Action to foreclose the mortgage was commenced in the District Court of McClain County seeking a money judgment against Irving C. Warden and Bessie S. Warden. Theople Cole (Nee Smith), Jean Smith (now Griffith), Colbert Smith, and V. V. Smith were made parties defendant. Other persons were made parties defendant but they defaulted. After the action was commenced, V. V. Smith, by quitclaim deed, conveyed all his right, title, and interest in the property to the three children of Mabel M. Smith.

At the time the action was commenced, defendant Colbert Smith was a minor, over the age of 14 years as alleged in the petition. Summons was served on him but to represent him, no guardian ad litem was appointed. On January 16, 1941, before judgment was rendered, Colbert Smith attained the age of majority. When the case came on for trial, March 5, 1941, one of the attorneys for the plaintiff filed a non-military affidavit, required by the Soldiers' and Sailors' Civil Relief Act of 1940, 50 U.S.C.A.Appendix § 501 et seq., stating that none of the defendants was then in the military service of the United States; that defendants and each of them had been legally served and duly notified of the commencement of the action and had not appeared or pleaded, and they were in default. Judgment was entered that same day, for the plaintiff, reciting that said defendants Theople Cole, Jean Smith, Colbert Smith, and V. V. Smith appeared by their attorneys.

Personal judgment was rendered against the defendants Irving C. Warden and Bessie S. Warden in the sum of $3113.05 with interest thereon from March 5, 1941 at the rate of 10% per annum, and for costs including $175 attorney's fees, and for the foreclosure of the mortgage as against all of the defendants.

Thereafter, on July 21, 1941, defendant Colbert Smith was inducted into the military service of the United States. He was engaged in that service when the hearing was had in the proceedings, now involved.

December 15, 1941 an order of sale was issued, directing the sale of the property, without appraisement. The land was advertised and sold to the plaintiff, State of Oklahoma, for the sum of $2,000. On January 21, 1942, motion to confirm the sale was filed and on March 5, 1942, the sale was confirmed.

Thereafter, on November 22, 1943, defendant Colbert Smith, joined by his two sisters, filed in the action a 'Petition showing cause against judgment, * * * for new trial and to vacate judgment confirming sheriff's sale, and sheriff's deed * * *'. Petitioners assailed the original judgment on the ground that an excessive rate of interest had been charged as against Colbert Smith during the period of his military service. Petitioners attacked the sale and confirmation upon the ground that the confirmation was a judgment of the court rendered against the defendant Colbert Smith, by default, while he was in the military service of the United States and without any non-military affidavit having been filed at the time the judgment was entered.

Petitioners alleged that the State of Oklahoma, through the Commissioners of the Land Office, was threatening to sell the property, or a part thereof, so as to cast a cloud upon the title of the defendants. They prayed for a restraining order to prevent a subsequent sale of the land. A restraining order was issued but later modified to the extent that the Commissioners of the Land Office were authorized to sell an oil and gas lease covering the land. The order directed that the proceeds of the sale of any oil and gas lease be deposited in court to await further order of court.

Summons was issued on the petition and served on Robert S. Kerr, Chairman of the Commissioners of the Land Office. Motion to quash the summons and service was filed and overruled. A demurrer to the petition was filed, and defendants obtained leave to amend and amended their petition. The demurrer was overruled and the State, as plaintiff, answered. The issues joined were tried to the court, resulting in a general finding in favor of defendants. The judgment vacated the order confirming the sheriff's sale, the sheriff's sale and deed, and the judgment of foreclosure. The court reduced the interest rate from 10% per annum to 6% after July 21, 1941, the date defendant Colbert Smith entered the military service, and found the amount due on the debt. The judgment decreed an oil and gas lease to be a valid and subsisting oil and gas lease and made provision for application of the proceeds therefrom.

The State appeals and on its behalf it is contended that the trial court erred in overruling the motion to quash the summons and its service. Thereunder, plaintiff urges this to be a proceeding to vacate or modify a judgment after term time as provided by Title 12 O.S.1941 § 1031 et seq. under Subdivisions 4 to 9; that Sec. 1033 requires the proceedings to be by verified petition and by service of summons. Plaintiff asserts that the issue arises out of the last sentence of Sec. 1033 which provides: 'On such petition, a summons shall issue and be served as in the commencement of an action'. The position of plaintiff is that this is a suit against the State and since the State cannot be sued without its consent, as a consequence there is no provision in our statute designating any officer upon whom service of summons may be had and therefore it is impossible to obtain service of summons upon the Commissioners of the Land Office.

It has often been held that, when acting in its sovereign capacity, without its consent the State cannot be sued. But this is not a suit against the State. It is a proceeding authorized by law in an action commenced by the Commissioners of the Land Office on the relation of the State. This proceeding is authorized by Title 64, O.S.1941 § 160. The statute provides that the Commissioners of the Land Office are authorized and empowered to bring or defend suits in the name of the State in all matters affecting loans and lands in trust or belonging to the State.

Where a state sues to enforce its rights or redress its wrongs, it is generally subject to ordinary rules of law applicable to private litigants. Ex parte State ex rel. Attorney General, 245 Ala. 193, 16 So.2d 187. The Texas courts hold the general rule to be that where a state voluntarily files a suit and submits its right for judicial determination, it will be thereby bound and in defense all matters properly defensive may be plead and proved, and this includes the right to make any defense by answer or cross-complaint germain to the matter in controversy. Commonwealth of Massachusetts v. Davis, Tex.Civ.App., 160 S.W.2d 543; Commonwealth of Massachusetts v. United Northern, Tex.Civ.App., 160 S.W.2d 563.

In Arkansas, it is held: 'The State, when it becomes a suitor in its own courts, has the same rights and is subject to like restrictions as private suitors, and must submit to and abide by the [same] results.'...