Thornburgh v. Ben Hur Coal Co.
| Decision Date | 14 November 1950 |
| Docket Number | No. 33761,33761 |
| Parties | THORNBURGH v. BEN HUR COAL CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. A judgment providing that unless, within ninety days from final judgment therein, the defendant, its successors or assigns are actually producing coal upon a mineral lease then in litigation, said lease shall be cancelled, is not a final judgment.
2. A writ of execution issued on a judgment which shows on its face that it is not final, is premature.
W. J. Peterson, Bill Peterson, Okmulgee, for plaintiff in error.
Steele & Boatman, Okmulgee, for defendant in error.
The appeal before us arose out of the following facts and circumstances.-Mac Thornburgh, plaintiff in error here, and another filed an action in the District Court of Okmulgee County against Ben Hur Coal Company, a corporation, to cancel a coal mining lease covering certain lands in that county. The lease was dated April 30, 1929, and was for a primary term of 15 years and as much longer as coal was mined. On March 26, 1947, the court entered a judgment, the pertinent portion of which is as follows: 'It is therefore considered, ordered, adjudged and decreed that unless within ninety (90) days from final judgment herein the Ben Hur Coal Company, its successors or assigns, are actually producing coal upon said lease premises that the coal lease described in plaintiff's Amended Petition be cancelled, and in such event all rights thereunder of the Ben Hur Coal Company shall cease and terminate, except the right to remove its property as provided in said lease.'
Both parties filed motions for new trial, which were overruled. Ben Hur Coal Company gave notice of appeal, and perfected its appeal to this court as Supreme Court Case No. 33,370. On November 26, 1947, Ben Hur Coal Company filed in this court its motion to dismiss its appeal, attaching thereto an affidavit to the effect that during the month of October, 1947, it produced coal from the leased premises, was continuing to produce coal therefrom, and that, having complied with the 90-day provision of the above decree dated March 26, 1947, the questions involved in the appeal had become moot.
On December 1, 1947, the defendants in error in that case filed a motion to dismiss the appeal on the ground that the judgment of March 26, 1947, was not final and therefore not appealable. They also raised the objection that the defendants in error in this case had made no objections and preserved no exceptions to the decree of March 26, 1947, and had presumably waived any objections they had to that judgment.
On December 16, 1947, this court entered an order in Case No. 33,370 granting the motion of Ben Hur Coal Company to dismiss its appeal and striking the motion of the Thornburghs to dismiss the appeal.
The Thornburghs, after the mandate of this court had reached the Clerk of the District Court of Okmulgee County, secured the issuance of an execution directing the sheriff to dispossess the Ben Hur Coal Company from the leased premises. Ben Hur Coal Company filed a motion to recall the execution. The trial court recalled the execution upon the ground that the judgment of March 26, 1947, did not become final December 16, 1947, when Ben Hur Coal Company's motion to dismiss the appeal was sustained, and the 90-day period had not expired, and the execution was therefore prematurely issued. Mac Thornburgh alone has appealed from this order, and this brings us to the case now under consideration. Mac Thornburgh has presented the following propositions:
'1. The interlocutory judgment rendered on March 26, 1947, became final 90 days from the date thereof, and the coal lease was entitled by law to be decreed cancelled as of June 25, 1947.
'2. When the appeal of the defendant in error was dismissed by the Supreme Court of Oklahoma, the effect was the same is if no appeal had ever been taken from the interlocutory judgment of March 26, 1947.
When we look at the judgment rendered on March 26, 1947, we see at once that it is not a final judgment because it says that the defendants have ninety days after final judgment to produce coal from premises in question, and that if...
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Federal Deposit Ins. Corp. v. Tidwell
...explained that an execution is premature when issued on a judgment that shows on its face that it is not final. Thornburgh v. Ben Hur Coal Co., 203 Okl. 553, 224 P.2d 249 (1950). An erroneous execution arising from a foreclosure proceeding, by itself, is insufficient to warrant extraordinar......
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Thompson v. Independent School Dist. No. 94 of Garfield County, I-94
...1045, 1049-1050 (Okla.1994), (attorney's fees are allowed to a prevailing party when specified by statute).1 Thornburgh v. Ben Hur Coal Co., 203 Okl. 553, 224 P.2d 249, 250 (1950).2 12 O.S.1991 §§ 1031 et seq.3 See Philip Carey Co. v. Vickers, 53 Okl. 569, 157 P. 299 (1916); syllabus 4 in T......
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Burkhart's Estate v. Wabaunsee
...Vickers, 53 Okl. 569, 157 P. 299 (1916); syllabus 4 in Tippins v. Turben, 162 Okl. 136, 19 P.2d 605 (1933).8 Thornburgh v. Ben Hur Coal Co., 203 Okl. 553, 224 P.2d 249, 250 (1950).9 Pleasant v. Allen Bros., supra note 7.10 Since Burkhart, supra note 1, never dealt with the issues raised by ......
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Stekoll v. Jones
...termination of the sixty day period. 1 This analysis is in accord with prior authority from this jurisdiction. Thornburgh v. Ben Hur Coal Co., 203 Okl. 553, 224 P.2d 249 (1950). In that cause a judgment providing for a cancellation of a mineral lease unless lessee was producing coal from th......