Town of Byars v. Sprouls

• Decision Date: 13 July 1909
• Docket Number: Case Number: 167
• Citation: 1909 OK 204,24 Okla. 299,103 P. 1038
• Parties: TOWN OF BYARS v. SPROULS.
• Court: Oklahoma Supreme Court

1909 OK 204

103 P. 1038

24 Okla. 299

TOWN OF BYARS v. SPROULS.

Case Number: 167

Supreme Court of Oklahoma

Decided: July 13, 1909

Syllabus

¶0 APPEAL AND ERROR--Orders Appealable--Vacation of Judgment. Where, pursuant to Wilson's Rev. & Ann. St. 1903, sections 4760, 4761, an order is made to set aside a judgment of the district court affirming the judgment of a mayor's court for failure to prosecute for irregularities in obtaining said judgment of the district court, said order is not final, and error therefrom will not lie.

Error from District Court, McClain County; R. McMillian, Judge.

J. H. Sprouls was convicted of violating an ordinance of the town of Byars, and, having appealed, judgment of affirmance for want of prosecution was rendered, which was thereafter set aside on motion, from which order the town appeals. Dismissed.

J. B. Thompson, for appellant.

Duke Stone, for appellee.

TURNER, J.

¶1 On October 22, 1907, J. H. Sprouls, defendant in error, was arrested and the next day was tried, convicted, and fined in the mayor's court of the town of Byars for violating an ordinance of said town. The next day he filed affidavit and bond, and prayed and was granted an appeal to the United States Court for the Indian Territory, Southern District, at Purcell, which met in regular term at that place on November 11, 1907, and continued to hold until November 13, 1907, when it adjourned. On December 12, 1907, said Sprouls having failed so to do, plaintiff in error by leave of court caused to be filed and docketed in said court a transcript, together with all the papers and process filed before the mayor of said town in said cause, and moved the court to affirm said judgment of the mayor of the town of Byars for the reason that defendant had failed to prosecute his said appeal with due diligence, which was done. After said term had adjourned, to wit, on January 30, 1908, and during vacation, defendant filed a motion based upon the third ground mentioned in Wilson's Rev. & Ann. St. Okla. 1903, § 4760, alleging irregularities in obtaining said judgment, and prayed that the same be set aside. On March 9, 1908, on a day in the next regular term of said court at said place, after hearing said motion on an agreed statement of facts the same was by the court sustained, and said judgment set aside, from which said order setting aside said judgment plaintiff in error, said town of Byars, appeals. The only question necessary for us to determine is: Is this an appealable order? We think not, as the same is not a final order, but interlocutory.

¶2 This proceeding was brought under sections 4760, 4761, Wilson's Rev. & Ann. St. Okla., which were adopted from Kansas and are identical with sections 4669 and 4670 of the General Statutes of that state of 1889. In 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...