Turk v. Mayberry
| Decision Date | 06 February 1912 |
| Docket Number | Case Number: 1188 |
| Parties | TURK v. MAYBERRY. |
| Court | Oklahoma Supreme Court |
¶0 1. COURTS--Inferior Courts--Jurisdiction. Mayors of cities and towns in Indian Territory, after June 28, 1898, and prior to statehood, ex officio had jurisdiction in civil suits, the same as United States Commissioners in Indian Territory during the same period.
2. JUDGMENT-- Record--Transcript -- Enforcement. Judgments of United States Commissioners and mayors of cities and towns in Indian Territory, valid and enforceable at the date the state was admitted into the Union, can be transferred to the district court of the proper county, on transcript of the proceedings, and entered on the judgment docket, and enforced by execution out of the district court.
3. APPEARANCE -- General Appearance -- Proceeding for Appeal. Under the law in force in Indian Territory prior to statehood, the filing of the statutory affidavit and bond for appeal from the judgment of a mayor of a city to the United States Court constituted a general appearance, in an action by the party so taking the appeal, and waived all irregularities regarding the service of summons in the lower court.
4. EXECUTION--Sale--What Law Governs. A sale of real estate, upon execution issued since statehood, to enforce payment of a judgment rendered prior to statehood in Indian Territory, was made subject to the right of the judgment debtor to redeem the property so sold within one year after the sale by paying, as provided by the law in force in Indian Territory at the time the judgment was rendered, the purchase price, together with 15 per cent. per annum thereon, and all lawful charges. Held, that a confirmation of such sale, and ordering the sheriff to execute deed to the lands, before the expiration of the statutory time allowed by the laws in force in Indian Territory, prior to statehood, for redemption of the lands by the judgment debtor, was error, and did not deprive the debtor of his right to redeem; and the order of court, confirming the sale and ordering deed to issue before such period allowed for redemption, is set aside and vacated, with directions.
5. CONSTITUTIONAL LAW -- Vested Rights -- Redemption from Foreclosure. The statutory right of redemption from mortgage foreclosure or execution sale is a rule of property, and cannot be impaired, after the right has accrued, by subsequent legislation.
6. APPEAL AND ERROR--Harmless Error. Though the court, before confirming a sale under execution, should have disposed of a pending motion to quash the execution, the failure to do so was not reversible error, where the motion had been pending for nearly a year, and was not called to the attention of the trial court, and did not on its face make a prima facie case for quashing the execution.
7. EXECUTION--Sale--Credit. Under Mansf. Dig. Ark., sec. 3056, providing that in all cases where the right to stay the execution exists sales shall be on credit of three months, and section 3026, providing that any execution on a judgment or decree which could be stayed may be stayed, where the right to stay the execution did not exist, it was not necessary that the property be sold on credit, especially where, in the motion to quash the execution, the published notice of sale, showing that the sale was to be for cash, was set up and mentioned, but no complaint was made or objection urged to the terms of the sale.
Error from District Court, McClain County; R. McMillan, Judge.
Action by F. D. Mayberry against Nathan Turk. From an order confirming a sale under execution in favor of the plaintiff, defendant brings error. Reversed and remanded, with directions.
Glasco & Jacobs, for plaintiff in error.
Rennie, Hocker & Moore, for defendant in error.
¶1 This proceeding in error is brought to correct alleged error in the confirmation of a sale of lands under execution. In disposing of the questions presented, it is necessary that a brief history of the litigation be given.
¶2 The case was originally brought by F. D. Mayberry against Nathan Turk, in the mayor's court at Purcell, on May 28, 1907, by filing a complaint, affidavit, and bond for attachment and garnishment. There was service of process on the garnishee, warning order published, attorney for nonresident defendant appointed, who filed report. On July 30, 1907, judgment was given against the defendant, Turk, and the attachment was sustained, and the garnishee ordered to pay a certain amount into court. There was no personal service of summons on the defendant. On August 19, 1907, the defendant, Turk, filed in the case his affidavit and bond for an appeal to the United States Court for the Southern District of Indian Territory, sitting at Purcell. This bond was approved by the mayor's court, and the appeal allowed. The transcript in appeal was filed in the United States Court October 23, 1907. On March 16, 1908, the defendant, Turk, who had taken the appeal, filed a motion to dismiss the case. Thereafter, the order bearing the date, the court heard the motion and dismissed the appeal. Exceptions were taken by both parties; but the order dismissing the appeal was not taken up. On April 18, 1908, the judgment of the mayor's court was ordered placed on the judgment rolls and docket of the district court; the original papers and transcript of the mayor's court proceedings and judgment being filed therein. On April 25, 1908, execution was issued out of the district court, and was levied on lot 3, block 119, in the city of Purcell. The property was advertised for sale, and was appraised, and on June 2, 1908, sold under the execution for $ 1,000; the same being more than the appraised value. On May 29, 1908, defendant filed motion to quash execution and set aside the judgment. On February 27, 1909, the court entered judgment, confirming the sale and ordering the sheriff to execute deed to the purchaser. The defendant excepted to the making of the order, filed motion for new trial, and, this being overruled, took exceptions and appealed to this court. On the 27th day of June, 1911, the death of the plaintiff in error was suggested to this court, and the cause was revived in the name of Sarah Turk, administratrix, and heirs.
¶3 The plaintiff in error urges the following as error: (1) That judgment in the case was void, and could not support the execution. (2) That the court erred in confirming the sale before disposing of a pending motion to quash the execution. (3) That it was error to confirm a sale not on credit. (4) That, on judgment rendered prior to statehood, the judgment debtor had the right to redeem from any sale made under execution; and that this right was not taken from him by the change of laws at the time of statehood.
(1) Was the judgment void? A mayor of a city or town in Indian Territory had, after June 28, 1898, all the jurisdiction to hear and determine cases that United States Commissioners in Indian Territory had, and this jurisdiction was the equivalent of the jurisdiction of a justice of the peace under the laws of the state of Arkansas in force in the Indian Territory. The jurisdiction of mayors was conferred by act of Congress, approved June 28, 1898 (Act June 28, 1898, c. 517, 30 Stat. 495).
¶4 The mayor's court, in rendering judgment in rem, sustaining the attachment and condemning the money in the hands of the garnishee, was certainly, in this case, within the law. In rendering judgment in personam, he exceeded his power, under the law, for want of a personal service of summons. This part of the judgment would unquestionably be void, if the defendant has not appeared in the suit. Did his filing his affidavit and bond for appeal and his appeal of the case constitute a general appearance and a waiver of irregularities in the service, or the want of service, in this case? We think it did. An appeal to the circuit court under the Arkansas law was not taken to review or correct irregularities in the proceedings or judgments of the inferior court, but was for the purpose of trying and determining the case in the circuit court de novo--a trial on the merits.
¶5 This precise question has been decided by this court in the case of Farmers' National Bank of Vinita v. First National Bank of Pryor Creek, 24 Okla. 140, 103 P. 685. In that case, Justice Williams, speaking for the court, says:
"It has been repeatedly held by the Supreme Court of Arkansas that a party, by appealing, made himself a party to the proceeding, and could not thereafter object to the jurisdiction of the court over his person"
--citing McKee v. Murphy, 1 Ark. 55; Smith v. Stinnett, 1 Ark. 497; Ball v. Kuykendall, 2 Ark. 195; Sykes v. Laferry, 25 Ark. 99; K. C., S. & M. R. Co. v. Summers, 45 Ark. 295.
¶6 Therefore it follows that, when the plaintiff in error, defendant below, filed his affidavit and bond and took his appeal, superseding the judgment, this was a general appearance and waiver of all the irregularities in the trial court as to jurisdiction of his person, and that, upon the appeal being dismissed on the motion of the appellant, it left the mayor's court judgment a valid one that could be enforced.
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