Vann v. Union Cent. Life Ins. Co.
| Decision Date | 29 June 1920 |
| Docket Number | 9836. |
| Citation | 191 P. 175,79 Okla. 17,1920 OK 243 |
| Parties | VANN ET AL. v. UNION CENT. LIFE INS. CO. ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An order of the court overruling a motion to vacate a judgment on the ground that it is void on its face is a "final order," to reverse which a proceeding in error may be prosecuted in this court under the provisions of sections 5236 and 5237, R. L. 1910.
An order vacating a judgment for the purpose of permitting a party against whom the judgment is rendered to prosecute or defend is interlocutory, because further proceedings are necessary in the trial court. Such "interlocutory order" is not appealable.
A motion to vacate a judgment filed under the statute is an attack upon the validity of the judgment, and the order of the court, either overruling the motion or vacating the judgment on the ground that it is void on its face, is a final order and judgment involving the merits of the action to reverse which a proceeding in error may be prosecuted in this court.
If the objections to the confirmation of a sheriff's sale are based on matters which should be insisted upon as grounds for vacating the decree of sale, then the remedy is a motion to vacate the judgment.
Although the judgment may be valid, if there was fraud or irregularities in the sale and the facts to prove the same are presented to the court, and the court overrules the objections based thereon and confirms the sale, then a proceeding in error may be prosecuted from the order of confirmation.
A motion to vacate and set aside a judgment and the order of the court thereon are not parts of the record, unless brought into the same by a bill of exceptions or case-made.
The objections and exceptions to the order confirming a sheriff's sale are not parts of the record proper, unless brought into the same by a bill of exceptions or case-made.
There are two ways of bringing a record to this court in support of a petition in error: (a) The party appealing may attach to his petition in error a case-made containing all the record including evidence and statements of the exceptions, without the necessity of having the exceptions reduced to writing allowed, and signed by the trial judge; (b) or the appealing party may attach to his petition in error a transcript of the record, and if he desires to bring to this court any part of the record, other than the pleadings, the process, the return, reports, verdict, orders, and judgments, as provided for in section 5146, R. L. 1910, he must incorporate the same into the record by a bill of exceptions.
The bill of exceptions must be reduced to writing during the term of court at which the proceedings were had, unless the ruling and decision excepted to is made in vacation or at chambers, allowed and signed by the trial judge, and filed with the pleadings as a part of the record. The bill of exceptions never becomes a part of the record until it is filed in the trial court; and unless filed in that court it cannot be incorporated into a transcript in support of the petition in error in this court.
"Experience, observation, the thoughtful consideration of the subject through many generations of men by publicists and statesmen, have produced a consensus of opinion throughout the civilized world that the final decision of grave issues should not be left to the court or judge who first hears or tries them, however learned, able, wise, and impartial he may be, but that those disappointed in the first decision should be permitted to invoke the judgment of other unprejudiced minds upon the righteousness of the conclusion." Motions to dismiss appeals are not looked upon with favor, and unless it clearly appears from the appellant's statement of his own case that the appeal is wholly without merit, or it is manifestly clear from a casual examination of the record that the only point involved is a clear and unmixed question of law, firmly and finally settled adversely to plaintiff in error by the decisions of this court, or the court is without jurisdiction, or the case is moot, a motion to dismiss will not be considered in advance of the date the case comes on regularly to be heard on its merits.
The statute does not require that the bill of exceptions, in order to be filed, show the indorsement of the clerk on the bill that it was actually filed. The clerk's indorsement is nothing more than evidence of filing, and if the bill of exceptions, after having been allowed and signed by the trial judge, was deposited in due time with the clerk, to be preserved with the pleadings as a part of the record, it was filed within the requirements of the statute.
Error from District Court, Nowata County; W. J. Campbell, Judge.
Suit by the Union Central Life Insurance Company and others against William Vann and another to foreclose a mortgage. Decree for plaintiffs, motion to vacate the foreclosure judgment overruled, and defendants bring error. On motion to dismiss. Motion overruled conditionally.
The statute does not require that the bill of exceptions, in order to be filed, show the indorsement of the clerk on the bill that it was actually filed. The clerk's indorsement is nothing more than evidence of filing, and if the bill of exceptions, after having been allowed and signed by the trial judge, was deposited in due time with the clerk, to be preserved with the pleadings as a part of the record, it was filed within the requirements of the statute.
W. H. Vann, of Lenapah, for plaintiffs in error.
C. J. Sloop, of Independence, Kan., and Geo. B. Schwabe and E. J. Raymond, both of Nowata, for defendants in error.
On March 26, 1918, William Vann and Lovey Vann, as plaintiffs in error, filed their petition in error in this court against the defendants in error, Union Central Life Insurance Company and others, wherein they allege that a judgment by default was entered against them in favor of defendants in error on February 8, 1917, in the district court of Nowata county, foreclosing a real estate mortgage; that thereafter, and on August 4, 1917, plaintiffs in error filed a motion to vacate the foreclosure judgment, and gave notice to the adverse parties, as required by section 5268, R. L. 1910; also that they objected to the confirmation of the sale of the land, which objection was overruled, and the sale confirmed. They also claim that the trial court overruled their motion to vacate the judgment, and they come to this court with their petition in error, attaching thereto what purports to be a transcript of the record.
1. The purported transcript of the record shows that plaintiffs in error did file a motion to vacate the judgment for want of jurisdiction of the subject-matter of the action. The defendants in error have filed a motion to dismiss the appeal. In the brief of counsel for plaintiffs in error, it is insisted that the motion to vacate the judgment was filed under the authority of sections 5267 to 5274, inclusive, R. L. 1910. Of course, if the court had no jurisdiction over the subject-matter of the action, and that is disclosed by an inspection of the judgment roll, the judgment is void on its face, and may be vacated at any time on motion. Pettis v. Johnston (decided June 1, 1920) 190 P. 681. An order of the court overruling a motion to vacate a judgment on the ground that it is void on its face is a final order, to reverse which a proceeding in error may be prosecuted in this court under the provisions of sections 5236 and 5237, R. L. 1910. To hold otherwise is to make the trial court the court of last resort in an attack on a judgment by a method expressly provided by statute for testing its validity. It is an order affecting a substantial right. It is not an interlocutory order. It is final. As said by Lord Alverstone, C.J., speaking for the English Court of Appeals: "The test as to whether an order should be considered final or interlocutory is this: If the order finally disposes of the rights of the parties, it ought to be treated as final; if, on the other hand, further proceedings are necessitated, it ought to be treated as interlocutory." 2 Standard Proc. 166.
When the court overrules the motion to vacate, that settles the matter, and "no further proceedings are necessitated." While an order vacating a judgment, for the purpose of permitting a party against whom the judgment is rendered to prosecute or defend, is interlocutory ( Moody & Co. v. Freeman & Williams, 24 Okl. 701, 104 P. 30; Maddle v. Beavers, 24 Okl. 703, 104 P. 909; Town of Byars v. Sprouls, 24 Okl. 299, 103 P. 1038; Moody & Co. v. Freeman-Sipes Co., 29 Okl. 390, 118 P. 134; Smith v. Whitlow, 31 Okl. 758, 123 P. 1061), because further proceedings are necessitated in the trial court, an order overruling the motion to vacate is final, and as it affects a substantial right an appeal therefrom lies to this court. This court in Wesley v. Diamond, 26 Okl. 170, 109 P. 524, after reviewing the authorities, said:
"That the correct rule to be observed is that an appeal will lie to this court under the statute quoted prior to final judgment whenever the order which is made involves the merits of the action or any part thereof."
A motion to vacate, filed under the statute, is an attack upon the validity of the judgment, and the order of the court either overruling the motion or vacating the judgment on the ground that it is void on its face, is a final order and judgment involving the merits of the action. See Wauchope v. McCormick, 158 Mo. 660, 59 S.W. 970. The motion to vacate is a statutory substitute (although not exclusive) for a bill in equity, and no one would claim that a judgment of the court in equity, denying or granting plaintiff relief, was not appealable. Stevirmac Oil & Gas...
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