Wyant v. Davidson & Case Lbr. Co.

• Decision Date: 17 September 1935
• Docket Number: Case Number: 23778
• Citation: 1935 OK 840,173 Okla. 467,49 P.2d 151
• Parties: WYANT et al. v. DAVIDSON & CASE LBR. CO.
• Court: Oklahoma Supreme Court

1935 OK 840

49 P.2d 151

173 Okla. 467

WYANT et al. v. DAVIDSON & CASE LBR. CO.

Case Number: 23778

Supreme Court of Oklahoma

Decided: September 17, 1935

Syllabus

¶0 1. Execution--Scope of Court's Inquiry on Motion to Confirm Sale of Real Estate.

On motion to confirm sale of real estate made under execution, the court should confine itself to the regularity of the proceedings on the sale, and is not required to go behind the execution and look into the regularity of the judgment.

2. Lis Pendens--Purchaser of Property Pendente Lite not Permitted to Attack Valid Judgment Establishing Materialman's Lien by Objections to Confirmation of Sheriff's Sale.

Purchaser of property pendente lite cannot, after a valid judgment is rendered establishing materialman's lien on certain property, attack said judgment by objections to the confirmation of a sheriff's sale where the proceedings of said sale are otherwise regular and in conformity with law.

3. Appeal and Error--Discretion of Trial Court--Ruling on Motion for Confirmation of Sheriff's Sale of Real Estate.

The ruling of the trial court on a motion for confirmation of sheriff's sale of real estate, or objections thereto, are questions addressed to the sound discretion of the court, and unless it appears that there has been an abuse of such discretion the ruling of the trial court will not be reversed or appeal.

4. Mechanics' Liens--Issuance of Execution on Personal Judgment Returned Unsatisfied Held not to Estop Plaintiff From Enforcing Materialman's Lien.

Execution issued on valid judgment and returned without a levy, or unsatisfied, as a result of personal judgment in action which also establishes and impresses a material man's lien on certain property, does not estop plaintiff from later proceeding to enforce the lien.

Appeal from District Court, Pottawatomie County; Hal Johnson, Judge.

Action by the Davidson & Case Lumber Company against R. Wyant and J. A. Fox et al. Judgment for plaintiff, and defendants appeal. Affirmed.

A. M. Ba'dwin, for plaintiffs in error.

G. C. Abernathy, Edward Howell, and Kenneth Abernathy, for defendant in error.

PER CURIAM.

¶1 The plaintiff below, Davidson & Case Lumber Company, a corporation, furnished certain material on or about the 29th day of August, 1927, for the erection and repair of certain buildings on six lots in the city of Shawnee, Okla., described as lots 13, 14, 15, 16, 17, and 18, block 26, Hoffman's addition. These materials were furnished at the instance of the defendant R. M. Davis, under an oral contract, and this action was to foreclose a materialman's lien as provided by statute. (St. 1931, sec. 10975). One Joe B. Cobb was made a party defendant to said suit, and the allegation made in plaintiff's petition that the latter defendant claimed some right, title, or interest in and to the said property which was junior and inferior to the materialman's lien claimed by the plaintiff herein, and requiring the said Joe B. Cobb to plead what interest he might have in and to the said property. During the pendency of the action the defendant Joe B. Cobb mortgaged the said property to the defendant R. Wyant and conveyed the fee title to said property to the defendant J. A. Fox. Default judgment was rendered on the 24th day of October, 1928, against the defendant R. M. Davis in the amount of $ 342.20, with interest at 10 per cent. per annum from the 24th day of December, 1927, and $ 100 attorneys' fees. On the 29th day of October, 1928, plaintiff caused an execution to issue from the office of the court clerk of Pottawatomie county directed to the sheriff of Okmulgee county, commanding the said sheriff to levy upon the goods and chattels of the defendant R. M. Davis. This execution was returned on the 30th day of October, 1928, by order of the attorney for the plaintiff. On April 1, 1931, and while the issue joined as to the defendant Joe B. Cobb was still pending, the defendant R. Wyant filed an answer, alleging that he was the owner of a note for $ 1,500, signed by Joe B. Cobb and wife, secured by a mortgage on the property in question, the issue as between the plaintiff, David-had any interest in the said property, and praying that his mortgage be decreed to be a first lien upon the property. On the 18th day of November, 1931, the court tried the issue as between the plaintiff, Davidson & Case Lumber Company, and the defendants Joe B. Cobb and R. Wyant, and in a journal entry later filed found that Joe B. Cobb had disposed of all his right, title, and interest in the said property to the defendant J. A. Fox, that the plaintiff did not seek a personal judgment against the defendant Joe B. Cobb, and a demurrer to the evidence was therefore sustained on behalf of the defendant Joe B. Cobb. The further judgment of the court was that the plaintiff's lien was prior and superior to the right, title, and interest or any claim of the defendants Joe B. Cobb, R. Wyant, and J. A. Fox, although it does not appear that J. A. Fox was a party to the controversy at this time. The court further ordered foreclosure of the said materialman's lien, to which ruling of the court the defendant R. Wyant excepted. Execution was issued on December 21, 1931, and the property appraised, advertised, and sold according to law to satisfy the claim of the plaintiff. Defendants Wyant and Fox filed separate objections to the confirmation of the sheriff's sale, and upon hearing said objections the trial court sustained a demurrer to the evidence offered on behalf of the defendants R. Wyant and J. A. Fox. Motions for new trial were duly filed on behalf of both objectors, overruled by the court, and after the filing of a supersedeas bond in the amount of $ 250, the case was appealed to this court.

¶2 The appellants, Wyant and Fox, make several assignments of error, which may be summed up in the following contentions:

¶3 First, that the rights of these appellants are deraigned from Joe B. Cobb, both as to the mortgage of R. Wyant and the fee title of J. A. Fox, and that the trial court having sustained a demurrer to the evidence as to Joe B. Cobb in the principal action, these appellants are entitled to succeed to Cobb's rights, and that therefore the court committed error in sustaining a demurrer to their evidence offered to sustain their objections to the confirmation of sale.

¶4 Second, that J. A. Fox, although a purchaser from Joe B. Cobb pendente lite, was not a party to the original case, and that the evidence offered in said case showed that the property belonged at all times to Cobb instead of R. M. Davis, and that therefore the judgment impressing a lien upon the property in favor of the plaintiff was void; that, being a void judgment, the court should have sustained the objections of Wyant and Fox to the confirmation of sale.

¶5 Third, that the plaintiff having caused an execution to issue directed to the sheriff of Okmulgee county on the judgment against R. M. Davis, which execution was returned by order of plaintiff's attorney, this constituted an estoppel against the plaintiff to later procure an execution on the subsequent judgment, as Davis was the only party who owed for the material furnished by the plaintiff.

¶6 The only serious contention made on behalf of Wyant and Fox is that...