Guinn v. Security State Bank

168 P. 804 | Okla. | 1917

This case comes on at this time upon motion to dismiss the appeal. The defendant in error secured a money judgment, in the trial court, and a decree of foreclosure of mortgage against the plaintiffs in error. Pending appeal in this court, without supersedeas, an order of sale issued to enforce the judgment. Plaintiffs in error paid the judgment to prevent sale. Defendant in error moves to dismiss the appeal upon the ground that, the judgment having been fully paid, the issues involved have become moot. In the cases cited in support of the motion there was a voluntary payment of the judgment or settlement of the issues.

A payment of the Judgment to prevent sale under execution or order of sale is not a voluntary satisfaction of the judgment. An involuntary payment or satisfaction of judgment or decree cannot be construed as a release of errors assigned on appeal. 3 C. J. 675-678; O'Hara v. McConnell, 93 U.S. 150, 23 L.Ed. 840; Erwin v. Lowry, 7 How, 172, 12 L.Ed. 655; Freight v. Wyand (Kan.) 99 P. 611; Auld v. Kimberlen, 7 Kan, 601; Kerr v. Reece, 27 Kan. 469.

The motion to dismiss is overruled.

All the Justices concur.