127 P.2d 186 | Okla. | 1942
Lead Opinion
This is an appeal by Frank B. Methvin, hereinafter referred to as defendant, from an order of the district court of Caddo county sustaining a garnishment and directing application of the garnisheed funds to the payment of a judgment formerly rendered against defendant in favor of Deapolis Methvin, hereinafter referred to as plaintiff.
On January 4, 1924, defendant was appointed and qualified as guardian of the estate of plaintiff, Deapolis Methvin, his minor son. On May 23, 1933, the ward reached his majority and an accounting was had in the county court. As a result of said proceeding the guardian was surcharged with the sum of $763.65. He prosecuted an appeal to the district court of Caddo county, and after a hearing therein it was found that said guardian was indebted to the ward in the sum of $763.65, subject to credits for certain items, leaving a balance of $691.80. The guardian prosecuted an appeal to this court and an opinion was promulgated on September 10, 1935. In re Methvin's Guardianship,
It is contended first that the judgment was dormant upon the date of issuance of the order of garnishment in that the period of limitations of five years prescribed by the provisions of 12 O. S. 1941 § 735 had expired from the date of the judgment. It is the contention of the defendant that the five-year period began to run upon the date the judgment was originally rendered by the county court and not from the date the mandate of this court was spread of record in the county court. In this connection it is argued that defendant had failed to invoke the jurisdiction of the district court by his failure to file an appeal bond, and that the proceeding therein was a nullity. It is further argued that since the judgment of the county court was not superseded, the appeal therefrom was ineffective to suspend the operation of the statute of limitations.
In the case of In re Methvin's Guardianship, supra, it appears that when the appeal of this defendant was lodged in the district court, Deapolis Methvin filed a motion to dismiss the appeal, which was overruled; that the motion to dismiss raised the question that the district court never acquired jurisdiction of the appeal for the reason that no proper appeal bond was filed. The defendant therein relied upon the provisions of section 985, 12 O. S. 1941, providing that executors, administrators, and guardians who have given bond, with sureties, are not required to give an undertaking on appeal or proceeding in error. It appears that this defendant was successful in his contention before the district court that the statute was applicable to his appeal, and therefore he was not required to give an appeal bond. When the matter reached this court, however, the court, following numerous prior decisions, held that the statute was applicable only where the appeal was taken in the interest of the estate and had no application where the appeal was by the guardian from an order of the county court settling his final account in which order the court adjudged that the guardion was personally liable to the estate of the ward. Since the decision in the case of In re Methvin's Guardianship, supra, the case of Harjo v. Aubrey,
We pass to a consideration of the contention that since the judgment of the county court was not superseded, the appeal therefrom was ineffective to suspend the operation of the statute of limitations. The applicable statute is 12 O. S. 1941 § 735, and provides as follows:
"If execution shall not be sued out within five years after the date of any judgment that now is or may hereafter be rendered, in any court of record in this state, or if five years shall have intervened between the date of the last execution issued on such judgment and the time of suing out another writ of execution thereon, such judgment shall become dormant, and shall cease to operate as a lien on the estate of the judgment debtor: Provided, that this section shall not apply to judgments against municipalities."
In the case of Price v. Sanditen,
"We do not believe that it was the intention of the lawmakers that the five-year period provided in section 442, supra, should begin to run until a judgment becomes final. Section 416, O. S. 1931, defines a judgment as follows: 'A judgment is the final determination of the rights of the parties in an action.' "
We pointed out further that the test of a final judgment is whether or not the court's jurisdiction has been exhausted as to matters decided, and that there could be but one final judgment in any action. It was further pointed out that the fact that an execution may be issued on a judgment does not by any means determine the finality of such judgment. It is the general rule that a judgment is not final in the sense that it is conclusive upon the parties until the losing party has failed, within the time allowed by law, to perfect his appeal, or having properly perfected his appeal, until the highest court whose decision is invoked by either party upholds the decision of the trial court. Annis v. Bell,
In harmony with these principles it was held in Aaron v. Morrow,
In the early case of Bank of Stockham v. Weins,
In the instant case the garnishment proceeding which was in aid of execution was instituted within five years from the date the mandate of this court was spread of record in the county court of Caddo county, and the judgment of that court was not dormant at that time.
Other contentions of the parties have been examined and are without merit.
The judgment is affirmed.
WELCH, C. J., CORN, V. C. J., and BAYLESS and HURST, JJ., concur. RILEY, GIBSON, and DAVISON, JJ., dissent. ARNOLD, J., absent.
Dissenting Opinion
On the former appeal of this case (In re Methvin's Guardianship,
The fact that Harjo v. Aubrey,
The majority opinion misconstrues the former opinion in this case (In re Methvin's Guardianship, supra).
There we sustained the motion to dismiss for the reason that "the district court never acquired jurisdiction of the appeal." Contrary to the statement in the majority opinion, we did say, in effect, that there was an absolute failure of jurisdiction and the proceeding in the district court was a nullity.
The proceeding in the district court being a nullity, the judgment of the county court remained in that court undisturbed by the ineffective appeal, and it became final when no effective appeal was taken therefrom. It was then subject to collection by writ of execution out of the county court. 58 O. S. 1941 § 709. It is true that in Price v. Sanditen,
The majority opinion cites Aaron v. Morrow,
The judgment under consideration was entered in the county court on *181 July 27, 1933. No execution was issued thereon within five years and it became dormant. It was not revived within a year and so was dead and unenforceable when execution was issued thereon on February 6, 1940.
I therefore respectfully dissent.