169 P.2d 208 | Okla. | 1946
Elsie Scott filed, in cause No. 68514, that which is denominated a "Petition in the Nature of Bill of Review". The movant sought vacation of a final judgment against her and in favor of C.W. Bailey foreclosing a real estate mortgage on property in Tulsa county, theretofore conveyed to movant subject to the real estate mortgage foreclosed. Movant seeks to credit the judgment for payment allegedly made by her prior to rendition of the judgment, to charge the expense of an abortive sheriff's sale of the property to the creditor who subsequently foreclosed the mortgage. The movant seeks a new trial in the mortgage foreclosure for alleged newly discovered evidence as to the credits claimed. Scott v. Bailey et al.,
The motions of C.W. Bailey and M.K. Jones, purchaser at the sheriff's sale, to strike movant's petition were sustained and the petition was dismissed. From the order of dismissal, Elsie Scott has appealed by transcript. Defendants in error move to dismiss. *153
The final judgment is not void upon the face of the record. The petition seeks relief for fraud de hors the record, and extrinsic in its nature.
12 O.S. 1941 § 1033[
The unverified petition amounts to a motion. A motion to vacate a voidable judgment or order, not void upon the record proper, is not presentable by transcript. Campbell v. Aetna Bldg. Loan Ass'n,
The ruling on a motion is not a part of the record presentable by transcript. Sautbine v. Johnson,
If the petition is treated as a motion for new trial (12 O.S. 1941 § 651[
This court cannot know from the transcript whether evidence was presented upon the petition or the motion. No evidence is presented, or presentable, by transcript in the absence of bill of exception allowed.
This court cannot conclude that verification of the petition was waived. The presumption is to the contrary.
Dismissed.
HURST, V.C.J., and WELCH, CORN, and DAVISON, JJ., concur.