SMITH v. STROUD STATE BANK

SMITH v. STROUD STATE BANK
1926 OK 916
259 P. 256
127 Okla. 3
Case Number: 16506
Decided: 11/16/1926
Supreme Court of Oklahoma

SMITH et al.
v.
STROUD STATE BANK et al.

Syllabus

¶0 1. Appeal and Error--Time for Proceedings--Effect of Motion for New Trial.
A motion for a new trial will not operate to extend the time within which an order may be appealed from, where a motion for a new trial is not necessary, but where a motion for a new trial is a prerequisite to confer jurisdiction upon this court to review the order complained of, the statutory period of limitation within which the appeal may be filed in this court begins to run from the date of the order overruling the motion for a new trial.
2. New Trial--Foreclosure--Premature Sale with Motion for New Trial Pending.
The judgment in the instant case, under date of March 17, 1924, was not such a judgment as would authorize the issuing of the order of sale, and sale of the property pending a motion for a new trial.

Roland E. Gish, for plaintiffs in error.
Ethel M. Proffit and T. H. Wren, for defendants in error.

WILLIAMS, C.

¶1 Plaintiffs in error appeal from an order overruling a motion to set aside the order of confirmation of sale of real estate under foreclosure of mortgage, in which appraisement was waived, and where the order of sale and the order confirming the sale were alleged to be void because had before six months from the date of the order overruling the motion for a new trial.

¶2 It appears from the record that a jury was waived and the case was tried to the court, who, after hearing the evidence of defendant in error, no evidence having been introduced by the plaintiffs in error, rendered a judgment for the defendant in error on the 17th day of March, 1924. Motion for new trial was filed by the plaintiffs in error on March 19, 1924, and on November 17, 1924, the motion for new trial was heard and overruled. An order of sale was issued upon the judgment of March 17, 1924, the property sold, and return of the sheriff made prior to the hearing of the motion for a new trial, but said order of sale was not issued until more than six months after the rendition of the judgment.

¶3 The plaintiffs in error assign but one ground for reversal, as follows:

"Said court erred in overruling the motion of plaintiffs in error to vacate as null and void the order of sale, the sale, and confirmation order."

¶4 It is the contention of the plaintiffs in error that a judgment being the final determination of the rights of the parties to an action, such determination is only fixed by the judgment of the court after the overruling or sustaining of a motion for a new trial, where such motion is necessary. Section 798, C. O. S. 1921, provides:

"All proceedings for reversing, vacating, or modifying judgments, or final orders shall be commenced within six months from the rendition of the judgment or final order complained of."

¶5 Section 662, C. O. S. 1921, provides:

"A judgment is the final determination of the rights of the parties in an action."