Aetna Building & Loan Ass'n v. Williams

Supreme Court of Oklahoma

Aetna Building & Loan Ass'n v. Williams

1910 OK 108, 108 P. 1100, 26 Okla. 191, 1910 Okla. LEXIS 33

CourtSupreme Court of Oklahoma

DecidedMay 10, 1910

Docket1386

StatusPublished

Cited by9 cases

This text of 1910 OK 108 (Aetna Building & Loan Ass'n v. Williams) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aetna Building & Loan Ass'n v. Williams, 1910 OK 108, 108 P. 1100, 26 Okla. 191, 1910 Okla. LEXIS 33 (Okla. 1910).

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Opinion

TUENEE, J.

On December 12, 1908, the First National Bank of Ponca City, defendant in error,, plaintiff below, sued Nathaniel L. Williams and Sara L. Williams to foreclose a mortgage given by them to secure a debt of $770.63, evidenced by promissory note dated January 12, 1906, on certain lots in Ponca City. Aetna Building & Loan Association, plaintiff in error, and the Ponca State Bank were made parties defendant. On January 11, 1909, the loan association filed a general denial, and by way of cross-complaint set up and prayed the foreclosure of a mortgage executed *192 to them by the same parties on the same property on January 24, 1903, to secure a note for $350. After demurrer thereto filed by said Williams and wife and overruled, they were given time to answer, which they failed to do, and, on June 23, 1909, the cause coming on to be heard, said association appeared and took judgment by default on its cross-petition against said bank and the Ponca State Bank and said Williams and wife, declaring said mortgage to be a first lien upon said land, and ordering the same sold to satisfy its mortgage debt. On the next day said Williams and wife appeared and moved to set aside said judgment, showing cause. On September 7, 1909, one of the regular days of the same term, pursuant to said motion, said judgment was set aside by the court, to which the loan association excepted, and brings said order to this court for review.

The motion to dismiss this proceeding in error, on the ground that said order is not a final order, and therefore not appealable, must be sustained. The law in this case is governed by the law as laid down by this court in Town of Byars v. Sprouls, 24 Okla. 299, 103 Pac. 1038, See, also, Merle & Heaney Mfg. Co. v. Wallace et al. 48 Neb. 886, 67 N. W. 883; Smith et al. v. Livesey et al., 67 N. J. Law, 269, 51 Atl. 453; Freeman Ad. v. Ambrose, 12 Wash. 1, 40 Pac. 381; 2 Am. Eng. Law, 108, note 1; McCulloch v. Dodge et al., 8 Kan. 476.

The petition in error is dismissed.

All the Justices concur.

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TUENEE, J.

On December 12, 1908, the First National Bank of Ponca City, defendant in error,, plaintiff below, sued Nathaniel L. Williams and Sara L. Williams to foreclose a mortgage given by them to secure a debt of $770.63, evidenced by promissory note dated January 12, 1906, on certain lots in Ponca City. Aetna Building & Loan Association, plaintiff in error, and the Ponca State Bank were made parties defendant. On January 11, 1909, the loan association filed a general denial, and by way of cross-complaint set up and prayed the foreclosure of a mortgage executed *192 to them by the same parties on the same property on January 24, 1903, to secure a note for $350. After demurrer thereto filed by said Williams and wife and overruled, they were given time to answer, which they failed to do, and, on June 23, 1909, the cause coming on to be heard, said association appeared and took judgment by default on its cross-petition against said bank and the Ponca State Bank and said Williams and wife, declaring said mortgage to be a first lien upon said land, and ordering the same sold to satisfy its mortgage debt. On the next day said Williams and wife appeared and moved to set aside said judgment, showing cause. On September 7, 1909, one of the regular days of the same term, pursuant to said motion, said judgment was set aside by the court, to which the loan association excepted, and brings said order to this court for review.

The motion to dismiss this proceeding in error, on the ground that said order is not a final order, and therefore not appealable, must be sustained. The law in this case is governed by the law as laid down by this court in Town of Byars v. Sprouls, 24 Okla. 299, 103 Pac. 1038, See, also, Merle & Heaney Mfg. Co. v. Wallace et al. 48 Neb. 886, 67 N. W. 883; Smith et al. v. Livesey et al., 67 N. J. Law, 269, 51 Atl. 453; Freeman Ad. v. Ambrose, 12 Wash. 1, 40 Pac. 381; 2 Am. Eng. Law, 108, note 1; McCulloch v. Dodge et al., 8 Kan. 476.

The petition in error is dismissed.

All the Justices concur.

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1910 OK 108, 108 P. 1100, 26 Okla. 191, 1910 Okla. LEXIS 33, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aetna-building-loan-assn-v-williams-okla-1910.

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