Annis v. Bell

1901 OK 3, 64 P. 11, 10 Okla. 647, 1901 Okla. LEXIS 52

Opinion

Opinion of the court by

Irwin, J.:

On the question of ownership of the cattle in question in this suit at the time of levy and sale on execution, the court below has found for the plaintiff, and that she was the owner at that time; and, on examination of the record, it is found that there is evidence which reasonably tends to sustain this finding; and, under the well established rule of this court, this finding will not be disturbed; and, in fact, there seems to be no contention on this question, so that the only question necessary to be considered in this case is, Was the execution issued out of the probate court a protection to the sheriff to the extent that it would exonerate him from liability in damages for the levy made under it? And this necessarily brings us to a consideration of the question, Was the person in whose favor the execution issued a creditor within the meaning of the statute so that she could call in question the dona fides of the sale between the parties H. O. Bell and Maggie Bell? By sec. 2623 of the statute of 1893, such a transfer of personal property as is shown by the evidence in- this case, would be fraudulent and void as against creditors of the vendor. If the person claiming to be a judgment creditor of H. 0. Bell, in this case was in law such a creditor, then this transfer between Bell and his wife was fraudulent and void. If she was such a creditor, then it was by virtue of the decision rendered in the probate court, in the bastardy proceedings. That brings us to the consideration of the question, Was that a final judgment? If so, it makes her a judgment creditor of H. 0. Bell; otherwise, not.

• A judgment, it seems to us, must mean the ultimate conclusion of the court, or the final decision of the issues joined between the parties. The supreme court of the state of Illinois, in a case reported in the 17 111. at page 167, have said :

“A final decision is one from which no appeal or writ of error can be taken.”

Blackstone defines a final judgment:

“In practice a judgment which puts an end to an action at law by declaring that the plaintiff either has or has not entitled himself to recover the remedy he sues for.” (3rd. Blaefcstone’s Commentaries, 398.)

“A judgment which cannot be appealed from, which is perfectly conclusive upon the matter adjudicated.” (24 Pick. 300.)

• Mr. Black in his law dictionary defines a final judgment, “as one which puts an end to the action, or disposes of the whole case, finally and completely by declaring, either that the plaintiff is entitled to recover a specific sum or that he cannot recover, and leaving nothing to be done but the execution of the judgment.” (Black’s Law Dictionary, page 654.) . ;

The code of the state of New York declares:

“A judgment is the final determination of the rights of the parties in the action.” (N. Y. Code, sec. 245; Code of Civil Procedure, Cal., sec. 577; Code of Civil Procedure, Dakota, sec. 228.)

The supreme court of Nebraska has said:

“No judgment or order which does not determine the rights of the parties in the case, and preclude further inquiry, as to their rights in the premises, is a final judgment.” (7 Nebraska, 398.)

Under the law of these, decisions it will be seen that what was done in the probate court of Payne county in the bastardy proceedings before it, was not a final decision, or a final judgment between the parties, and if not then Ida L. Dillman, in whose favor the execution was issued, was not a creditor of H. O. Bell, within the meaning of the law. The action taken in the probate court was but one of the steps necessary to be taken to determine whether she was a creditor or not. The final decision of this was in the hands of the supreme court. While it was true, as contended by counsel for appellant, that the appeal does not stay the execution unless the bond is filed, still, the execution would only protect the officer, while acting within the scope of its terms, or the orders therein contained. The order in that execution was, to seize the property of H. O. Bell; this would not authorize him to, or protect him in the seizure and sale of the personal property of a third person, or of any person not named in the writ. Now it seems to us that it is immaterial whether the transfer from Bell to his wife of the property in controversy, was fraudulent or not, unless the party for whom the sheriff acted, in levying the execution, to-wit: Ida L. Dillman, was in a position where she could legally raise that question. The fraud of that transfer could be no protection to the sheriff for seizing property which he was informed was the property of a third person, unless he, or the person for whom he acted, bad the right to raise this question. If the sheriff was desirous of protecting himself, in the premises, he could have demanded indemnity from the person claiming to be a judgment creditor, and in whose favor this execution was issued, before he made the levy and sale. It seems to us the judgment of the probate court, which was not final by reason oh a pending appeal,-cannot make a person a judgment creditor so as to question or attack a transfer of personal property on the grounds of fraud, where no debt existed independent of said action of the probate court, or where the debt depended entirely upon the' decision of such court. Another reason why we think the proceedings in the probate court cannot be regarded as a judgment on which an execution could properly issue, is, that any finding of the prebate court as to the necessary and proper amount for the maintenance of the bastard child, must' depend upon the preliminary decision of guilty or not guilty of the charge of bastardy. This must first be set- tied finally and conclusively. In this case the jury had returned a verdict of guilty, and the probate court had pronounced judgment upon the verdict, but from this decision of the court the defendant had a legal right to appeal, and he had availed himself of this right, and perfected his appeal, and whether this finding of guilty in the probate, court was final, or not, depended upon the action of the supreme court, to which the appeal had been taken, and where it was then pending. It could only be final when affirmed by the supreme court. Any other rule, it seems to us, would render the appeal useless, and the law of appeal nugatory. It seems to us. that prior to a final decision of guilty, and a final order, “charging the defendant with the maintenance of the child, in such sum or sums and in such manner as the court shall direct,” in accordance with the requirements of the statute, the relation of debtor and creditor cannot exist in this kind of an action. The main issue in the case is whether the defendant is guilty or not guilty of being the father of the bastard child; that issue and the decision thereon was appealed from the decision of the probate to the supreme court, and the finding of the sum or sums necessary for the maintenance of such child was merely an incident to this issue, and while such appeal was pending and undetermined in the supreme court, this finding of the probate court was necessarily suspended.

In the case of Kitch v. Schoenwell, 80 Ind. page 74, the supreme court says

“The fixing of the amount to be paid was not a matter occurring at the trial, but a part of the proceeding and judgment of the court after the trial has been concluded, and the verdict returned by the j ur v.”

In Scott v. The State, 102 Ind. 278, the court says:

“It has been held and correctly held, that in a case like this, the trial proper ends with the finding that the defendant is the father of the child, and hence no question will be raised on a question subsequent to such finding, by assigning such ruling as a cause for a new trial.”

If the property actually belonged to the. plaintiff at the time of the levy and sale, by the sheriff, and on this question we regard the decision of the court below as conclusive, then she had a right of action against some one for its wrongful conversion, and this action could only be maintained against the party who actually took and converted the same, which in this case was the sheriff; and as we before observed, if the sheriff had availed himself of the protection which the law gave him, and had demanded an indemnifying bond, before levying, he would have been amply protected; if he did not do so, then he acted in the matter at his peril.

Ajs we find no error in the record, the decision of the court below is affirmed.

Burford, O. J., having presided in the court below, not sitting; all of the other Justices concurring.