Guinn v. Security State Bank

1917 OK 531, 168 P. 804, 74 Okla. 102, 1917 Okla. LEXIS 232

Opinion

OWEN, J.

Tbis case comes on at this time upon motion to dismiss tbe appeal. Tbe defendant in error secured a money judgment, in tbe trial court, and a decree of foreclosure of mortgage against tbe plaintiffs in error. Pending appeal in tbis-court, without supersedeas, an order of sale issued to enforce the judgment. Plaintiffs in error paid tbe judgment to prevent sale. Defendant in error moves to dismiss the appeal upon the ground that, tbe judgment having been fully paid, tbe issues involved -have become moot. In the cases cited in support of the motion there was a voluntary payment of tbe judgment or settlement of tbe issues.

A payment of tbe judgment to prevent sale under execution or order of sale is not a voluntary satisfaction of tbe judgment. An involuntary payment or satisfaction of judgment or decree cannot be construed as a release of errors assigned on appeal. 3 C. J. 675-678; O’Hara v. McConnell, 93 U. S. 150, 23 L. Ed. 840; Erwin v. Lowry, 7 How, 172, 12 L. Ed. 655; Freight v. Wyand (Kan.) 99 Pac. 611; Auld v. Kimberlen, 7 Kan. 601; Kerr v. Reece, 27 Kan. 469.

The motion to dismiss is overruled.

All the Justices concur.