GUINN v. SECURITY STATE BANK

GUINN v. SECURITY STATE BANK
1917 OK 531
168 P. 804
74 Okla. 102
Case Number: 9343
Decided: 11/06/1917
Supreme Court of Oklahoma

GUINN et al.
v.
SECURITY STATE BANK.

Syllabus

¶0 Appeal and Error--Abatement--Payment to Prevent Enforcement of Decree.
Payment of a judgment to prevent sale under an order of sale to enforce a decree of foreclosure, is an involuntary payment and does not abate pending proceedings in error to reverse the judgment.

Action by the Security State Bank against W. T. Guinn and others. Judgment for plaintiff, and defendants bring error. On motion to dismiss appeal. Overruled.

Erwin & Erwin, for plaintiffs in error.
H. W. Harris, for defendant in error.

OWEN, J.

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

¶2 A payment of the judgment to prevent sale under execution or order of sale is not a voluntary satisfaction of the 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. MacConnell, 93 U.S. 150, 23 L. Ed. 840; Erwin v. Lowry, 7 HOW 172, 12 L. Ed. 655; Freight v. Wyandt (Kan.) 99 P. 611; Auld v. Kimberlin, 7 Kan. 601; Kerr v. Reece, 27 Kan. 469.

¶3 The motion to dismiss is overruled.

¶4 All the Justices concur.