OKLAHOMA SALVAGE & SUPPLY CO. v. FIRST NAT. BANK OF OKMULGEE

OKLAHOMA SALVAGE & SUPPLY CO. v. FIRST NAT. BANK OF OKMULGEE
1926 OK 595
251 P. 1006
122 Okla. 128
Case Number: 13312
Decided: 06/29/1926
Supreme Court of Oklahoma

OKLAHOMA SALVAGE & SUPPLY CO.
v.
FIRST NAT. BANK OF OKMULGEE.

Syllabus

¶0 1. Appeal and Error -- Petition in Error--Time for Amendment by New Assignment of Error. A petition in error in the Supreme Court cannot be amended by incorporating therein a new assignment of error after the statutory time for perfecting an appeal has expired.
2. Execution--"Special Execution"--Right to Writ. A special execution is one that directs a levy upon some special property. A judgment creditor has no right to a special execution except in the cases expressly allowed by statute. The statutory right of the party in whose favor the writ is issued to elect on what property not exempt from execution he will have the same levied, does not give him a right to a special execution.
3. Appeal and Error--Discretion of Lower Court--Recall of Execution. Where it appears that the district court still retains jurisdiction of the case, and the process of execution is issued therefrom, the court has inherent power to control its own process, and an order made recalling such execution will not be reversed in this court, except where abuse of such discretion is shown.

A. L. Emery, for plaintiff in error.
Cochran & Ellison, for defendant in error.

HUNT, J.

¶1 This is an appeal from the district court of Okmulgee county. The only error presented by the petition in error is that the court erred in recalling an execution issued at the instance of plaintiff in error, one of the defendants in the court below. On September 4, 1920, the First National Bank of Okmulgee filed its petition, containing six causes of action, based upon certain notes and mortgages given by the Bankers Oil Company and held by said bank. The mortgages covered certain oil and gas leases, equipment, machines, etc., and copies were attached to the petition as exhibits. One of the mortgages attached to the petition covered, among other things, a gasoline plant and appurtenances. The Oklahoma Salvage & Supply Company, plaintiff in error, after obtaining permission so to do, entered its appearance in the case as a party defendant, and on October 7, 1920, filed its answer and cross-petition alleging an indebtedness due it by the Bankers Oil Company and claiming a lien upon a part of the property covered by the mortgages sued on by the bank.

¶2 On February 15, 1921, the court rendered judgment in favor of the bank for the foreclosure of its mortgages, granting to the Oklahoma Salvage & Supply Company a money judgment, but expressly denying the right of the latter to any lien upon the property. On August 16, 1921, a special execution and order of sale was issued decreeing the sale of certain property under the foreclosure decree. Notice of sale was duly given and the property sold to the plaintiff bank for $ 10,000. The sale was had on September 21, 1921, and thereafter the Oklahoma Salvage & Supply Company filed its objections to confirmation, on the ground that one of the attorneys for the bank at the sale stated that the gasoline plant was not included in the sale and that the plant was not being sold. On October 3, 1921, the court confirmed the sale, the order of confirmation expressly stating that the "sale did not, and the order of confirmation does not include or embrace the gasoline plant located on the above-described premises."

¶3 Later, on October 14th, the bank filed an application for a nunc pro tunc order showing that through clerical error the journal entry of judgment failed to include the description of certain property in one of the mortgages made a part of the petition and which had been ordered foreclosed, namely the gasoline plant. The next day the matter was considered by the court and the order nunc pro tunc entered as prayed for, the court stating its own independent recollection warranted the granting of the application. No appeal was taken from this order. Prior to this, on October 4, 1921, the Oklahoma Salvage & Supply Company caused what it termed an alias execution to issue to the sheriff directing him specially to levy upon the gasoline plant, etc. On November 7th, the bank filed motion to recall, vacate, and quash the execution, and on November 8th, the matter was taken up by the court and the execution was ordered recalled, vacated, and set aside. It is from this order this appeal is prosecuted. Counsel in their briefs have joined issue on numerous questions, but the sole matter for determination, as hereinbefore stated, is the correctness of the court's order of November 8, 1921, recalling the so-called alias execution. Counsel for plaintiff in error, however, in their brief make application to amend the petition in error by raising the correctness of the order of October 3, 1921, confirming the sale above mentioned. No order to this effect was entered by this court, and the amendment could not have been permitted after the time for perfecting the appeal had expired. Charles v. Prentice, 88 Okla. 246, 212 P. 585. Considering, then, the sole question presented by the petition in error, to wit, the correctness of the court's order recalling the alias execution, it must be borne in mind that the Oklahoma Salvage & Supply Company had no lien whatsoever upon the gasoline plant, the property specially described in the recalled execution. The company was a mere judgment creditor.

¶4 Section 692, C. O. S. 1921, is as follows:

"Executions are of three kinds:

"First: Against the property of the judgment debtor.

"Second: For the delivery of possession of real or personal property with damages for withholding the same, and costs.

"Third: Executions in special cases."

¶5 The rule uniformly followed under such statutes is stated in 23 Corpus Juris, page 308, from which we quote as follows: