NOLAN v. SCHAETZEL

NOLAN v. SCHAETZEL
1930 OK 387
292 P. 353
145 Okla. 231
Case Number: 19554
Decided: 09/09/1930
Supreme Court of Oklahoma

NOLAN
v.
SCHAETZEL et al.

Syllabus

¶0 1. Appeal and Error--Waiver of Assignments of Error by Failure to Brief.
Assignments of error which are not briefed by appellant and supported by argument or citation of authorities are waived.
2. Process--Sufficiency of Affidavit for Service by Publication Showing Defendant Is Single Man and Eludes Process Server.
Affidavit for service by publication against a resident defendant which recites diligence of effort to make service of summons on him, and, in addition, states: "The said defendant is a single man and has no family, and he eludes the said sheriff and conceals himself so that said summons cannot be served upon him," and "the said sheriff was unable to serve the same for the reason that said defendant so concealed himself that said summons could not be served upon him," and "he concealed himself and secreted himself so that said sheriff could not serve said summons," satisfies the requirements of section 250, C. O. S. 1921.
3. Appearance--General Appearance Waiving Defects in Service of Summons--Motion Raising Nonjurisdictional Questions.
Where a motion is made in which questions are raised which go to the jurisdiction of the court over the parties, and in which questions are also raised which cannot be raised by special appearance, but can only be heard upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment.
4. Appeal and Error--Presumptions of Regularity in Rendition of Judgment Foreclosing Mortgage.
In the absence of any showing in the record to the contrary, the Supreme Court will presume that the trial court followed the law and did not render the judgment of foreclosure until proof was made that the mortgage tax imposed by chapter 246, Session Laws of 1913, had been paid.
5. Appeal and Error--Necessity for Objections Below--Error in Amount of Recovery.
An error in the assessment of the amount of recovery, where the action is upon a contract, will not be reviewed by this court where it was not brought to the attention of the trial court by appellant in his petition to vacate the judgment.
6. Mortgages--Foreclosure--Sale Within Six Months Where Appraisement at Option of Mortgagee.
In a suit to foreclose a mortgage, which provides that appraisement is waived or not waived at the option of the mortgagee, where the plaintiff in his petition asked that the land be sold with appraisement, and the judgment was entered foreclosing the mortgage and ordering the land sold with appraisement, the sale of the land within six months after judgment is not inhibited by section 704, C. O. S. 1921.
7. Appeal and Error--Appeal by Transcript Without Bill of Exceptions--Scope of Review.
In an appeal by transcript, which contains no bill of exceptions, only those questions of error which appear upon the face of the judgment roll are presentable for determination.
8. Public Lands--Validity of Mortgage or Second Lien Given by Purchaser of School Land Who Had not Paid Full Purchase Price.
Where school land is sold to a person who has not paid full purchase price thereof, there is no inhibition against the purchaser giving a mortgage, a second lien, thereon, and the holder thereof may foreclose his lien subject to the lien held by the Commissioners of the Land Office.

Commissioners' Opinion, Division No. 2.

Error from District Court, Grant County; James B. Cullison, Judge.

Action by Jennie L. Henrie for judgment on a note and to foreclose a mortgage securing the same, against Thomas Nolan, a resident of Grant county. Service was had by publication and default judgment taken. The judgment was assigned to William Schaetzel, who caused order of sale to issue thereon. Thomas Nolan filed objection to confirmation of sale, and petitioned to vacate the judgment. The court refused to vacate the judgment, and confirmed the sale. Thomas Nolan appealed to this court. Affirmed.

W. H. C. Taylor and Johnson & Johnson, for plaintiff in error.
Drennan & Drennan and Sam P. Ridings, for defendant in error.

EAGLETON, C.

¶1 The plaintiff in error appealed on a transcript. In his petition in error he recites 13 assignments of error. Most of these assignments have been waived by his failure to set forth in his brief, as required by rule 26 of this court, argument or citation of authorities of said assignments in error. Brigman v. Cheney, 27 Okla. 510, 112 P. 993; Harrelson v. Brown, 131 Okla. 267, 268 P. 731.

¶2 He briefs the appeal under seven propositions which we will consider separately. Some of the questions are not properly before this court, but we will dispose of each of them.

¶3 He first contends that the affidavit for service by publication does not allege facts sufficient upon which to obtain service by publication upon him, a resident of Grant county, Okla., in which county the cause was pending. With this we cannot agree. The affidavit for service by publication recites diligent effort made to serve the defendant, and, in addition thereto, "the said defendant is a single man and has no family, and he eludes the said sheriff and conceals himself so that said summons cannot be served upon him," and "the said sheriff was unable to serve the same for the reason that said defendant so concealed himself that said summons could not be served upon him," and again, "he concealed himself and secreted himself so that the said sheriff could not serve said summons." These averments in the affidavit for service by publication are sufficient to meet the requirements of section 250, C. O. S. 1921, providing for service of summons by publication on a resident defendant. This section with reference to this situation reads:

"* * * In all actions where the defendant, being a resident of this state, has departed therefrom, or from the county of his residence with intent to delay or defraud his creditors, or to avoid the service of summons or keeps himself concealed therein with like intent. * * *"

¶4 Even though this complaint were good, it has been waived by plaintiff in error. After judgment in the cause, he appeared and attacked the judgment, and as ground therefor, in addition to the claim that the service on him was faulty by reason of the insufficient affidavit to obtain service by publication, asserted that the appraisal made under the order of sale issued on the judgment was faulty, and asked the court to stay proceedings under the order of sale pending the trial on his petition to vacate the judgment. The court denied him this relief. By attacking this judgment in this manner, he raised questions which were nonjurisdictional, which are not congruous with his claim that the court has no jurisdiction over him in the action, and thus made a general appearance in the cause and cured the defect, if any, which inhered in the judgment because of the alleged irregularity of the service had upon him. Bristow v. Scott, 124 Okla. 89, 254 P. 16; Franse v. Armbuster (Neb.) 28 Neb. 467, 44 N.W. 481, 26 A. S. R. 345.

¶5 Under proposition No. 2, he presents the assignment of error that the judgment was void for the reason that the alleged mortgage foreclosed, as shown by the petition, did not affirmatively disclose that the mortgage tax had been paid thereon as required by chapter 246, Session Laws 1913. This complaint is not well taken for, as has been said in Neil v. Union Nat. Bank, 72 Okla. 116, 178 P. 659:

"In the absence of any showing in the record to the contrary, the Supreme Court will presume that the trial court followed the law and did not render the judgment of foreclosure until proof was made that the mortgage tax imposed by chapter 246, Session Laws of 1913, had been paid."

¶6 Under proposition No. 3, it is stated, as a proposition of law, that the court was without jurisdiction to render judgment for more than was due. Without questioning his proposition of law, we do not find any such facts disclosed by the judgment roll. Neither was this question raised in his petition to vacate the judgment in the trial court, so it could not be considered here.

¶7 Under proposition No. 4, he presents the question that appraisement was waived in the mortgage, that sale of the property under the mortgage foreclosure judgment was had in less than six months, hence the sale was void. Even were this properly presented under the transcript which we have before us, and this we do not pass upon, this assignment of error would not be well taken, for the mortgage is clear on its face that appraisement was waived or not waived at the option of the second party, the mortgagee, and the mortgagee in his petition for foreclosure elected to have said land sold with appraisement. This sale within six months after judgment was not inhibited by section 704, C. O. S. 1921.

¶8 Under proposition No. 5, it is contended that the court committed error in allowing the judgment for attorneys' fees, asserting that the provision in the note sued on was so inserted by deceit and fraud. This is not such a question as can be presented without evidence. A bill of exceptions incorporating the evidence is not included in the transcript, so we do not have that question before us here.

¶9 Under the sixth proposition, it is contended that the appraisement of the land is void and that the land was sold for less than two-thirds of the appraised price. These questions were not raised in the petition to vacate the judgment in the trial court, neither are they submitted by a transcript, hence they cannot be considered by us.

¶10 As a final proposition, it is contended that the land in this cause was purchased by plaintiff in error from the Commissioners of the Land Office of the state of Oklahoma, that there was an unpaid balance due thereon to said Commissioners, hence this land was not subject to the instant mortgage, which was a second lien, and no foreclosure thereof could be had. No authority is cited by plaintiff in error sustaining this contention, and we know of none. Neither do we know of any logical reason which would sustain such a position. The plaintiff in error had sufficient title in these premises to obtain a substantial loan thereon from the judgment creditor in this case, and there being no inhibition against such a mortgage in the laws of this state, or in public morals, we perceive no reason why a person should be permitted to come into a court of equity and resist the enforcement of a right which he, by contract for a valuable consideration, gave to another. The interest which plaintiff in error had in this land was subject to the mortgage lien, and the mortgage is properly foreclosable in the courts of this state.

¶11 We find no error in this record. The judgment is affirmed.