MUTZ v. SANTILLANES

MUTZ v. SANTILLANES
1970 OK 31
465 P.2d 764
Case Number: 43951
Decided: 02/24/1970
Supreme Court of Oklahoma

WINFRED L. MUTZ, PLAINTIFF IN ERROR,
v.
ROBERT LEE SANTILLANES, JR., A MINOR, 12 YEARS OF AGE, BY AND THROUGH HIS MOTHER AND NEXT FRIEND, CAROLYN DALE SANTILLANES, DEFENDANT IN ERROR.

Appeal from the District Court, Tulsa County, Robert G. Green, J.

Ames, Daugherty, Bynum, Black, Ashabranner & Rogers, by William B. Rogers, Oklahoma City, for plaintiff in error.

Sanders & McElroy, by Tom Mason, Tulsa, for defendant in error.

DAVIDSON, Justice.

¶1 This causes comes on for hearing on motion by defendant in error to dismiss the appeal, urging ground that the order appealed from is not a final order within the purview of 12 O.S.Supp. 1968 § 952 .

¶2 Judgment was entered in the trial court on September 30, 1969, in favor of plaintiff and against defendant in the amount of $5000.00. The proceedings before the trial court were adversary but not contested. On the date of judgment there was filed in the action a release and satisfaction of the judgment. Defendant's insurer gave a draft for the amount of the judgment in consideration for the release of judgment. Thereafter a dispute arose concerning whether the judgment is res judicata of claim for medical expense incurred as an incident to the tortious injury and damage sustained by the minor child. The payment of the $5000.00 draft was stopped by defendant's insurer and the judgment is unpaid. Plaintiff below sought and obtained from the trial court an order purporting to vacate the release and satisfaction of judgment. Defendant below thereafter sought to prevail on the trial judge to rescind the order purporting to vacate the release and satisfaction of judgment. The trial court refused, by order, to rescind the former order, and from the order of refusal defendant below brings this appeal.

¶3 The judgment for damages entered September 30, 1969, remains unassailed by appeal on proceeding to vacate. The order for which appellate review is here sought, i.e., the order refusing to rescind an earlier order purporting to vacate a release and satisfaction of judgment is not a final order within the purview of 12 O.S.Supp. 1968 § 952 , and the appeal is dismissed for lack of jurisdiction. Adequate remedy exists for resolution of the dispute in the trial court or on appeal in a proper proceeding.

¶4 The stay order entered herein on January 6, 1970, is vacated. The motion to dismiss is sustained and the appeal dismissed.

¶5 IRWIN, C.J., BERRY, V.C.J., and WILLIAMS, BLACKBIRD, JACKSON, HODGES and LAVENDER, JJ., concur.