Methvin v. Methvin , 191 Okla. 177 ( 1942 )

On the former appeal of this case (In re Methvin's Guardianship, 174 Okla. 75, 49 P.2d 514) we held that the district court of Caddo county never acquired jurisdiction of the case, due to the fact that on the attempted appeal from the county court of Caddo county to the district court the bond required by 58 O. S. 1941 § 725 was not given. We thereupon reversed the judgment of the district court and remanded the case, with directions to that court to dismiss the appeal. That became the law of this case.

The fact that Harjo v. Aubrey, 184 Okla. 344, 87 P.2d 140, has been adopted since the decision in the case of In re Methvin's Guardianship, supra, was promulgated is of no consequence. In Harjo v. Aubrey, supra, it was held merely that by reason of 58 O. S. 1941 § 737, where notice of appeal was given, the district court might be invested with jurisdiction of probate appeals by filing the appeal bond in the district court after the appeal was lodged there, and that the failure to file the bond within ten days in the county court as provided by 58 O. S. 1941 §§ 724, 725, was not fatal to the appeal. In this case no request for permission to file the appeal bond in the district court was ever made, but, on the contrary, the motion to dismiss the appeal because such appeal bond was not given was successfully resisted in the district court. As I understand the decisions, the saving grace accorded to an appellant by 58 O. S. 1941 § 737 does not extend to one who not only fails but refuses to give an appeal bond in either the county or district court.

The majority opinion misconstrues the former opinion in this case (In re Methvin's Guardianship, supra).

There we sustained the motion to dismiss for the reason that "the district court never acquired jurisdiction of the appeal." Contrary to the statement in the majority opinion, we did say, in effect, that there was an absolute failure of jurisdiction and the proceeding in the district court was a nullity.

The proceeding in the district court being a nullity, the judgment of the county court remained in that court undisturbed by the ineffective appeal, and it became final when no effective appeal was taken therefrom. It was then subject to collection by writ of execution out of the county court. 58 O. S. 1941 § 709. It is true that in Price v. Sanditen,170 Okla. 75, 38 P.2d 533, it was said: "The fact that an execution may be issued on a judgment does not by any means determine the finality of such judgment." But that statement contemplates only those judgments that are properly on appeal but are subject to execution for failure of supersedeas or an order of court staying the writ.

The majority opinion cites Aaron v. Morrow, 174 Okla. 452,50 P.2d 674, as authority for its holding that a judgment standing on appeal would not become final until affirmed, and mandate received by the trial court, and would not become dormant until five years thereafter for failure to issue execution. But the rule in the cited case presupposes a valid appeal, an appeal over which the appellate court acquired jurisdiction.

The judgment under consideration was entered in the county court on July 27, 1933. No execution was issued thereon within five years and it became dormant. It was not revived within a year and so was dead and unenforceable when execution was issued thereon on February 6, 1940.

I therefore respectfully dissent.