Illinois Life Insurance Co. v. Herrin , 163 Okla. 196 ( 1933 )

PER CURIAM.

Tie district court of Cierokee county, Okla., rendered a judgment in favor of tie plaintiff below and against tie defendants, decreeing a foreclosure of a mortgage without appraisement, and ordering the lands sold after tie expiration of the six-month period provided by law.

On tie 6th day of June, 1932, the sheriff of Cherokee county, Okla., made his return of sale of property sold for $1,500, and on June 13, 1932, plaintiff filed his motion for confirmation of said sale, and on June 15, 1932, the defendants filed a protest thereto.

On the '23rd day of June, 1932, an order vacating the judgment was entered by the court, and from this proceeding on November -9, 1932, plaintiff in error prosecutes his appeal.

Brief was filed by the plaintiff in error on December 19, 1932, and on April 19, 1933, motion for judgment for failure to brief by the defendants in error was filed.

It appears that the only reason for the order made by the court below was found in an affidavit of the defendants below that they had a claim against the receivers of the Ward-Way Transportation Company that they expected to pay the judgment with.

There is an affidavit herein uneontested to the effect that that claim had been paid to the defendants, and under the consistent ruling of this court, this case is reversed and remanded, with directions to the court to vacate the order heretofore made and ta enter its order confirming the sale in accordance with the prayer of the petition in error.