Herron Trust v. Swarts , 1961 Okla. LEXIS 528 ( 1961 )

BLACKBIRD, Vice Chief Justice

(dissenting) .

I cannot concur in the Majority opinion. In my opinion it not only misconstrues Title 12 O.S.1951 § 1512, as amended in 1953 (Chap. 28, sec. 1, S.L.1953, p. 60), but I verily believe it also misconstrues our opinions in Clement v. Ferguson, Okl., 287 P.2d 207, and Hargis v. Hargis, 181 Okl. 377, 73 P.2d 1129, quoted therein.

In the Clement case, we held that in a situation like the one there presented, where the election to take, previously filed by one of the defendants (within the 10-day period) had been withdrawn and [287 P.2d 213] “ * * * there was then on file only one election to take * * * ”, it was within the trial judge’s discretion, under Section 1512, supra, whether he would direct the sheriff to make a deed to the party that had filed that sole remaining election. This is “a far cry” from holding, as the Majority does, in effect, that such judge must give consideration to a party who has not filed such an election within the statutory 10-day period. I do not believe the cited case supports the Majority opinion even by inference.

The 1953 amendment of section 1512, supra, says such elections “shall (as distinguished from “may”) be filed within ten (10) days * * *” of the Commissioner’s report (as to the usual interpretation of “shall” see State ex rel. Ogden v. Hunt, Okl., 286 P.2d 1088, 1090); and the Majority opinion recognizes that the pleading entitled “Objection And Motion Of Herron Trust” was not filed within said period, or any extension thereof. This is the same pleading that said opinion later refers to as “the objection to the execution of a deed in favor of Lee Swarts and motion of Her-ron Trust for a sale of the land and timber at a public sale”, which the opinion considers “in effect an exception to the report of the Commissioners.” If we are to hold that such a pleading, so interpreted by this Court, and filed after the statutory time limit, must be treated as a timely election to take, so as to invoke the mandate of Title 12 O.S.1951 § 1513, that “* * * the court shall make an order * * * ” directing the property’s sale “ * * * in the same manner as in sales * * * on execution * * * ”, then we are not only inviting litigants to circumvent the “10-day amendment”, but we are indirectly abrogating or emasculating it. In other words, we are “amending” the Amendment by so-called “judicial legislation” in a manner inconsistent, rather than “not inconsistent with tire provisions of this article” — to use an expression quoted by the Majority from Hargis v. Hargis, supra. Under the majority opinion, if one of the parties neglects to file his election within the mandatory period, all he will need to do, in an effort to defeat the court’s power to order a sale to the party who has filed his election within the statutory time, is to file, at any time before the Commissioner’s report is approved, some kind of a pleading that this court may interpret as an exception, or objection, to the Commissioner’s report. In some counties where a district judge is available only periodically, this may give such party a long time within which to delay the proceedings — a result which the mandatory “10-day amendment” clearly and unmistakably prohibits.

But, assuming that it was within the trial court’s discretion to consider Herron’s pleaded “objection” or “exception”, supra— as far as the transcript before us shows — he exercised that discretion, and “denied” it on its merits. On what basis are we to say, without a casemade, or complete record, of all that occurred at the hearings on the matter, that said court abused his discretion? Suppose that such a record would show conclusively that Herron could not, or would not, have qualified as a responsible or bona fide prospective purchaser of the property? Is it to be given another opportunity to purchase the property, or delay its sale, when it has never filed a timely election? If so, the statute (sec. 1512, as amended, supra) must be ignored. I think the trial court should be affirmed for the simple or elementary reason that it followed the statate. I therefore respectfully dissent. I am authorized to state that IRWUST, J., concurs in the views herein expressed.