Johnson v. Noble , 179 Okla. 256 ( 1936 )

It is urged by counsel for plaintiff on rehearing that we have overlooked and failed to pass upon a question which is controlling herein. Plaintiff's proposition is that the judgment in favor of the Oil Well Supply Company against Johnson was barred by limitation and was dormant. We will briefly amplify our views regarding this proposition. The judgment was rendered January 12, 1924, and was presented and claimed as an offset on November 10, 1930. There is involved the validity of an execution which was issued November 24, 1925, Plaintiff contends that the execution was invalid, and therefore the judgment was dormant when it was claimed as an offset. The name of the court clerk and his deputy was written on the execution with a typewriter. It was stamped with the seal of the court and bears the sheriff's return dated November 25, 1925. It appears that after the judgment was assigned to Chas. F. Noble he made application for an order nunc pro tunc directing the clerk and his deputy to sign the execution with pen and ink. On November 17, 1930, the application was granted, the order nunc pro tunc was made, and the execution signed by the clerk.

A proposition quite similar to that presented here was before the Supreme Court of Kansas in the case of Taylor v. Buck,61 Kan. 694, 60 P. 736, wherein the court held:

"An execution for the sale of property, authenticated with the seal of the court, but lacking the signature of the clerk issuing it, may be amended after its return by order of court upon the clerk to sign it, if necessary, to validate proceedings under it."

We deem this case to be controlling of the issue presented, and conclude that the execution issued November 24, 1925, was amendable by nune pro tunc order and that the contention of plaintiff is without merit.

The petition for rehearing is denied.

BAYLESS, V. C. J., and RILEY, BUSBY, WELCH, PHELPS, CORN, GIBSON, and HURST, JJ., concur.