I respectfully dissent to the majority opinion of the court.
On the 5th day of December, 1929, a decree of divorce was granted by the district court of Stephens county in the case of Lovie Lee Doak against Dudley N. Doak. The property rights between the plaintiff and defendant were settled. Lovie Lee Doak was given custody of the minor children of the union, and in addition the court entered an order as follows: *Page 511
"It is therefore by the court considered, ordered, adjudged and decreed that the defendant pay the plaintiff or to the court clerk of Stephens county, Oklahoma, for the support and maintenance of said minor children, * * * the sum of $25 each month as long as this order and decree remains in force andeffect or shall not be modified. * * *"
Thereafter the plaintiff caused execution to issue on the above order, and on the 20th day of January, 1938, Dudley N. Doak filed a motion to quash the execution on the ground that the plaintiff did not have a judgment on which execution could legally issue. To this motion to quash, Lovie Lee Doak filed a response wherein she denied the allegations of the motion and set up that the execution was based upon a judgment which had not been modified. No affirmative matter was set up in the response and no pleading was filed which would entitle the plaintiff to affirmative relief.
The hearing on the motion to recall execution was finally heard on the 30th day of March, 1938, the journal entry reciting:
"This cause coming on to be heard upon the defendant's motion to quash execution and the defendant's motion to recall execution and the defendant's motion to enter judgment nune pro tunc. * * *"
The journal entry also recites that on the 11th day of February, 1938, a hearing was had and "the defendant was permitted to withdraw his amended motion to quash execution (styled motion to recall execution) and his motion to enter judgment nunc pro tunc, leaving only his original motion to quash execution pending herein." It will thus be seen that the only matter before the court was the motion to quash execution.
Nevertheless, and without any pleadings justifying any action other than to recall the execution, the court entered a further order to the following effect:
"It is further ordered that upon a praecipe duly filed therefor by plaintiff within the time prescribed by law that the clerk of this court shall issue general execution on the judgment heretofore rendered on the 5th day of December, 1929, for the $25 installment falling due on February 5, 1933, and for a like installment falling due on the 5th day of each month thereafter up to and including the installment falling due on September 5, 1937, together with interest on each installment from the date thereof at the rate of 6% per annum and for all costs of this action unless defendant satisfies said judgment prior to the issuance of such execution."
It will be noted by the above-quoted portions of the journal entry that the court ordered execution on a "judgment" rendered the 5th day of December, 1929, and in addition thereto allowed interest at the rate of 6% per annum on all delinquent payments. I think the majority opinion of the court is erroneous for the following reasons: First, there was no final judgment entered on the 5th day of December, 1929; second, there was no pleading justifying such an order as above set out; third, there was no evidence to determine the amount due, and the defendant was undoubtedly entitled to a hearing on that question.
In the petition in error filed herein Dudley N. Doak raises the question that there was no judgment on which execution could issue, and especially raises the question that the court erred in directing the court clerk to issue execution for some amount or amounts of money without any showing that the plaintiff was entitled thereto. This specification of error directly attacks the action of the court in attempting to fix or find the amounts actually due under the order of December 5, 1929.
In order to determine whether the action of the trial court was correct, we first must determine whether or not there was actually a judgment rendered on the 5th day of December, 1929. A judgment is defined by section 416, O. S. 1931, 12 Okla. St. Ann. § 681, as follows:
"A judgment is the final determination of the rights of the parties in an action."
It is unnecessary to quote many cases under this section of the statute. It is *Page 512 sufficient to cite Harriss v. Parks, 77 Okla. 197, 187 P. 470, wherein we held:
"It is essential to the creation of a judgment that there shall be a judgment which is final and not merely interlocutory, capable of collection by execution against the debtor's property, rendered by a lawfully and validly constituted court, and being a valid and subsisting judgment,for the payment of a definite and certain sum of money."
Does the order of December 5, 1929, meet these requirements? I think not. First: The defendant was directed to pay "as long as this order and decree remains in force and effect or shall not be modified." This shows that the order was merely interlocutory. Second: The judgment must be capable of collection by execution against the debtor's property. The order fails in this requirement, in that it was not final and for the further reason that it was not for the payment of a definite and certain sum of money. Some further action of the court would be necessary before the order could ripen into a definite judgment. In other words, there would have to be a finding of the amount remaining due under the order and a judgment rendered for a certain, definite, and specific sum.
The majority opinion is predicated upon the theory that the action of the court on the 30th day of March, 1938, was such a hearing that the court was justified in entering a specific judgment and directing execution.
We should bear in mind, however, that the only matter before the court was the motion to quash execution. There were no pleadings on file requesting a judgment on the unpaid amount due under the order of December 5, 1929.
The journal entry does not show that any evidence was taken as to the amounts due under the original order. It shows the opposite. So, even though we concede that there might have been a judgment rendered at this time, this purported judgment would still lack the essentials of a valid judgment for the reasons that (a) there were no pleadings to support a judgment; (b) there was no judgment rendered, but merely an order directing that execution issue on the order of December 5, 1929; (c) again, there was no definite amount fixed, the amount was left to be calculated either by the court clerk or by the attorneys for the plaintiff. In other words, the court did not attempt to render judgment on the 30th day of March, 1938, but merely to award an execution on an order entered on the 5th day of December, 1929.
Dudley N. Doak was in court for one purpose only, and that was for the purpose of attempting to have execution quashed. The journal entry of judgment recites that the matter was heard on defendant's motion to quash execution. The record affirmatively discloses that nothing was before the court, other than the motion to quash by Dudley N. Doak, and the response to motion to quash by Lovie Lee Doak.
There were no pleadings which raised any question as to the amount remaining due on the order of December 5, 1929, and there was no evidence on that question. Consequently the court had no power to fix the amount due. In the case of Rogers, County Treasurer, v. Bass Harbour, 47 Okla. 786, 150 P. 706, we held:
"A judgment, which is entirely outside of any issue made by the pleadings or the evidence in the case, is a nullity."
To the same effect is LeClair v. Calls Him, 106 Okla. 247,233 P. 1087.
An inspection of the record in this case discloses that the purported orders do not amount to the dignity of judgments, and, particularly, the purported judgment of March 30, 1938, is void upon its face. The case last above cited quotes with approval Rogers, County Treasurer, v. Bass Harbour, supra, and also quotes from Pettis v. Johnston, 78 Okla. 277,190 P. 681, as follows:
"A judgment which is void upon its face and requires only an inspection of the judgment roll to demonstrate its want of validity is a 'dead limb upon the judicial tree which may be lopped *Page 513 off at any time"; it can bear no fruit to the plaintiff, but is a constant menace to the defendant, and may be vacated by the court rendering it 'at any time on motion of a party or any person affected thereby.' * * *"
Proper procedure in the lower court would have been the filing of an application to ascertain the amount due under the order of December 5, 1929, the service of notice on the defendant and the rendition of judgment against the defendant in case the facts warranted the rendition of a judgment. This was not done.
The judgment should be reversed, with directions to the trial court to quash the purported execution issued therein.