Federal Deposit Insurance Corp. v. Tidwell

OPALA, Chief Justice,

concurring in result.

Although the court is correct in dismissing this appeal for want of an appealable decision, the precise legal point upon which I would focus is whether the adjudication sought to be reviewed constitutes a “judgment” within the meaning of 12 O.S.1981 § 681.1 I would unequivocally answer in the negative and hold that the trial court’s ruling in this foreclosure action is but an interlocutory summary adjudication anterior to judgment, from which no appeal lies. I concur in prohibiting nisi prius execution process. When the dismissal of an appeal leaves a case in procedural limbo, this court’s writ power — in aid of its superintending authority conferred by Art. 7 § 4, Okl. Const.,2 — may be exercised to *1343place the case on the proper procedural track.3

Appellants — defendants in a mortgage foreclosure action — seek review of a so-called “summary judgment” that expressly reserves for future determination their personal liability for the underlying obligation. The trial court did find, among other things, that the overdue notes in suit are secured by mortgages and that the properties should be sold. Without doubt these findings do not constitute a judgment,4 There can be no judgment when the court disposes of but a portion of the claim and leaves unresolved any other issues joined by the pleadings.5

This appeal should be dismissed for only one reason. The trial court’s ruling fails to resolve all the issues in the controversy and hence falls short of a judgment.6 Unless the decision before us qualifies as an interlocutory order appealable by right or is certified for immediate review7 — and this decision clearly does not — the adjudication is but a nonappealable prejudgment order.8

This appeal’s dismissal should have no impact upon the trial court’s order directing that the property be sold. Inasmuch as execution and sale proceedings cannot precede the time when judgment is entered, I would, as the court does today, invoke sua sponte our superintending control, conferred upon this court by Art. 7 § 4, Okl. *1344Const.,9 and prohibit execution process from issuing.10

. The terms of 12 O.S.1981 § 681 are:

"A judgment is the final determination of the rights of the parties in an action." (Emphasis added.)

. The pertinent terms of Art. 7 § 4, Okl. Const., are:

"* * * The original jurisdiction of the Supreme Court shall extend to a general superin*1343tending control over all inferior courts and all Agencies, Commissions and Boards created by law. The Supreme Court... shall have power to issue, hear and determine writs of habeas corpus, mandamus, quo warranto, certiorari, prohibition and such other remedial writs as may be provided by law and may exercise such other and further jurisdiction as may be conferred by statute. * * *” (Emphasis added.)

. See Continental Oil Co. v. Allen, Okl., 640 P.2d 1358, 1360 (1982); Sheegog v. Incorporated Town of Lindsay, 127 Okl. 39, 259 P. 551 (1927) (the court’s syllabus).

. See King v. Finnell, Okl., 603 P.2d 754, 756 (1979), where in a mortgage foreclosure action the order tendered for review fell short of a judgment because only one of several issues in the claim had been resolved. The trial court there had found the defendant liable but left the quantum of liability undetermined.

. 12 O.S.1981 § 681, supra note 1; Reams v. Tulsa Cable Television, Inc., Okl., 604 P.2d 373, 374 (1979); Oklahomans For Life, Inc. v. State Fair of Okl, Okl., 634 P.2d 704, 706 (1981); Hurley v. Hurley, 191 Okl. 194, 127 P.2d 147, 148 (1942) (the court’s syllabus ¶ 3); Foreman v. Riley, 88 Okl. 75, 211 P. 495 (1923) (the court’s syllabus ¶ 4); Wells v. Shriver, 81 Okl. 108, 197 P. 460 (1921) (the court’s syllabus ¶2).

. See Teel v. Public Service Co. of Oklahoma, Okl., 767 P.2d 391, 395 (1989); Eason Oil Co. v. Howard Engineering, Okl., 755 P.2d 669, 672 (1988); Dennis v. Lathrop, 204 Okl. 684, 233 P.2d 969, 970 (1951); Fowler v. City of Seminole, 196 Okl. 167, 163 P.2d 526 (1945); Hutchison v. Wilson, 136 Okl. 67, 276 P. 198, 200 (1929).

. See Reams v. Tulsa Cable Television, Inc., supra note 5 at 374.

.In an unpublished order (reproduced infra) this court dismissed an appeal, holding that in a foreclosure action a ruling which does not determine the maker’s liability on the note fails to resolve all the issues in the controversy and is hence nonappealable. First Interstate Bank of California v. Morford (No. 68,014, February 23, 1987):

“ORDER
"Appellee’s motion to dismiss is granted, and this appeal is ordered dismissed as having been prematurely filed from an order which grants to the appellee one of the remedies sought below, but which leaves the remainder of appellee's claim pending. Such order neither amounts to a final determination of the rights of the parties, fully resolving all issues in controversy, nor is it an interlocutory order specifically made appealable by statute. 12 O.S.1981, §§ 953, 993; Rules of Civil Appellate Procedure, Rule 1.11(b), and Rule 1.60.
"Nothing herein shall preclude the bringing of a subsequent appeal, addressing the issues involved herein, upon the entry of a final, appealable order.
“DONE BY ORDER OF THE SUPREME COURT IN CONFERENCE THIS 23RD DAY OF FEBRUARY, 1987.
/s/ John B. Doolin CHIEF JUSTICE
"DOOLIN, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER, KAUGER, JJ„ concur.
"OPALA, J., concur[s] in result — I would add that our dismissal is without prejudice to appellant’s plea for an order arresting execution and sale proceedings in the trial court until the issue of his personal liability has been resolved.” (Emphasis in original.)

. For the pertinent terms of Art. 7 § 4, Okl. Const., see supra note 2.

See the authorities cited supra note 3.