A junior mortgagee, not made a party to a suit to foreclose a prior mortgage, is not affected by the decree therein.10

§ 1328. Surety

"Notwithstanding the recovery of judgment by a creditor against a surety, the latter still occupies the relation of surety." "1

§ 1329. Joint defendants

A personal judgment against two defendants is a joint and several obligation which the plaintiff may enforce against either at his option, 12

§ 1330. Interpretation-Interest

A judgment open to two interpretations should be given that which will make it valid, rather than that which will make it invalid.13

In ascertaining what was determined by a judgment, the inquiry is not limited to the formal judgment, but extends to the pleadings, verdict, or findings.14

10 Horr v. Herrington, 98 P. 443, 22 Okl. 590, 20 L. R. A. (N. S.) 47, 132 Am. St. Rep. 648.

11 Rev. Laws 1910, § 1054.

12 Richardson v. Painter, 102 P. 1099, 80 Kan. 574, 133 Am. St. Rep. 224. 13 Sharp v. McColm, 101 P. 659, 79 Kan. 772.

A recital in the record in ejectment that a judgment on a first trial was vacated for good cause shown on application of the unsuccessful party, on notice, shows, in the absence of anything to the contrary, that the judgment was vacated as a matter of right. Bank of Topeka v. Sadler, 131 P. 585, 89 Kan. 321.

A journal entry reciting that the obligation sued on was contracted for erection of improvements on a home held to show a judgment that the homestead was not exempt under Const. art. 15, § 9, from sale for its payment. Wichita Acetylene Mfg. Co. v. Haughton, 155 P. 1078, 97 Kan. 528.

A money judgment either for $800 or for $694, as the plaintiff might elect, is not an "alternative judgment," which is one that by its terms might be satisfied by doing either of several acts at the election of the party or parties against whom the judgment is rendered and from whom performance is by the judgment required. Henderson v. Arkansas (Okl.) 176 P. 751.

A judgment rendered against "A. A., administrator of the estate of Z. T. A., deceased," is not a personal judgment, but a judgment against him in his of ficial capacity. Collier v. Gannon, 137 P. 1179, 40 Okl. 275.

14 Barnett v. Worrell, 46 Okl. 60, 148 P. 133; Sharp v. McColm, 101 P. 659, 79 Kan. 772.

Where a judgment is so obscure or ambiguous as not to express the final determination of the court with sufficient accuracy, reference may be had to the pleadings and entire record. Reaves v. Turner, 94 P. 543, 20 Okl. 492;

"All judgments of courts of record and justices of the peace shall bear interest from the day on which they are rendered at the rate of six per cent. per annum: Provided, that when a rate of interest is specified in any contract, that rate shall continue until full payment is made, and any judgment rendered on any such contract shall bear the same rate of interest mentioned in the contract, which rate shall be specified in the judgment; but in no case shall such rate exceed the legal contract rate at the date of such obligation." § 1331. Conclusiveness

" 15

A decree is final and conclusive as to all parties unless an appeal is taken or it is set aside or reversed in direct proceedings.16

Hale v. Independent Powder Co., 46 Okl. 135, 148 P. 715; Clay v. Hildebrand, 9 P. 466, 34 Kan. 694.

Decree held sufficient, when considered with recommendations of referee confirmed by the court, to set aside the contract of copartnership attacked in the petition. Kelly v. West, 48 Okl. 274, 149 P. 902.

Though a judgment purports to be against defendants, without naming them, only one is bound if it appears from the context that he only was meant, or from the return that he was the only defendant served, but where the word "defendant" is written in the body of the judgment, it will be construed as referring to and including all defendants named in the caption. Hale v. Independent Powder Co., 46 Okl. 135, 148 P. 715.

Where the record of the court recited that there is due plaintiff from defendants $193.30, with interest, and that wherefore it is ordered and adjudged that plaintiff recover judgment from defendant for the sum of $193.30 and costs, judgment was rendered only for the amount of damages, exclusive of interest. Swisher v. Ellsworth, 71 P. 810, 66 Kan. 783.

15 Rev. Laws 1910, § 1008.

16 Where a decree of distribution construing a will was not appealed from, it was conclusive as to the rights of the parties under the will. Luscomb v. Fintzelberg, 123 P. 247, 162 Cal. 433.

A judgment not appealed from is conclusive, although based on a mistake of law. Dennis v. Kelly (Okl.) 197 P. 442.

An incidental award of alimony for a gross sum payable in three installments, declared to be in full of all claims for alimony or on any other account, is final and conclusive. Bassett v. Waters, 103 Kan. 853, 176 P. 663. Alimony decreed to a wife upon a divorce is as much a debt, until decree is recalled or modified, as any judgment for money is. Stanfield v. Stanfield (Okl.) 168 P. 912.

A discharge in bankruptcy, until set aside or reversed in direct proceedings, is conclusive on all parties, and cannot be collaterally attacked. First Nat. Bank v. Masterson, 116 P. 162, 29 Okl. 76.

On appeal from a judgment of discharge in bankruptcy over the objection that the bankrupt did not keep proper books of account, and purposely mutilated the same and refused to account for all his property, where on the hearing for discharge 30 witnesses were examined, and the question is one

The judgment and proceedings in an attachment upon the property of a nonresident who is served by publication are conclusive upon the parties and their privies, so far as the attached property is concerned which is seized and sold; the action after publication and service proceeding as one in rem.17

Where one of the defendants appears personally and makes application to set aside a judgment in a cause in which notice was served by publication, such appearance does not have the effect of changing the original judgment in rem into a personal judgment.18 When a demurrer is overruled, and the defendant elects to stand upon and abide by his demurrer, the submission of the case is a final submission, and the judgment thereupon is final.10

DIVISION II.-ENFORCEMENT

§ 1332. Judgments before death

"When any judgment has been rendered for or against the testator or intestate in his lifetime, no execution shall issue thereon after his death, except:

"First. In case of the death of the judgment creditor, upon the application of his executor or administrator, or successor in inter

ests.

"Second. In case of the death of the judgment debtor, if the judgment be for the, recovery of real or personal property, or the enforcement of a lien thereon.

"A judgment against the decedent for the recovery of money, must be presented to the executor or administrator, like any other claim. If the execution is actually levied upon any property of the decedent before his death the same may be sold for the satisfaction

exclusively of fact, and the witnesses appeared personally before the referee, and the referee recommends the discharge and the evidence is conflicting, the judgment of the trial court will not be disturbed. In re Sullivan, 78 P. 85, 14 Okl. 400.

A judgment of the Supreme Court rendered under Act April 17, 1908 (Laws 1907-08, c. 31, art. 4) §§ 16, 17, wherein the county seat, under an election to permanently locate the same in Delaware county, was determined to be at the place of Jay is self-executing. Fluke v. Canton, 123 P. 1049, 31 Okl. 718. 17 National Bank of St. Joseph v. Peters, 32 P. 637, 51 Kan. 62.

18 Smith v. Kreager, 51 P. 813, 6 Kan. App. 271.

19 Potter v. Hall, 65 P. 841, 11 Okl. 173, judgment reversed 23 S. Ct. 545, 189 U. S. 292, 47 L. Ed. 817.

thereof, and the officer making the sale must account to the executor or administrator for any surplus in his hands." 20

§ 1333. Guaranty companies

If any surety company doing business under the provisions of article 10, c. 15, Rev. Laws 1910, "shall neglect or refuse to pay any final judgment or decree rendered against it upon any such recognizance, stipulation, bond or undertaking made or guaranteed by it" under the provisions of said article, "from which no appeal, writ of error or supersedeas has been taken for sixty days after the rendition of such judgment or decree, it shall forfeit all right to do business" under said article.21

§ 1334. Conveyance ordered-Form of order

"When a judgment shall be rendered for a conveyance, release or acquittance, in any court of this state, and the party against whom the judgment shall be rendered does not comply therewith by the time appointed, such judgment shall have the same operation and effect, and be as available, as if the conveyance, release or acquittance had been executed conformably to such judgment; or the court may order such conveyance, release or acquittance to be executed in the first instance by the sheriff; and such conveyance, release or acquittance, so executed, shall have the same effect as if executed by the party against whom the judgment was rendered."

19 22

Such conveyance need be executed by the party against whom judgment is rendered only upon the terms and conditions as ordered by the court.2

23

20 Rev. Laws 1910, § 6351. 21 Rev. Laws 1910, § 1349.

22 Rev. Laws 1910, § 5129.

23 A husband, who is adjudged to execute a conveyance on the request of the wife, is not compelled to execute such instrument until so requested, and a person who makes request for her should state by whose authority he acts, if the husband asks for such information. Butler v. Butler, 82 Kan. 130, 107 P. 540.

(1305)

ORDER THAT SHERIFF EXECUTE CONVEYANCE UPON FAILURE OF DEFENDANT TO CONVEY AFTER JUDGMENT

(Caption.)

This cause coming on to be heard on this

day of

19, on the application of the plaintiff, A. B., for an order of court requiring the sheriff of county, Oklahoma, to make, execute and deliver to plaintiff a good and sufficient deed conveying to plaintiff the following described real estate: (Describe same), said plaintiff appearing by his attorney, X. Y.; and it appearing to the court that by the order and judgment of this court made and entered herein on the day of -, 19, the above named defendant, C. D., was ordered to convey said premises to the plaintiff by good and sufficient deed within

days from the date of said judgment, and it further appearing that said defendant has failed and refused to comply with said order for more than days, and that said order and judgment has not been superseded, and the court being fully advised in the premises;

It is ordered, adjudged and decreed by the court that the sheriff of county, Oklahoma, be, and he is hereby commanded to make, execute and deliver to said plaintiff a good and sufficient warranty deed for said defendant, conveying to plaintiff said above described property; and it is further ordered that said deed of conveyance, when so executed, shall have the same effect as if executed by said defendant in his own proper person.

§ 1335. Alimony

, Judge.

An award of alimony, declared to be in full of all claims, is enforceable in the same manner as an ordinary judgment for debt." Pending an appeal by the defendant from a decree granting divorce and alimony, the plaintiff should apply to the trial court for enforcement of the allowance of temporary alimony.25

Under the terms of the original judgment and decree of the trial court, absence from the jurisdiction of the wife to whom alimony had been awarded on a divorce, did not excuse the husband from

24 Bassett v. Waters, 103 Kan. 853, 176 P. 663.

25 Where plaintiff wife was granted divorce and alimony and husband appealed, plaintiff, as to enforcement of allowance for alimony should seek redress in trial court. Kelly v. Kelly, 105 Kan. 72, 181 P. 561.