and be enforced by punishment for contempt of court; an execution may issue upon a judgment, and upon a decree only to enforce an order of sale; a judgment cannot meet all the exigencies of litigation; a decree may do this in so far as it is in the power of the courts to enforce anything. An order is, "a decision made during the progress of a case, either prior to or subsequent to final judgment, settling some point of practice, or some question collateral to the main issue, presented by the pleadings and necessary to be disposed of, before such issue can be passed on by the court, or necessary to be determined in carrying the execution into effect. An order must be in writing before it will carry with it any legal sanction."

Judgments are either final or interlocutory. An order affecting a substantial right in an action, when such order, in effect, determines the action and prevents the judgment, and an order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, is a final order. All further proceedings made during litigation of any case, and before final hearing on its merits, are interlocutory orders.10

11

Judgments are not self-executory. They require some ministerial act for their execution. The judgment must state the amount or it will be void.12

Sec. 85. The judgment must be confined to the issues.

The examiner of title to real estate sold under a judicial decree, and the practitioner who is about to sell real estate by judicial proceedings, must look carefully to the pleadings in the case under consideration. He must be sure that the petition, if filed under the statute for sale, states a cause of action. For a petition failing to state any statutory require

8 Loring v. Illesey, 1 Cal. 27; Black on Judgments, Sec. 1.

9 Winton v. Cornish, 5 Ohio, 477. 10 Kinkead's Practice, Sec. 945; Freeman on Judgments, Sec. 29.

11 Needles v. Frost, 2 Okla. 19, 35 Pac. 74.

12 Board v. Moon, 8 Okla. 205, 57 Pac. 161.

ment, or authority of the court, will avail nothing toward giving the purchaser title. Again, the court can pass on the issues only which are raised by the pleadings; for, should the court go outside of the issues in the case and determine some question not raised by them, the decision will carry with it no power for its enforcement. Even a judgment of a court upon a subject of litigation within its jurisdiction, but not brought before it by any statement or claim of the parties, is a void judgment and may be collaterally impeached.13 Jurisdiction is the right to adjudicate concerning the subject-matter of a given case. To constitute this there are three essentials:

(a) The court must have cognizance of the class of cases to which the one adjudicated belongs.

(b) The proper parties must be before it.

(c) The point decided must be in substance and effect within the issue.

That a court cannot go outside of its appointed sphere, and that its action is void with respect to persons who are strangers to its proceedings, are propositions established by the authorities.14

The issues must state a cause of action and the judgment cannot go outside of the issues made up by the pleadings, and undertake to decide matters not brought into the case, but this rule is not so strict as to require the petition, or cross-petition, as the case may be, to be so perfect in form and substance as to withstand a demurrer interposed against it.15

13 Spoors v. Coen, 44 O. S. 497; Porterfield v. Bulter, 47 Miss. 156, 12 Am. Rep. 329; Armstrong v. Bartin, 42 Miss. 506; Still V. Palmer, 41 Miss. 89; Black on Judgments, Sec. 184; Freeman on Judgments, Sec. 135a.

14 By the court in Monday v. Vail, 33 N. J. L. 418; Strobe v.

Downer, 13 Wis. 11; Black on Judgments, Sec. 184; Koelsch v. Mixer, 52 O. S. 207; Southward v. Jameson, 66 O. S. 311.

15 Kinkead's Practice, Sec. 807; Buchanan v. Roy, 2 O. S. 253; Shawkin v. City, 16 O. S. 1.

Sec. 86. The judgment must conform to the verdict.

When a trial by a jury has been had, judgment must be entered by the clerk in conformity to the verdict, unless it is special, or the court order the case to be reserved for future argument or consideration.16

While it is the usual practice for the attorneys to prepare and approve the judgments of the court, and while it is the practice usually, for the judge to sign the judgments and decrees of the court, yet these are only for the assistance of the clerk in preparing his entries for the court's journal; and in a case where the clerk accepts and records a judgment of a court prepared by the attorney for one side only, and which has not been approved by opposing counsel, or signed by the judge, still such entry on the journal, is the judgment and decree of the court. It has been held that it is the duty of counsel to make timely examination of the journals of the court and see that the records correctly recite the proceedings, and, if they have objection, to present same to the court by proper motion, and have the records corrected or have omissions supplied.1

16 Snyder, 5,931; Wilson, 4,598; Kansas, 4,854 (1901), identical; Nebraska, 1,428 (1907), identical. 17 Boynton v. Crockett, 12 Okla. 57, 69 Pac. 869. Where the verdict of the jury is proper, and the judgment is irregular, the court will modify the judgment to conform to the verdict and affirm the case. Morrison v. Knight, 7 Okla. 419, 54 Pac. 656. Where the verdict of the jury is one that can properly be returned under the pleadings, it was not error for the court to render judgment thereon, in the absence of a motion for judgment upon the special finding of facts returned by the jury. Carter v. Missouri, 6 Okla. 11, 41 Pac. 356; Smith v. Eagle, 25 Okla. 408, 108

Pac. 626; Atchison v. Cogswell, 23 Okla. 181, 99 Pac. 923. It was held in a case tried by a jury, where it was clearly apparent that the prevailing party was entitled to interest upon the amount found in the verdict, and it was unquestionably clear that the jury allowed no interest, or where the court reserved the question of the allowance of interest until after verdict, and it was clearly ascertainable from the verdict or uncontroverted facts the date from which and to which interest should be allowed, and the rate is fixed, that the court could make the computation and add the interest so found to the sum found in the verdict and render judgment for the aggregate amount. St. Louis

Sec. 87. Judgments without jurisdiction of the parties or the subject-matter are void.

In the examination of title to real estate sold under a judicial decree, one of the most important inquiries is, has everyone who had an interest in the property at the time suit was begun been brought into the case, and, if so, did the court make the proper orders necessary to divest him of his title thereto? It is elementary that everyone must have his day in court. The court has no power to pass on anyone's property rights without giving him a chance to be heard.18

Any order made as to the rights of anyone as to the real estate sought to be sold by the court, though made as to a party defendant who has not been served with summons, or who has not entered his appearance by some of the methods pointed out by law, is void, as to such party, and he can. assert his rights at any time and in any manner, unless barred by limitation of time. Counsel conducting any proceeding in which real estate is sold should use the utmost diligence in searching the records of the title of real estate sought to be sold, in order to secure the names of every lienholder, whether by mortgage, judgment, mechanic's lien, vendor's lien, attorney's lien, attachment lien, foreign execution lien and the interest of anyone in the title thereto, and every such person holding such claim, lien or interest in the title thereto, should be made a party defendant and required to set forth such claim, lien or interest. The petition should ask that they do this upon penalty of having their lien or interest in the real estate forever barred by order of court.

v. Oliver, 17 Okla. 419, 87 Pac. 423. A court may stay a judgment until motion for new trial is heard. Church v. Gooden, 22 Kan. 227; Barge v. Haslem, 91 N. W. (Neb.) 528. It is the duty of the clerk to enter judgment on the journal. Selders v. Boyd, 5 Kan. App. 451, 49 Pac. 320. Where the verdict is for more than the amount alleged,

it is error to enter judgment for such amount in the journal. Davis v. Hill, 97 N. W. (Neb.) 1,023. Objection to the form of the verdict should be made at the itme of its rendition. Parsons v. Gadeka, 95 N. W. (Neb.) 850.

18 Trimble v. Longworth, 13 O. S.

438.

If the lien or interest of any such claimant be invalid, the petition in such case, should so allege, else such interest, in case of default to answer, will be a cloud on the title and will frighten away purchasers at such sale.1o

After such persons who hold any interest of record, or not of record, in said real estate, if the plaintiff has had notice of their interest, have been made parties to the action, the practitioner must have each of them served in the manner appointed by law, and the record should show the manner of service. Great care should be exercised in respect of the rights of infants, and insane, or other defendant under guardianship. Service of summons on them should be made as required by the statute.20 As to them, if the statute has not been followed, their rights remain in the real estate unaffected by any order of the court, and unaffected by any judicial sale of their real estate. In case of any irregularity in the proceedings there is no presumption to aid the record. Again, counsel, should see to it that the court in which he brings his action has jurisdiction to do what is asked. If the court has no jurisdiction of the subject-matter, then the purchaser of the real estate takes no title, and the person or persons, whose real estate is sought to be sold, can, at any time, take possession of the same. The order of the court in such case affords no protection. A judgment of a court without jurisdiction is an absolute nullity.21

The waiver of summons and entry of appearance may give the court jurisdiction over the person of the defendant, but

19 Strobe v. Downer, 13 Wis. 11; Southward v. Jameson, 66 O. S. 311; Koelsch v. Mixer, 52 O. S. 207; Spoors v. Coen, 44 O. S. 497; Black on Judgments, Vol. 1, Sec. 184; Freeman on Judgments, Vol. 1, Sec. 158.

20 When the record shows affirmatively that infants were not served, the decree as to them is void. Moore v. Starks, 1 0. S. 369.

21 Pennywit v. Foote, 27 0. S. 600; Spier v. Cordel, 33 0. S. 236; Gilliland v. Sellers, 2 O. S. 223; Moore v. Starks, 1 O. S. 369; Fleischman v. Walker, 91 Ill. 318; Santon v. Ballard, 133 Mass. ^64; St. Louis v. Cola Co., 111 Ill. 32; Weinmiller v. Laughlin, 5 0. S. 421; Adams v. Jeffries, 12 Ohio, 253.