Same — General Execution for Deficiency. In a foreclosure proceeding, when a judgment for any specific amount and also for the sale of the mortgaged property shall have been rendered and amount sufficient to satisfy the amount of the debt and costs be not made from the sale of the mortgaged property under section 505, O. S. 1931, an execution may issue for the balance as in other cases. McNeal et al. v. Baker et al., 135 Okla. 159, 274 P. 655. 3. Same — Procedure.
To reject out of hand the view that in this context "should" is impliedly followed by the customary, "and the same hereby is", makes the court once again revert to medieval notions of ritualistic formalism now so thoroughly condemned in national jurisprudence and long abandoned by the statutory policy of this State. Russell v. Freeman, 202 Okla. 417, 214 P.2d 439, 441-42 (1950); Gade v. Loffler, 171 Okla. 313, 42 P.2d 815, 818 (1935); McNeal v. Baker, 135 Okla. 159, 274 P. 655, 656 (1929); Foreman v. Riley, 88 Okla. 75, 211 P. 495, 496 (1923).Brawn, supra note 13, 144 P. at 1080-81; Manhattan-Dickman Construction Co. v. Shawler, 113 Ariz. 549, 555, 558 P.2d 894, 900 (1976); Rack, supra. note 13, 318 S.W.2d at 215.
In finding the ordinance applied to the appellant, we determine the effect of the language used is to determine the ordinance is constitutionally applicable to appellant. In construing the judgment of a court, effect must be given to every word and part thereof, including the effects and consequences that follow the necessary legal implication of its terms although not expressed. Tilley v. Allied Materials Corp., 208 Okla. 433, 256 P.2d 1110 (1953); McNeal v. Baker, 135 Okla. 159, 274 P. 655 (1929). It is implied from this judgment determining an ordinance applicable to the appellant that the ordinance is constitutional.
Therefore, we have a question of construction and not a question of modification. In McNeal v. Baker, 135 Okla. 159, 274 P. 655, we held that in construing the judgment of a court, effect should be given to every word and part thereof, including such effects and consequences that follow the necessary legal implications of its terms, although not expressed; and that where the wording of the judgment is not clear, it should be construed so as to carry out the evident purport and intent of the action rather than to defeat it. In Gade v. Loffler, 171 Okla. 313, 42 P.2d 815, we said that in construing a judgment, it is necessary to take into consideration the situation to which it was to be applied and the purpose sought to be accomplished.
Yorkan's interest was inferior to Tilley's interest, as Yorkan acquired its interest in the leases subject to Tilley's recorded contract. We said in McNeal v. Baker, 135 Okla. 159, 274 P. 655, as follows: "In construing the judgment of a court, effect should be given to every word and part thereof, including such effects and consequences that follow the necessary legal implications of its terms, although not expressed."
It is true that when the objectionable portion of the order contained in the journal entry is disregarded, the decree is left without a direction for the collection of any deficiency judgment which might remain after the sale, but the judgment is not for this reason invalid and unenforceable. See McNeal et al. v. Baker et al., 135 Okla. 159, 274 P. 655. Apparently these are the views of the concededly defective provisions that the trial court entertained in refusing to vacate said judgment. As said provisions were clearly surplusage and not fatal to the validity of the judgment as a whole, it cannot be said that the trial court erred in so ruling, and we so hold.
Gade et al., Adm'rs. v. Loffler et al., 171 Okla. 313, 42 P.2d 815. See, also, McNeil v. Baker, 135 Okla. 159, 274 P. 655. Of course, the terms and wording of the judgment play a most important part, and the general purpose to be accomplished is to be considered only for the purpose of resolving any doubt created by ambiguity that may exist, for, in the absence of such uncertainty, no real need arises for the application of rules of construction. Frensley v. Frensley, 177 Okla. 221, 58 P.2d 307.
As we construe it, it was merely a recognition by the court that the funds that had theretofore accrued and should thereafter accrue, being in the hands of the bank, who was subject to the orders of the court, there was no occasion or necessity for a supersedeas bond, pending the appeal. In construing the judgment, it is necessary to take into consideration the situation to which it was to be applied and the purpose sought to be accomplished. This court, in the case of McNeal v. Baker, 135 Okla. 159, 274 P. 655, had occasion to consider a situation somewhat similar to the one here involved, and in doing so used this language: "In construing the judgment of the district court in the foreclosure suit, effect should be given to every word and part of it, including such effects and consequences that follow the necessary legal implications form its terms, although not expressed. The wording of the judgment is not clear and in such a case it should be construed so as to carry out the evident purport and intent or the action, rather than to defeat the same."