London & Lancashire Indemnity Co. v. Courtney

• Decision Date: 31 July 1939
• Docket Number: No. 1814.,1814.
• Citation: 106 F.2d 277
• Parties: LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA v. COURTNEY.
• Court: U.S. Court of Appeals — Tenth Circuit

106 F.2d 277 (1939)

LONDON & LANCASHIRE INDEMNITY CO. OF AMERICA v. COURTNEY.

No. 1814.

Circuit Court of Appeals, Tenth Circuit.

July 31, 1939.

Walter D. Hanson, of Oklahoma City, Okl. (F. A. Rittenhouse and John F. Webster, both of Oklahoma City, Okl., on the brief), for appellant.

W. P. Morrison, of Oklahoma City, Okl. (J. A. Rinehart, of El Reno, Okl., on the brief), for appellee.

Before PHILLIPS, BRATTON, and WILLIAMS, Circuit Judges.

WILLIAMS, Circuit Judge.

An action was commenced in the District Court of Canadian County, Oklahoma, by Lucile A. Courtney, plaintiff, against R. G. Courtney, defendant, in which said plaintiff recovered a judgment against said defendant. Thereafter, on August 22, 1936, said plaintiff, proceeding under Sections 497, 500, 501, Oklahoma Statutes 1931, 12 Okl.St.Ann. §§ 847, 863, 864, caused a writ of garnishment to be issued, interrogatories being filed, and on August 25, 1936, order was issued by the clerk for same to be answered by appellant garnishee before September 10, 1936.

On September 8, 1936, said garnishee, London & Lancashire Indemnity Company of America, a foreign corporation, duly filed its petition for removal from the state district court to the United States District Court for the Western District of Oklahoma, with notice and bond. On September 19, 1936, the state district court denied the application for removal. On September 29, 1936, transcript of record for removal was filed in the United States District Court. On October 29, 1936, plaintiff, appellee, filed motion to remand.

It appears that delay in filing answer to interrogatories until April 26, 1938 was occasioned by the pendency before the court of motion to remand, same not being overruled until April 30, 1937. After jurisdiction of the court was sustained by order overruling motion to remand, then by motion under special appearance service of process was attacked, and briefs thereon submitted, after which same was overruled. Then answers to interrogatories were filed on April 26, 1938, in said court without any objections being made as to same being out of time. No election to take issue under Section 620, Oklahoma Statutes 1931, 12 Okl.St.Ann. § 1177, as to garnishee's answer had been made. The case was set for trial on October 5, 1938, on which day motion to dismiss without prejudice was filed.

The garnishee on the same day filed objections and response to the motion to dismiss without prejudice, and also motion for judgment. The court after a hearing on said motions entered an order dismissing the action without prejudice, having overruled the objection of the garnishee thereto, and denied garnishee's motion for judgment on the pleadings.

It is the contention on the part of appellant that the answer to the interrogatories, under Section 620, supra, no election having been made to put such answer in issue, was conclusive of the garnishee's liability on facts set up in answer, unless within 20 days from filing of such answer the plaintiff should have elected by appropriate notice to take issue as to said answer, and having failed to so do, that the trial court was without jurisdiction to have granted the dismissal of the action without prejudice, and should not have granted appellee's motion to dismiss without prejudice, but have sustained appellant's motion for judgment upon the pleadings.

Section 1, Article 3, of the Constitution of Kansas provides that: "The judicial power of this state shall be vested in * * * district courts, probate courts, justices of the peace, and such other courts, inferior to the supreme court, as may be provided by law; * * *."

In Gibson v. Ferrell, 77 Kan. 454, 94 P. 783, 784, it is said: "The application to intervene falls within no provision of the Code of Civil Procedure, but, notwithstanding this fact, a district court acting upon principles of manifest justice may, in cases not covered by the Code, permit one not a party to the suit to intervene either before or after judgment for the protection or advancement of some right with reference to the subject-matter of the litigation which he holds. In all cases lying without the purview of the statutes the application for leave to intervene must necessarily be addressed to the sound discretion of the court."

In Sizemore v. Dill, 93 Okl. 176, 220 P. 352, Gibson v. Ferrell, supra, is cited and followed.

Section 9 of the Organic Act of Oklahoma Territory (Act of Congress, May 2, 1890, 26 Stat. 85) provides: "That the judicial power of said Territory shall be vested in * * * district courts, probate courts, and justices of the peace. * * * and the said * * * district courts * * * shall possess chancery as well as common law jurisdiction and authority for redress of all wrongs committed against the Constitution or laws of the United States or of the Territory affecting persons or property."

An act providing for a Code of Civil Procedure for the Territory of Oklahoma, taking effect on August 14, 1893, 12 Okl. St.Ann. § 1 et seq., and providing that "This act Chapter shall be known as the code of civil procedure of the Territory State of Oklahoma. * * *," was taken from Kansas. United States v. Choctaw, O. & G. R. Co., 3 Okl. 404, 462, 41 P. 729, and other cases cited under Section 1, Ch. 1, Art. 1, p. 1, Vol. 1, Oklahoma Statutes, 1931, 12 Okl.St.Ann. § 1.

Said Code of Civil Procedure was continued in force at the erection of the state of Oklahoma, by provisions of the Enabling Act (Act of Congress, June 16, 1906, 34 Stat. 267, and the Schedule of the Constitution, Okl.St.Ann.) and is found in Oklahoma Statutes 1931, Vol. 1, pp. 1-471, 12 Okl.St.Ann. § 1 et seq. The Constitution of Oklahoma provides that judicial power of said state shall be vested in supreme and district courts, etc. Const., Art. 7, Section 1, Okl.St.Ann.

The code of civil procedure, having been enacted in Kansas under the Constitution of January 29, 1861, and borrowed from Kansas, was incorporated in Statutes of 1893 for Oklahoma Territory.

Sections as same appear in Kansas, Oklahoma Territory, and Oklahoma State Statutes are as follows: Sections 417, 418, 497, 500, 501, 502, 619, and 620, Oklahoma Statutes 1931, 12 Okl.St.Ann. §§ 682, 683, 847, 863-865, 1176, 1177, in Statutes of Oklahoma Territory, 1893, as Sections 4287, 4288, 4380, 4396, 4397, 4398, 4082, 4085, and in the then existing Kansas Code as paragraphs 4492, 4493, 4585, 4601, 4602, 4603, 4287, and 4290.

The trial court, on motion of appellee and over objection of appellant, having dismissed the garnishment proceeding without prejudice, the question here for determination is whether it should have been without prejudice except as to issues made by the affidavit and interrogatories and garnishee's answer, under which appellee is concluded under Section 620, supra.

The answer of the garnishee, no issue having been properly joined as to the truthfulness thereof, was conclusive of the truth of the facts therein stated. Davis v. Lilly et al., 17 Okl. 579, 87 P. 302; House v. Scanlan, 34 Okl. 796, 127 P. 481; Central Loan & Trust Co. v. Campbell Comm. Co., 5 Okl. 396, 49 P. 48; Id., 173 U.S. 84, 19 S.Ct. 346, 43 L.Ed. 623; Brooks v. Fields et al., 25 Okl. 427, 106 P. 828; Mason et al. v. Miller et al., 54 Okl. 46, 153 P. 187; White v. White, 130 Okl. 11, 264 P. 896.

In Davis v. Lilly et al., supra, the garnishees each filed an answer, under oath, stating that they were indebted to the defendant, W. W. Smith, in no manner of sum whatever. To these answers, reply was filed by plaintiff, E. A. Lilly, in which he stated the nature of the claim of the defendant, Smith, against each of said garnishees, neither the garnishee Davis nor his attorney being properly served with written notice that plaintiff elected to take issue on garnishee's answer. Service was had upon the defendant, Smith, by publication. The matter being referred to a referee, the defendant, Smith, filed an answer in which he confessed judgment for the amount sued for, stating that the garnishee, Davis, was indebted to him for more than the amount claimed in the plaintiff's petition. Charles E. Davis, the garnishee, objected to the introduction of any evidence as against him as such garnishee, for the reason that neither he nor his attorney was served with written notice that the plaintiff elected to take issue on the answer of the garnishee, which was overruled, and exceptions saved. The referee, after such hearing, reported his findings and conclusions. The court confirmed and approved same, reciting in the order that 17 Okl. 579, 87 P. 303 "* * * appearing to the court that each of said parties have entered their general appearance in this cause, and are represented by counsel, except W. P. Fowler, who is not present either in person or by attorney, but who has entered his general appearance herein, and the court having heard the report of the referee, confirms and adopts the findings of fact and the conclusions of law, and judgment is given accordingly, * * * that the plaintiff, E. A. Lilly, have and recover of the defendant W. W. Smith and Chas. E. Davis, garnishee defendant, the sum of $156.56 * * *", costs to be taxed against them.

Davis, the garnishee defendant, appealed, W. W. Smith, and the intervenor, George T. Webster, cross-appealing.

On appeal the court said:

"In an action of this kind two distinct and different issues are presented. One between the plaintiff and defendant, and the other between the plaintiff and the garnishee. Hence, the appointment of a referee to hear and determine the issues involved in this case, and to report his findings of fact and conclusions of law thereon, with the consent of the parties, did not waive any rights that the plaintiff in error had under the provisions of our statute as a garnishee. The objection, therefore, by counsel for plaintiff in error to the introduction of any testimony ought to have been sustained, and when the fact was called to the attention of ...