Aultman & Taylor Machinery Co. v. Fuss

• Decision Date: 16 May 1922
• Docket Number: 10674.
• Citation: 207 P. 308,86 Okla. 168,1922 OK 169
• Parties: AULTMAN & TAYLOR MACHINERY CO. v. FUSS.
• Court: Oklahoma Supreme Court

207 P. 308

86 Okla. 168, 1922 OK 169

AULTMAN & TAYLOR MACHINERY CO. v. FUSS.

No. 10674.

Supreme Court of Oklahoma

May 16, 1922

Syllabus by the Court.

When a defendant desires to present to this court as error the overruling of a demurrer to the petition, it may be presented by two methods: First, saving the proper exception, and having the appeal lodged in this court within six months from the date of the order; second, by saving the proper exception and incorporating in the motion for new trial the error of the trial court in overruling the demurrer, and perfecting his appeal to this court within six months from the date of overruling the motion for new trial.

The term "alienate" as used in section 6324, Rev. Laws 1910, signifies the wrongful transfer of such property to another.

A party guilty of alienating the property of deceased after his death, and prior to the time of the appointment of administrator, is liable in damages to the administrator for twice the value of the property alienated.

Record examined, and held, that the evidence is sufficient to support the verdict of the jury that the property had been alienated within the meaning of section 6324, Rev. Laws 1910.

Record examined, and held, the instructions submitted the question of facts to the jury under proper instructions, and there was sufficient evidence to support the finding of the jury, and the judgment will not be disturbed.

Appeal from District Court, Grant County; J. W. Bird, Judge.

Action by J. H. Fuss, administrator of the estate of B. E. Smith deceased, against the Aultman & Taylor Machinery Company. Verdict and judgment for plaintiff, and defendant appeals. Affirmed.

J. G McKelvy and E. H. Breeden, both of Medford, for plaintiff in error.

C. S Ingersoll, Sam P. Ridings, and A. C. Glenn, all of Medford, for defendant in error.

McNEILL J.

This action was commenced in the district court of Grant county by J. H. Fuss, administrator of the estate of B. E. Smith, against the Aultman & Taylor Machine Company, to recover damages for alienation of certain property belonging to the esstate of B. E. Smith prior to the appointment of the administrator. The petition alleged that B. E. Smith died on the 14th day of April, 1917, and was the owner of a threshing machine of the value of $2,000; that on the 8th day of May, 1917, and prior to the appointment of an administrator of the estate of deceased, the defendant through its authorized agent took possession of and converted to its own use and alienated the threshing machine, and delivered possession to J. T. Smith. It is alleged that the threshing machine was of the value of $2,000 and judgment is prayed for in the sum of $4,000. To this petition the defendant filed a demurrer which was overruled by the court.

Thereafter the defendant filed an answer and cross-petition. The answer admitted that Smith died as alleged in the petition; that he was the owner of the property described in the petition; and alleged further that the property was not of the value to exceed $1,500 and at the time of the death of the deceased the defendant held a chattel mortgage on the same of more than $1,700, and further alleged that it felt itself insecure, and found the property in control of J. T. Smith, a brother of deceased, and made a contract whereby Smith executed his note and chattel mortgage on the property as collateral security for the indebtedness of B. E. Smith. A copy of the agreement made with J. T. Smith was attached to the answer. The defendant for cross-petition alleged that B. E. Smith was indebted to the defendant on two promissory notes secured by chattel mortgage on the threshing machine, the total amount of said notes was approximately $1,900, and asked to have the mortgage foreclosed. The case was tried to a jury, and the verdict returned in favor of plaintiff and against the defendant for $1,558.50. Judgment was rendered on the verdict, and from said judgment the defendants have appealed.

For reversal the defendant presents numerous assignments of error. It is first contended the court erred in overruling the demurrer to the petition for the reason the petition failed to state facts sufficient to constitute a cause of action, because the petition failed to allege the administrator had made a demand for possession of the property prior to bringing of suit. The plaintiff in error has waived this question because it did not appeal within six months from the date of the order overruling the demurrer, nor did it incorporate as error the overruling of the demurrer in its motion for new trial. If this error had been presented in the motion for new trial, the same could be considered at this time. See Brooks v. Watkins Medical Co., 81 Okl. 82, 196 P. 956. This was not done, and the error cannot now be considered.

It is next contended there is no evidence to support the verdict or judgment of the court because the evidence is insufficient to support a finding that the plaintiff in error had alienated or embezzled the property. The plaintiff in error contends the words "embezzle or alienate" as used in section 6324, R. L. 1910, means the fraudulent taking or passing the possession of property, and must be so steeped in fraud as to place the property beyond the reach of the administrator, and thereby cause the same to be lost to the estate. The Supreme Court of California, in defining embezzlement and alienation as used in the statute of that state, which is almost identical with our statute, in the case of Jahns v. Nolting, 29 Cal. 508, stated as follows:

"To embezzle, as the term is employed in section 116, is to fraudulently appropriate to one's own use, or conceal the effects of the estate which such person has in his possession; and to alienate, signifies to wrongfully transfer such property to another. Such embezzlement or alienation is a wrongful conversion of the property, for which an action of trover was maintainable at common law. An action of the nature of an action of trover may be brought by the administrator, without the aid of section 116, against any person who has embezzled or

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