Barton v. Harmon
| Decision Date | 11 July 1950 |
| Docket Number | No. 33682,33682 |
| Citation | 221 P.2d 656,203 Okla. 274 |
| Parties | BARTON et al. v. HARMON. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Misjoinder of parties is not reached by demurrer under the provisions of 12 O.S. 1941 § 267, but such objection must be taken by motion to strike.
2. This court may not take judicial notice of the provisions of municipal ordinances, but these must be alleged and proved before this court can determine rights or liabilities thereunder.
Joseph C. Stone, Charles A. Moon, of Muskogee, Kay Wilson, Jr., of Muskogee, of counsel, for plaintiffs in error.
Pierce & Pierce, A. L. Brook, of Muskogee, Arnote, Arnote & Bratton, of McAlester, for defendant in error.
This action was tried upon plaintiff's amended petition as amended and the separate answers of the defendants. Plaintiff's allegations are in substance that on January 14, 1946, she was a passenger in a taxicab owned and operated by the Muskogee Yellow Cab Company, a corporation, and that by reason of the negligence of the taxicab driver in going over a railroad crossing plaintiff was thrown against the ceiling of the taxicab and upon the floor thereby sustaining serious injuries for which she is entitled to recover damages against the Muskogee Yellow Cab Company that she is also entitled to recover damages against the executors of the estate of G. Lange, deceased, by reason of the fact that the said G. Lange, during his lifetime, had executed a bond as surety wherein Muskogee Yellow Cab Company, a corporation, was principal, which bond was executed, approved and filed in accordance with the provisions of Ordinances Nos. 1488 and 1538 of the city of Muskogee. Purported, but unauthenticated, copies of the above mentioned ordinances and a copy of said bond were attached to plaintiff's amended petition as amended.
After separate demurrers by the defendants were presented and overruled with exceptions defendants filed separate answers. By these answers the defendants denied generally the allegations of liability contained in plaintiff's petition and her right of recovery; admitted that the Muskogee Yellow Cab Company was a corporation; that G. Lange was deceased and that the persons named as executors were the duly appointed and qualified executors of his estate.
Defendants filed a motion for judgment on the pleadings which was overruled and at the conclusion of the evidence the executors made a motion for a directed verdict which was denied.
There was a several judgment in favor of plaintiff based on the verdict of the jury against the Muskogee Yellow Cab Company for $6,000 with interest from date of judgment and an alternative judgment based on the verdict of the jury against the executors of G. Lange, deceased, in the sum of $4,540.70 with interest from date of judgment, but conditioned that if plaintiff receives payment and satisfaction in full of her judgment against the cab company she shall have no recovery against the executors of the estate of G. Lange, deceased, but shall recover only whatever deficiency remains in the judgment against the cab company from the executors, not to exceed the said sum of $4,540.70.
Separate motions for new trial were filed by the defendants and overruled with exceptions and this appeal resulted.
For reversal of the judgment against Muskogee Yellow Cab Company the sole contention is that the trial court erred as a matter of law in overruling its separate demurrer to plaintiff's amended petition as amended on the ground of misjoinder of parties defendant, though its demurrer also alleged misjoinder of causes of action. Since misjoinder of parties is not a ground of demurrer under our Statute, 12 O.S. 1941 § 267, this Court has uniformly held that this objection to a pleading must be taken advantage of by motion to strike. Okmulgee Supply Co. v. Rotman, 144 Okl. 293, 291 P. 1; Tucker v. Hudson, 38 Okl. 790, 134 P. 21; Owen v. City of Tulsa, 27 Okl. 264, 111 P. 320. We find no error in the action of the court in this respect.
The bond on which plaintiff predicates her cause of action against the executors was executed by Muskogee Yellow Cab Company, a corporation, by G. Lange, president, as principal and by G. Lange as surety and was approved on the 28th day of May, 1945, by Kelly Brown as city attorney of Muskogee and R. T. Price as city manager. The promissory provision of the bond reads: 'That we, Muskogee Yellow Cab Company, a corporation as Principal, and G. Lange, as Surety, are held and firmly bound unto the City of Muskogee, Oklahoma, a municipal corporation, in the penal sum of Five Thousand ($5,000.00) Dollars, to be paid to said City of Muskogee, Oklahoma, through its duly authorized City Treasurer and his successors in office, for which payment well and truly to be made we bind ourselves, our heirs, executors, administrators and assigns, jointly and severally, firmly by these presents.' The condition of this promissory obligation is based upon the provisions of Ordinance No. 1488 entitled 'An Ordinance Regulating the Operation of Taxicabs,' and Ordinance No. 1538 Sections 3, 7, 13 and 14 of said Ordinance No. 1488 and it is stated in the bond that said ordinances are in full force and effect. It is then provided that if the said principal and surety herein 'shall in all things fully and completely comply with all of the requirements and provisions of said Ordinance No. 1488, Ordinance No. 1538 and shall indemnify all persons * * * in accordance with the terms and conditions of said Ordinance No 1488, Ordinance No. 1538, and shall fully pay, satisfy and discharge the claim or claims and judgments of any and all persons, firms, partnerships or corporations, as required by the terms, provisions and conditions of said ordinances, and each of them, then and in that event the Principal and Surety herein shall be fully released and discharged from any and all liability hereunder; * * *'. It is then provided that all persons whether individuals, firms, partnerships or corporations shall have the full right and authority to sue the principal and surety in the same or separate actions in any court within the State of Oklahoma having jurisdiction 'all in accordance with the terms, provisions and conditions of said ordinances hereinabove referred to, * * *.' It is then provided that any person, firm, partnership or corporation 'authorized by said Ordinances or either of them,' may, 'by virtue of the terms and conditions of said...
To continue reading
Request your trial
-
Johnson v. City of Tulsa
...Bradley v. Renfrow, 184 Okl. 25, 84 P.2d 430; Firemen's Relief, etc. of Holdenville v. Lucas, 189 Okl. 328, 117 P.2d 112; Barton v. Harmon, 203 Okl. 274, 221 P.2d 656; Oklahoma Railway Co. v. Wilson, 204 Okl. 488, 231 P.2d 688. Also see Frates v. Eastman, 10 Cir., 57 F.2d But for the statut......
-
Subscribers at Casualty Reciprocal Exchange v. Sims
...on appeal. We have repeatedly held that a motion to strike is a proper way to attack a misjoinder of parties defendant. Barton v. Harmon, 203 Okl. 274, 221 P.2d 656, and cases therein As the other alleged errors complained of, such as the introduction in evidence of a picture of plaintiff's......
-
Lakewood Development Co. v. Oklahoma City, 47101
...courts may not take judicial notice of the provisions of municipal ordinances. Drake v. Tims, Okl., 287 P.2d 215 (1955); Barton v. Harmon, Okl., 221 P.2d 656 (1950). But we disagree that under the circumstances of this case it was necessary for the full text of the 'E' local commercial ordi......
-
Mitchell v. Amerada Hess Corp.
...demurrer. Excessive, or misjoinder of, parties cannot be reached by demurrer but must be raised by a motion to strike. Barton v. Harmon, 203 Okl. 274, 221 P.2d 656 (1950). An examination of the record designated by the parties reflects no motion to strike included in the demurrer and multip......