Bell-Wayland Co. v. Nixon

• Citation: 156 P. 1195,57 Okla. 138,1916 OK 414
• Decision Date: 05 April 1916
• Docket Number: Case Number: 6220
• Parties: BELL-WAYLAND CO. v. NIXON.
• Court: Oklahoma Supreme Court

1916 OK 414

156 P. 1195

57 Okla. 138

BELL-WAYLAND CO. v. NIXON.

Case Number: 6220

Supreme Court of Oklahoma

Decided: April 5, 1916

Syllabus

¶0 1. JUSTICES OF THE PEACE-- Garnishment--Effect. An order of a justice of the peace directing a garnishee to pay money into court simply gives to the creditor the same right to enforce the payment of the money from the garnishee that the debtor previously had. It merely assigns the claim from the debtor to the creditor.

2. GARNISHMENT--Proceedings to Support--Action Against Garnishee. In an action by the plaintiff against the garnishee for a failure to comply with the order made by the justice directing the payment of money into court, the plaintiff is entitled to recover if he shows a valid judgment in his favor against his debtor, a garnishee summons, an answer of the garnishee, an order of court directing the money to be paid into court, a refusal, and a liability to the debtor by the garnishee at the time of the service of garnishee summons.

3. JUSTICES OF THE PEACE--Garnishment-- Liabilities Subject--Negotiable Instrument. Where a garnishee answers and admits a liability, undenied, by a promissory note, and fails to disclose its negotiability, an order made by the justice directing the money to be paid into court is not void, notwithstanding section 4836, Rev. Laws 1910, provides no judgment call be rendered upon a liability of a garnishee arising by reason of his having made a negotiable note.

4. GARNISHMENT--Proceedings to Enforce--Action Against Garnishee. The record examined, and it is held, that the trial court was in error when it directed a verdict in this case.

Error from County Court, Garvin County; W. R. Wallace, Judge.

Garnishment proceeding by the Bell-Wayland Company against F. C. Nixon. Judgment for defendant, and plaintiff brings error. Reversed and remanded.

Thompson, Patterson & Hampton and R. E. Bowling, for plaintiff in error.

J. S. Garrison and C. L. McArthur, for defendant in error.

HOOKER, C.

¶1 On the 21st day of September, 1911, the plaintiff in error instituted suit in a justice's court of Garvin county to recover a judgment against E. M. Armstrong and L. P. Dyer, doing business under the name of E. M. Armstrong & Co., for the sum of $ 199.47. On the 30th day of September, 1911, judgment was rendered in said action in favor of the plaintiff in error and against said defendants for said sum.

¶2 On the 15th day of November, 1911, a garnishee summons was issued in said court in said action, and same was served upon the defendant in error, F. C. Nixon, and thereafter, on the 25th day of November, 1911, the said defendant F. C. Nixon appeared in said court and answered under oath that he was indebted to one of the defendants, L. P. Dyer, in the sum of $ 1,500, which indebtedness was evidenced by five promissory notes in the sum of $ 300 each, due December 1, 1911, 1912, 1913, 1914, and 1915. On the same day the justice of the peace directed the said F. C. Nixon's garnishee to pay into court the sum of $ 300 at the maturity of the note due December 1, 1911. This the garnishee refused to do, and in January, 1913, the plaintiff in error instituted a suit in the justice's court against the garnishee wherein it alleged that it recovered a judgment against the said L. P. Dyer on the 30th of September, 1911, for the sum stated, and costs therein expended; that in said action the said F. C. Nixon was garnisheed and appeared as such garnishee, and answered that he was indebted to the said L. P. Dyer, and was ordered by the court to pay the sum of $ 300 into court, which he had failed to do, and further alleged that the said F. C. Nixon was at the time of the service of the garnishment indebted to the said L. P. Dyer as stated in his answer, and further prayed judgment against the said F. C. Nixon for the sum of $ 199.47. This cause was tried in the justice's court, and judgment rendered in favor of the defendant in error, F. C. Nixon. Thereupon the plaintiff in error appealed to the county court, and the defendant in error filed therein an amended answer wherein he alleges, in substance, that he was not at the time of the filing of his answer as a garnishee in the original action indebted to the said L. P. Dyer in any sum whatever; that he was unable to read or write, and that his answer as garnishee aforesaid was prepared by the attorney for plaintiff in error, and that by mistake he admitted he was indebted to the said L P. Dyer, when, as a matter of fact, he was not so indebted; that he had prior thereto executed and delivered to the said L. P. Dyer five negotiable promissory notes for the sum of $ 300 each, due as stated heretofore; but defendant does not claim that the notes have been assigned or transferred to his knowledge.

¶3 At the conclusion of the evidence the court withdrew from the consideration of the jury the exhibit which was the original judgment, and directed a verdict in favor of the defendant in error.

¶4 The nature of a suit in the first instance is to be determined by the allegations of the petition, not from its caption. The caption of the petition in the original case of plaintiff in error against Armstrong & Co. is defective; but the allegations of the petition itself show that the action is against E. M. Armstrong and L. P. Dyer, doing business under the firm name of E. M. Armstrong & Co. The summons issued thereon was against E. M. Armstrong and L. P. Dyer and the judgment rendered was against L. P. Dyer, and it is difficult to say whether a judgment was rendered against E. M. Armstrong or not, but in view of the fact that the judgment recites that the same is rendered against each of the defendants, and inasmuch as the same particularity is not required in the justice courts as in courts of record, we will give to the judgment a literal construction, and hold that the judgment, though not technically exact, is sufficient; for, taken as a whole, it shows that a conclusion was reached and entered which was intended as a final determination of the action then pending. See Fooshee & Brunson v. Smith, 34 Okla. 247, 124 P. 1070.

¶5 The original judgment in this case having been properly rendered, the plaintiff in error was entitled to a garnishment under the provisions of the Code of Civil Procedure before justices of the peace, and under section 5380, Rev. Laws 1910, where the garnishee appears and answers, and it is discovered on his examination that he was indebted to defendant, the justice may order the payment of the amount owing by the garnishee into court, etc. The garnishee answered that he was indebted to Dyer, and thereupon the justice of the peace made an order directing the garnishee to pay the money into court as soon as it became due. He having failed to do this, the plaintiff in error elected to follow the procedure designated by section 5381 of the Civil Code, and instituted an independent suit against the garnishee to recover the amount of money admitted by him to be due in the answer of the garnishee filed in the original action. This court, in the case of Spaulding Manufacturing Company v. Witter et al., 52 Okla. 362, 152 P. 1079, says:

"The only question presented is whether or not the bill of particulars states a cause of action. The trial court held that it did not, for the reason, among others, that the order directing the garnishee to pay the money into court was not a final judgment, and therefore no appeal would lie, and hence there was no liability upon said bond. Either party to an action before a justice of the peace may appeal from a final judgment. Section 6386, Snyder's Comp. Laws 1909. This being true, was the order of the justice directing the garnishee to pay the money into court a final judgment from which the garnishee might appeal? We think not. The sections of our statute in force at the time of the execution of this bond necessary to be considered in determining this question are sections. 6301 and 6302, Snyder's Comp. Laws of 1909. [These sections are the same as sections 5380 and 5381, Rev. Laws. 1910.]

"Our Code of Civil Procedure before justices of the peace, of which the two foregoing sections form a part, was adopted by the Territory of

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