Brisley v. Mahaffey

• Decision Date: 08 May 1917
• Docket Number: Case Number: 5893
• Citation: 167 P. 984,64 Okla. 319,1917 OK 209
• Parties: BRISLEY et al. v. MAHAFFEY.
• Court: Oklahoma Supreme Court

1917 OK 209

167 P. 984

64 Okla. 319

BRISLEY et al. v. MAHAFFEY.

Case Number: 5893

Supreme Court of Oklahoma

Decided: May 8, 1917

Syllabus

¶0 1. Trial--Directed Verdict--Issue. Defendant's counterclaim stating a good cause of action against plaintiff (although not proper subject for counterclaim in this action), the plaintiff having alleged an affirmative defense, but offering no evidence to support same, the court erred in directing a verdict for the plaintiff on the issues joined.

2. Set-Off and Counterclaim--Damages--Statute--Waiver. M. brought suit against B. on supersedeas bond, B. admitted the execution of the bond, and by way of counterclaim alleged damages sustained by unlawful attachment in the action in which bond was executed. M. in reply alleged adjudication of damages in former suit. Held, the damages sustained not proper subject for counterclaim in this action, the same not haying arisen out of the bond sued on and not being necessarily involved in the action to determine liability under the bond. Section 4746, Rev. Laws 1910. Held, further, by filing reply and joining issue of former adjudication, plaintiff waived objection that such damages were not proper subject for counterclaim in this action.

3. Appeal and Error--Review--Theory of Case Below. Plaintiff, having submitted his cause to the jury in the trial court on the issue of former adjudication, will not be permitted to change his theory and urge, for the first time in this court, the damages were not proper subject for counterclaim.

Mounts & Davis and Jas. S. Watson, for plaintiffs in error.

Wilson & Roe, for defendant in error.

OWEN, J.

¶1 This is an action to recover on a supersedeas bond brought by the defendant in error, Mahaffey, hereafter referred to as plaintiff, against the plaintiffs in error, Brisley, hereafter referred to as defendant. The bond was executed by the Brisleys to stay the judgment rendered in an action between Mahaffey and Brisley for the recovery of money due for rent on certain lands. The case came to this court on appeal and the appeal was dismissed. 31 Okla. 111, 119 P. 1128. The defendants, Brisley, in the trial of the instant case admitted the execution of the bond sued on, and pleaded, by way of answer and counterclaim, damages sustained by reason of an unlawful attachment in the case in which the bond was given. Plaintiff, Mahaffey, by reply to the defendant's counterclaim alleged that the question of damages had been adjudicated in the former case. On the trial defendant admitted the execution of the bond, and, assuming the burden, offered proof of the amount of damages in support of the allegations of his counterclaim. At the conclusion of this evidence, and on motion of counsel for plaintiff, the court excluded the evidence from the jury and directed a verdict for the plaintiff. The instruction is as follows:

"Gentlemen of the jury: It is the instructions of the court that the evidence introduced by the defendant in this case is insufficient as a defense to plaintiff's cause of action, for the reason that the entire matter has been adjudicated in a former suit in this court and judgment rendered in favor of the plaintiff in this action, and you are instructed to return a verdict in favor of the plaintiff."

¶2 To this action of the court the defendant at the time duly excepted. The allegations in the reply stated a complete bar to the counterclaim, but no proof was offered to sustain this affirmative defense. The rule is well settled by the decisions of this court that, Brisley being entitled to recover the damages sustained by reason of the unlawful attachment in the former case, unless the affirmative defense alleged in the reply was sustained, and there being no evidence offered to support the allegations of former adjudication, the court erred in excluding the evidence and directing a verdict in favor of Mahaffey. Harrah v. First National Bank, 26 Okla. 620, 110 P. 725; Offutt v. Wagoner, 30 Okla. 458, 120 P. 1018; Fitzpatrick v. Nations, 30 Okla. 462, 120 P. 1020. Counsel for plaintiff in their brief concede that it might be possible there was not sufficient evidence introduced to warrant the trial court in finding the counterclaim had...