Carter v. Merveldt

• Decision Date: 08 March 1938
• Docket Number: Case Number: 26963
• Court: Oklahoma Supreme Court
• Parties: CARTER, State Auditor v. CARL MERVELDT & SON et al.

1938 OK 156

80 P.2d 254

183 Okla. 152

CARTER, State Auditor v. CARL MERVELDT & SON et al.

Case Number: 26963

Supreme Court of Oklahoma

Decided: March 8, 1938

Syllabus

¶0 EVIDENCE--Carbon Impression as Primary Evidence of Contents of Assignment.

Carbon impression of an assignment written on a typewriter, made by the same strokes of the keys as companion impression, is original, and either impression is primary evidence of the contents of the assignment; and is admissible in evidence without accounting for the nonproduction of the so-called original copy.

Appeal from District Court, Custer County; W. P. Keen, Judge.

Action by Carl Merveldt & Son, a copartnership, against Joe Biggs and others; Frank Carter, State Auditor, garnishee. Judgment for plaintiff, and garnishee appeals. Reversed and remanded, with directions.

Mac Q. Williamson, Atty. Gen., Houston E. Hill, Asst. Atty. Gen., and Hall & Thompson, for plaintiff in error.

W. P. Morrison and J. A. Rinehart, for defendants in error.

BAYLESS, V. C. J.

¶1 Carl Merveldt & Son, a copartnership, instituted an action in the district court of Custer county, Okla., against Joe Biggs and others to recover a money judgment, and caused a garnishment summons to be issued against the state of Oklahoma, duly served upon Frank Carter, State Auditor, to reach a debt supposed to be owing by the state of Oklahoma to Joe Biggs.

¶2 Plaintiff recovered judgment against Joe Biggs, and thereafter the garnishment issue was tried.

¶3 We desire to set out a history of the issue involved, and in so doing we will state matters as though they are conclusively in evidence, although Carter contends otherwise and objects to certain legal arguments made on what he calls assumed facts.

¶4 Joe Biggs obtained a contract from the Highway Commission to do certain work in Dewey county, Okla., for an agreed price of $17,986.34. As a condition, he obtained from Union Indemnity Company a bond to the state of Oklahoma, as required by section 10983, O. S. 1931. Biggs began work on the project and from time to time was paid portions of the contract price upon estimates of completion, but on each estimate 10 per cent. of the amount was withheld until the final completion and approval of the work done. September 13th, before the road contract was completed, Union Indemnity Company took an assignment from Biggs of the money owing, or to be owing to him, under the contract. September 27th Biggs had completed the contract, and there was owing to him in all $4,571.53. August 11th this action was commenced, and the garnishee summons was served October 5th. Carter answered for the state October 29th, stating (1) nothing owing; and (2) that he would hold the warrant issued in payment of the claim, subject to the further orders of the court. November 3rd, Biggs filed a claim for the amount with the Highway Commission, which claim bore an indorsement of the assignment. November 17th plaintiff served upon Carter a notice that it took issue with his answer as such garnishee. November 22nd the claim was approved by the Highway Commission, filed with the State Auditor, and warrant issued to Union Indemnity Company pursuant to said assignment. After judgment was taken in the main case, the matter came on for hearing upon the issue between plaintiff and garnishee. The trial court sustained the validity of the garnishment proceedings and rendered judgment against "Frank Carter, as State Auditor of the State of Oklahoma and Garnishee Defendant," with interest, and further ordered said Carter to pay the judgment sum to the clerk of the court.

¶5 Carter presents four propositions, viz: (1) The judgment is not sustained by the evidence; (2) the judgment is contrary to law; (3) error in excluding from the evidence the copy of the assignment; and (4) error in overruling motion for new trial on the ground of newly discovered evidence.

¶6 Plaintiff argues six propositions. The first four of these relate to the special protection afforded laborers and materialmen under the bonds given in pursuance of statutes, and the priority and preferred status of laborers and materialmen with respect to the funds due on the contract. No 5 relates to the form of judgment to be taken in sustaining a garnishment against the state. No. 6 relates to the duty of the State Auditor under the facts in this case.

¶7 At the threshold we are met by Carter's insistent contention, in his reply brief, that plaintiff is not in a position to raise any issues of law relating to the contractual relation between it and Biggs and Union Indemnity Company; Carter insists that the only portion of the record brought up to us is that concerning the trial of the garnishment issue, and that this portion of the record does not contain evidence regarding this relationship. In other words, he insists that plaintiff must relate to us facts not disclosed by this record, facts assumed in so far as the record before us shows, in order to present the law involved in assignments 1-6. Taking the pleadings, the evidence, oral and written, and the statements of counsel during the trial on the garnishee issue, we must conclude that a sufficient showing was made to give any court a substantial understanding of these relationships between plaintiff Biggs and Union Indemnity Company. It will not profit us to discuss this further. It is certain that the exhibits which Carter offered in evidence, which were rejected, and for which reason he seeks a reversal of this judgment, disclose this relationship in detail. Therefore, it would seem that if we reverse this judgment for the alleged error of refusing to admit such exhibits in evidence, we will but prepare the way for ultimately...