Cockrell v. Schmitt

• Decision Date: 18 February 1908
• Docket Number: Case Number: 1892 OK Ter
• Citation: 1908 OK 16,20 Okla. 207,94 P. 521
• Parties: COCKRELL et al. v. SCHMITT.
• Court: Oklahoma Supreme Court

1908 OK 16

94 P. 521

20 Okla. 207

COCKRELL et al. v. SCHMITT.

Case Number: 1892 OK Ter

Supreme Court of Oklahoma

Decided: February 18, 1908

Syllabus

¶0 1. PLEADING--Motions--Separating and Numbering Causes of Action. Where it is not obvious that the petition states more than one cause of action, it is not error to overrule a motion to require plaintiff to separately state and number the several causes of action, when the motion is a general one and fails to specify wherein the Petition states more than one cause of action.

2. SAME--General Demurrer--Pleading Good in Part. Where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, a demurrer should be overruled.

3. EVIDENCE--Chattel Mortgages--Recitals of Ownership--Presumptions. As the law presumes that all acts are done in good faith until there is evidence to the contrary, a chattel mortgage, in evidence containing the statement that the "mortgaged property is owned entirely, by and is now in possession of said party of the first part at his home in Lincoln township, Blaine county, Oklahoma. * * *" fairly tends to prove the same, and will be regarded as prima facie evidence of the truth of the statement, in the absence of evidence to the contrary. (Hayes, J. dissents.)

4. TRIAL--Prima Facie Case--Directing Verdict. If the evidence on behalf of plaintiff is sufficient to prove his cause of action, and there is no substantial evidence offered by defendant upon any material issue in the case, it is not error for the trial court to instruct the jury to return a verdict for the plaintiff.

5. EXECUTION--Judgment--Necessity--Secondary Evidence. Where the sheriff seeks, in an action of replevin, to justify the seizure of property under an execution issued in another case, he must prove a valid and subsisting judgment in that case before he can attack a transfer of the property levied on as made in fraud of creditors. Where said judgment has been rendered but not entered upon the Journal as required by law, it is not error to exclude secondary evidence offered in proof thereof.

Error from District Court, Blaine County; before James K. Beauchamp, Judge.

Replevin by Maggie Schmitt against A. S. Bridgford, as sheriff, in which action E. B. Cockrell and another were made parties defendant. Judgment for plaintiff, and defendants bring error. Affirmed.

On March 12, 1902, Maggie Schmitt, defendant in error, plaintiff below, brought this, a suit in replevin, against A. S. Bridgford, sheriff of Blaine county, plaintiff in error, defendant below, in the probate court of that county to recover, as owner, eight head of cows, two two-year-old heifers, eight head of short yearling cattle, and one three-year-old bull, and for one span of mules, one span of bay mares, and two brood sows with ten suckling pigs, in which she claimed a special ownership by virtue of a chattel mortgage made and delivered to her by her husband, Martin Schmitt, on February 26, 1901, to secure a $ 500 note of that date payable to her by him in three years, which had been levied on by the sheriff as the property of said Schmitt under an execution issuing out of the probate court of Blaine county in the case of E. B. Cockrell and W. S. Bradley against said Schmitt, dated November 26, 1901. On the same day, March 12, 1902, an order of delivery issued and placed her in possession of said property, which she has since retained.

On April 14, 1902, plaintiffs in error, E. B. Cockrell and W. S. Bradley, were made parties defendant and entered their appearance.

On August 28, 1902, the case went to trial and resulted in a judgment, in part, for plaintiff, from which she appealed to the district court. On March 20, 1905, trial was had in the district court, and at the close of the testimony on both sides the court directed the jury to return a verdict for plaintiff, which was done and exceptions noted. There was final judgment, motion for a new trial by defendants filed and overruled, and exceptions noted, a petition in error and case-made duly filed in this court, and the case is before us on appeal.

Stephens & Myers, for plaintiffs in error.

Hotchkiss & Emery, for defendant in error.

TURNER, J.

¶1 (after stating the facts as above). In her second amended petition, defendant in error, hereafter called "plaintiff, " included in the same cause of action the property in controversy of which she claimed to be owner, and the property in which she claimed special ownership by virtue of a certain chattel mortgage filed with her petition and marked "Exhibit A" and the first assignment of error made by plaintiffs in error, hereafter called "defendants," is:

"That the court erred in overruling the motion to require plaintiff below to separately state and number the several causes of action in the second amended petition."

¶2 As it is not obvious to us that the petition states more than one cause of action, and as the motion is so general as not to inform us, and as no authority is cited in support of the motion in defendant's brief, we cannot see wherein the court erred in overruling the motion. Ambrose v. Parrott, 28 Kan. 693, citing Gilmore v. Norton, 10 Kan. 491; Kerr v. Reece, 27 Kan. 338. In Grimes v. Cullison, 3 Okla. 268, 41 P. 355, the court said:

"* * * That in the motion to make more definite and certain the 0defendants below failed to point out wherein the petition was indefinite and uncertain, and we do not think, in the absence of such matter in a motion, that the court below committed any error in overruling the same. If the petition be indefinite or uncertain, it is the duty of counsel, in moving to have the same made more definite and certain, to specifically set out wherein they desire relief at the hands of the court; if they fail to so set out in their motion, it is not error to overrule the same."

¶3 The next assignment of error is that "the court erred in overruling the demurrer of defendants below to petition of said plaintiff below." It is urged that "the petition is fatally defective for the reason that it fails to charge anywhere that at the time of the execution of the mortgage Smith was the owner of the property described therein, or that he had any right to mortgage the same." The chattel mortgage is attached to the petition as an exhibit, in which is stated, among other things, that the mortgaged "property is owned entirely by and now in possession of said party of the first part at his home in Lincoln township, Blaine county, Oklahoma * * *." Without passing upon the question as to whether or not the allegations contained in the exhibit should be considered as a part of the petition, in passing upon this demurrer we think it sufficient to say that it is a well-established rule of this court that where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good and states a cause of action, the demurrer should be overruled. Hurst v. Sawyer, 2 Okla. 470, 37 P. 817; City of Guthrie v. Harvey Lumber Co., 5 Okla. 774, 50 P. 84. There can be no doubt that the petition states a cause of action for the property set forth in that paragraph in which the plaintiff claims a general ownership, and for that reason there was no error in overruling the demurrer.

¶4 The next error assigned which we think necessary to notice is: Did the court err in directing the jury to find a verdict for the plaintiff? The record discloses that plaintiff claimed the right of possession to a part of the property in controversy as owner, and as to the other part of special ownership by virtue of a chattel mortgage from her husband. Defendants pleaded a general denial, directed their proof toward establishing title to the property levied on in Martin Schmitt, plaintiff's husband, that it had been conveyed by him to plaintiff in fraud of creditors, and sought to justify the levy under an execution issued against the property of Martin Schmitt. In passing upon this question, it is well to remember "that plaintiff must recover on the strength of his own title." Wells on Replevin, p. 54, citing Easter v. Fleming, 78 Ind. 116; Gallick v. Bordeaux, 31 Mont. 328, 78 P. 583; Hall v. So. P. Co., 6 Ariz. 378, 57 P. 617; Bardwell v. Stubbert, 17 Neb. 485, 23 N.W. 344.

¶5 It might be well to add:

"If the evidence on behalf of plaintiff is sufficient to prove his cause of action, and there is no substantial evidence offered by defendant upon any material issue in the case, it is not error for the trial court to instruct the jury to return a verdict for the plaintiff." ( Irwin v. Dole, 7 Kan. App. 84, 52 P. 916).

¶6 Otherwise stated, the rule is: "Where there is no sufficient evidence of a fact essential to the plaintiff's case or the defendant's affirmative defense, a verdict should be directed." (6 Am. & Eng. Enc. of Law, 686, and cases cited).

¶7 Let us examine the evidence and see whether plaintiff has made a prima facie case, and, if so, what evidence defendants, if any, have adduced to rebut it. The testimony tends to prove that plaintiff was married to Martin Schmitt in Illinois about December 25, 1890; that up to that time she had worked for wages and had saved some $ 187. After her marriage they lived on a farm in that state for about five years, and then moved to Iowa taking with them two cows belonging to her, where, with the money she brought with her and claimed as her separate property, she bought five head of cows and five sows. Shortly after they went to Iowa he bought a farm of 86 acres near Fremont in that state, taking the title in his own name. The stock owned by plaintiff was kept on this place and was sold from time to time, together with its increase, during the last three years of their residence there, plaintiff realizing in all therefrom some $ 650 or $ 700 which she "put in the place." This farm was sold in 1900, and the money derived from the sale of it was deposited in the name of her husband in the bank...