Commercial Discount Co. v. Navel
| Decision Date | 24 September 1963 |
| Docket Number | No. 40105,40105 |
| Citation | 385 P.2d 476 |
| Parties | COMMERCIAL DISCOUNT COMPANY, Plaintiff in Error, v. Carl NAVEL d/b/a Superior Auto Rebuilders, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
Record examined and held: In an action by plaintiff under 42 O.S.1961 § 176, to recover possession of a car to foreclose a chattel mortgage, which is a prior lien, from a person in possession of the car, but not the owner, holding it to protect his lien for services and storage, plaintiff is not entitled to an attorney fee in said action, from the person in possession who would not voluntarily give up possession of the car and who, after the replevin action was filed, made special appearances by motions attacking the service of summons and jurisdiction of the court, but did not ask for affirmative relief and after said motions were denied, filed a disclaimer.
Appeal from the Court of Common Pleas of Tulsa County; Ronney McInerney, Judge.
Appeal by plaintiff from an order of the trial court disallowing an attorney fee in a replevin action by plaintiff for the possession of a car and to foreclose his mortgage lien. The trial court disallowed the attorney fee on ground that defendant filed a disclaimer and did not litigate plaintiff's right to possession. Affirmed.
W. S. Myers, Tulsa, for plaintiff in error.
Frank R. Hickman, Tulsa, for defendant in error.
The parties here will be referred to as they appeared below or by name.
Plaintiff finance company brought a replevin action against defendant on November 8, 1961, to recover possession of a certain 1954 Plymouth Tudor Sedan automobile or its value, $79.88, and $150.00 attorney fee. On the same day a writ of replevin was issued and served on defendant Carl Navel by the sheriff who took possession of the car, and after holding it 24 hours delivered it to the plaintiff. Carl Navel was not the owner of the car but had possession and was holding it to enforce his lien for services and storage.
On November 28, 1961, defendant, by special appearance, filed a motion to quash summons. The motion to quash was confessed December 7, 1961, and an alias summons was issued December 12, 1961. December 27, 1961, defendant, by special appearance, filed motion to quash alias summons and further averred in said motion that the bond as posted with the clerk was invalid and could not be used as a basis for the issuance of the writ of replevin. January 11, 1962, the motion to quash alias summons was overruled and on January 24, 1962, defendant filed a disclaimer.
On March 12, 1962, the trial court rendered judgment in favor of plaintiff for possession of the car and for costs, but disallowed the attorney fee claimed by plaintiff for the reason 'that as a matter of law the plaintiff is not entitled to judgment against the defendant for an attorney's fee in this action because the defendant filed herein a disclaimer * * *.'
From the court's order and judgment, plaintiff gave notice and lodged this appeal. Defendant avers that this Court is without jurisdiction for the reason that plaintiff did not file a motion for new trial. To this we do not agree.
The trial court's refusal to allow an attorney's fee presents here for review an alleged error of law appearing on the face of the judgment roll. The issue tendered is simply that of determining whether an attorney's fee was legally taxable herein as costs under the authority of some statute. See Rogers County Bank v. Cullison, 186 Okl. 373, 98 P.2d 612, Syllabus 2. A motion for new trial is neither necessary nor authorized to submit for review an error of law appearing on the face of the record proper and such error may be presented either by transcript or casemade. See Kellogg v. School District No. 10 of Comanche County, 13 Okl. 285, 74 P. 110.
We hold that this error, advanced on this appeal, was properly presented for review without a motion for new trial.
For reversal, plaintiff calls to our attention 42 O.S.1961 § 176, which provides:
'In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled...
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Poafpybitty v. Skelly Oil Co.
...103, 194 P. 101; Stone v. Clogston, 25 Okl. 162, 105 P. 642; Pure Oil Co. v. Quarles, 183 Okl. 418, 82 P.2d 970; Commercial Discount Co. v. Navel, Okl., 385 P.2d 476, 478; and (3) a motion for new trial is neither necessary nor authorized to present for review errors in entering judgment fo......