Dematte v. Clark

• Decision Date: 22 October 1935
• Docket Number: Case Number: 25967
• Citation: 50 P.2d 342,1935 OK 1007,174 Okla. 297
• Parties: DEMATTE et al. v. CLARK, Sheriff
• Court: Oklahoma Supreme Court

1935 OK 1007

50 P.2d 342

174 Okla. 297

DEMATTE et al. v. CLARK, Sheriff

Case Number: 25967

Supreme Court of Oklahoma

Decided: October 22, 1935

Syllabus

¶0 1. Evidence -- Fact of Owership -- Statement of Conclusion.

Ownership of personal property is ordinarily a simple fact to which a witness having the requisite knowledge may testify directly, and on cross-examination such witness may be required to state the particular facts upon which such assertion based.

2. Same.

The modern notion of admissibility of evidence is that it is more important to get the truth than to quibble over impractical distinctions. While in a very strict sense it may be giving a conclusion for the owner to say that he is the owner of a chattel or chose in action, if he is mistaken, it may be shown on cross-examination. Almost any answer might, when dissected with the scalpel of precise mental philosophy, be deemed wholly or partly a conclusion. (Whitman v. Brett, 106 Okla. 96, 233 P. 195.)

3. Appeal and Error--Rewiew of Equity Case--Insufficiency of Evidence--Disposition of Cause.

In an action of purely equitable cognizance, where it appears that the court failed to consider the uncontradicted, competent evidence, or that the finding and decree are clearly against the weight of the evidence, this court will consider the entire record, weigh the evidence, and cause to be rendered such judgment as the trial court should have rendered, or reverse the judgment and remand the cause for new trial.

4. Execution--Validity of Sheriff's Sale of Personalty--Claim of Title by Judgment Debtor's Wife Through Furnishing Money for Purchase at Sale--Alias Execution Against Property.

Where judgment debtor's personal property, at sheriff's execution sale thereof, is ostensibly sold to a third party, but immediately thereafter the judgment debtor's wife claims title thereto, on the ground that she furnished the money for the third party's purchase at the sale, such claim of ownership will be looked upon with suspicion when it is again sought by the judgment creditor to satisfy the remainder of his judgment by way of alias execution against said property.

5. Same--Action to Enjoin Sheriff's Sale on Alias Execution--Judgment for Defendant not Sustained.

Though the situation described in the preceding syllabus is to be regarded with suspicion, it is not sufficient, standing alone, to sustain a judgment in favor of the defendant sheriff, in an action brought by the wife to enjoin the sheriff's contemplated sale on the alias execution.

Appeal from District Court, Coal County; P. L. Gassaway, Judge.

Injunction action by Ralph DeMatte and Lydia Clellan against W. B. Clark, Sheriff of Coal County. Judgment for defendant, and plaintiffs appeal. Reversed and remanded.

E. Moore, for plaintiffs in error.

I. L. Cook and Wm. Rowe Cook, for defendant in error.

PHELPS, J.

¶1 This is an action to enjoin the defendant sheriff from conducting an execution sale of certain personal property allegedly belonging to plaintiffs. The plaintiffs appeal from a judgment for defendant. They contend that the judgment is contrary to the law and evidence.

¶2 The plaintiff DeMatte did not testify. The plaintiff Lydia Clellan testified that she owned the personal property in question and that she acquired the property through a sheriff's sale which had taken place in the preceding January; that plaintiff DeMatte, her business associate, bid in the property for her at that sale, that she furnished the money, and that she and DeMatte were still the owners of the property. On this point her testimony varied somewhat from the allegations in the petition, in that the petition alleged DeMatte purchased the property at the sheriff's sale, and she subsequently purchased a half interest therein from DeMatte. Although counsel for defendant cross-examined the witness as to this discrepancy, he did not object to the introduction of the evidence on the ground that it was at variance with the pleadings. We do not attach particular importance to the question of whether Mrs. Clellan owns a half interest or the entire interest, or whether, on the other hand, DeMutte owns the entire interest, since both of them were parties plaintiff and if either owned any fractional interest the issues here would be the same. The plaintiff Clellan further testified that the sheriff was attempting to sell the property. The defendant did not present any evidence except the judgment which was the basis of the execution which he was attempting to levy on the property in suit. The judgment debtor therein was plaintiff Clellan's husband. There was no evidence that plaintiff's husband had any present interest in the property, fractional or otherwise.

¶3 From those facts, it appears evident that the injunction should have been granted. The defendant advances the argument that the court was justified in refusing the relief, on the ground that there was a variance between the allegations and the proof. Yet the proof was admitted without objection by the defendant, and, as hereinbefore observed, the variance is not serious.

¶4 The defendant also contends that when the plaintiff testified that she "owned" the property she was merely expressing a conclusion, and that her statement was no evidence whatsoever of that fact. While it would have been more satisfactory to offer in evidence the execution and return of sale, under which she or DeMatte derived title, we cannot say, in the light of previous decisions of this court, that a witness's statement that he is the owner of personal property is a mere conclusion.

¶5 In Jantzen v. Emanuel German Baptist Church, 27 Okla. 473, 112 P. 1127, Annotated Cases 1912C, 659, this question...