Dodder v. Moberly

• Decision Date: 21 March 1911
• Docket Number: Case Number: 547
• Citation: 28 Okla. 334,1911 OK 87,114 P. 714
• Parties: DODDER et al. v. MOBERLY.
• Court: Oklahoma Supreme Court

1911 OK 87

114 P. 714

28 Okla. 334

DODDER et al. v. MOBERLY.

Case Number: 547

Supreme Court of Oklahoma

Decided: March 21, 1911

Syllabus

¶0 1. APPEAL AND ERROR--Review--Changing Theory of Case. Where, in an action by sureties to obtain indemnity against the debt or liability for which they are bound, before it is due, pursuant to Wilson's St. sec. 4722, an attachment is issued and levied on crops as the property of defendant, and the cause is tried on a theory involving the tacit concession that the property attached belonged to defendant, they will not be permitted in this court to obtain a reversal of the judgment upon a theory involving a denial of that fact.

2. ATTACHMENT--Dissolution--Mortgage on Property. Where, on the trial of an interplea, the jury found for the interpleader, in effect, that the property attached was covered by his mortgage; that neither plaintiffs nor the sheriff, before levying the writ, had paid or tendered to him the amount of the debt and interest thereby secured, as provided by Snyder's St. Okla. 1909, secs. 4431, 4432, held, that it was the duty of the court to dissolve the attachment, order the property returned, and tax plaintiffs with the costs of both proceedings.

3. PRINCIPAL AND SURETY--Action by Sureties to Obtain Indemnity. Where, in an action by sureties to obtain indemnity against the debt or liability for which they are bound, before it is due, pursuant to Wilson's St. Okla. sec. 4722, held, that plaintiffs as sureties were not entitled to recover judgment against defendant for the amount of the liability for which they were bound; the same being by them unpaid.

Error from District Court, Custer County; Jas. R. Tolbert, Judge.

Action by Homer R. Dodder and others against W. T. L. Moberly, in which R. J. Shive intervenes. From the judgment, plaintiffs bring error; defendant and intervenor prosecuting a cross-appeal. Reversed, with directions.

Holcombe & Bulow, for plaintiffs in error.

R. J. Shive, for defendant in error and interpleader.

TURNER, C. J.

¶1 On December 30, 1907, Homer R. Dodder and John Smith, plaintiffs in error, sued W. T. L. Moberly, defendant in error, in the district court of Custer county. Their petition substantially states that, on August 31, 1904, defendant entered into a contract of lease with Rufus Gilbert, a Cheyenne Indian, under supervision of an Indian agency, for the S.E. 1/4 of section 8, township 12, range 17, for a term of five years beginning January 1, 1905; that the annual rent reserved was $ 60, payable semi-annually in advance, in addition to which defendant agreed to put as improvements on said land by the end of the third year a three-room house worth $ 350, a well or cistern worth $ 25, and build 320 rods of wire fence worth $ 80, amounting in all to $ 455; that plaintiffs became sureties for defendant for the faithful performance of said contract, which they file as an exhibit to their petition. They charge that defendant has failed, neglected, and refused to make said improvements; that the United States Indian agent has notified them that they are held liable for the faithful performance of said contract, and that they have requested defendant to indemnify them against loss by reason of his failure, which he has refused to do. They allege grounds for attachment, and pray that defendant be required to indemnify them against loss by reason of said suretyship, and upon his failure to do so they have judgment against him for $ 455, and for general relief. At the same time plaintiffs caused an order of attachment to be issued, which was levied on a lot of corn, hay, and cotton, as the property of defendant grown that year on said land.

¶2 On December 30th defendant, after general denial, answered, admitting the lease contract and suretyship; that he had not made the improvements required by the lease, but that his failure so to do was caused by plaintiffs' suit. On the next day he filed a motion to dissolve the attachment on the grounds, among others, that the levy was void, in that:

"The property attempted to be attached is covered by chattel mortgages, and the sheriff nor the plaintiffs have not paid said mortgages, nor deposited the amount due thereon the county treasurer, as required by law."

¶3 --and that the attached property was exempt, as shown by affidavits thereto attached.

¶4 On February 3, 1908, an order of sale issued, the property was sold, and the proceeds, $ 247.35, lodged in the registry of the court.

¶5 On March 3, 1908, Geo. A. Meacham intervened and claimed two-thirds of the proceeds of the property on the ground that he had cultivated the land for the season of 1907 as tenant of defendant, and had raised the crops attached. To this a demurrer was sustained, and Meacham passed out of the case.

¶6 On February 17, 1908, R. J. Shive, defendant in error, interpleaded by leave of court and claimed the attached property by virtue of a chattel mortgage thereon, made, executed, and delivered to him by defendant to secure a debt of $ 75, and duly filed for record prior to the time said order of attachment came into the hands of the sheriff for service, and alleged:

"* * * That neither the sheriff nor the plaintiffs in this case, nor any other person, paid off said indebtedness, nor did they deposit the amount thereof, nor any sum whatever, with the county treasurer before they attempted to attach said property, as the law requires them to have done; that your petitioner has demanded possession of said property from the sheriff, who has refused to deliver same to him."

¶7 --and prayed:

"* * * That the attachment be dissolved, and that said property be restored to the possession of the said R. J. Shive."

¶8 For answer to this interplea, after a general denial plaintiffs admitted the execution and delivery of the said note and mortgage, but denied that the same was prior to their attachment, denied that it covered the crops attached, and alleged that the parties thereto had full knowledge of the attachment at the time it was filed for record.

¶9 Upon the issues thus joined, on March 28, 1908, there was trial to a jury and verdict for plaintiffs, sustaining the attachment; for Shive, intervenor, sustaining his interplea, and finding that the corn and hay...