Dunn v. Claunch

• Decision Date: 03 September 1904
• Citation: 78 P. 388,15 Okla. 27,1904 OK 90
• Parties: DUNN et al. v. CLAUNCH et al.
• Court: Oklahoma Supreme Court

78 P. 388

15 Okla. 27, 1904 OK 90

DUNN et al. v. CLAUNCH et al.

Supreme Court of Oklahoma

September 3, 1904

Syllabus by the Court.

1. Where a motion for judgment on the pleadings is sustained and judgment rendered in favor of one of the parties, the other may appeal to this court, and have the judgment reviewed, without filing a motion for a new trial.

2. In an action on a forthcoming bond, an unverified general denial admits the execution of the bond, but puts in issue an allegation in the petition to the effect that the property was delivered to the defendant when the bond was approved by the sheriff, and also puts in issue an allegation that the defendant had removed the attached property from the territory, and failed to surrender it to be sold to satisfy the judgment pursuant to the terms of the bond.

Error from District Court, Greer County; before Justice Frank E Gillette.

Action by N. B. Claunch and others against J. F. Dunn and others. Judgment for defendants. Plaintiffs bring error. Reversed.

Shartel Keaton & Wells, for plaintiffs in error.

Garrett & Garrett, for defendants in error.

BURWELL J.

This is an action to recover on a forthcoming bond given in an attachment suit. The plaintiffs recovered judgment, and the attachment was sustained, and it is alleged in the petition in this case that when the bond was executed by the defendants and approved by the sheriff the attached property was delivered to the defendant J. F Dunn, who was the attachment debtor, and by him removed to the state of Texas and that the sheriff to whom the order of sale was issued returned the same with the indorsement thereon "No property found," and that the defendants have failed to surrender the attached property to answer to the judgment although due and legal demand was made for the same. The defendants filed an unverified general denial. Judgment was rendered by the court in favor of the plaintiffs on the pleadings, from which action of the court the makers of the bond appeal; but the appellees contend that this court cannot review the action of the lower court, because no motion for a new trial was filed. No evidence was introduced on the trial, and, in our opinion, it was not necessary to file a motion for a new trial. The error, if any, appears from the judgment roll. The trial court evidently had in mind the rule that the execution of a written instrument must be denied under oath, but it also...