Eckles v. Busey

• Decision Date: 22 December 1941
• Docket Number: Case Number: 30779
• Citation: 1941 OK 409,132 P.2d 344,191 Okla. 644
• Parties: ECKLES et al. v. BUSEY, Rec.
• Court: Oklahoma Supreme Court

1941 OK 409

132 P.2d 344

191 Okla. 644

ECKLES et al. v. BUSEY, Rec.

Case Number: 30779

Supreme Court of Oklahoma

Decided: December 22, 1941

Syllabus

¶0 1. APPEAL AND ERROR--Conclusivenes of judgment in jury-waived case.

In an action of legal cognizance where a jury is waived and the cause tried to the court, the judgment of the court must be given the same force and effect as the verdict of a jury, and if there is any competent evidence reasonably tending to support the judgment of the trial court, it will not be disturbed on appeal.

2. RECEIVERS--Liability on bond of receiver for failure to account for money coming into his hands.

The bond of a receiver executed pursuant to the provisions of 12 O. S. 1941 § 1553, conditioned for the faithful discharge of his duties as receiver, embraces the duty of accounting for all monies coming into his hands by virtue of his office, and a showing of an omission to perform such duty is sufficient to fix liability against the sureties upon said bond.

Appeal from District Court, Hughes County; Tal Crawford, Judge.

Action by Clyde Busey, receiver of J. A. Pringle and another, copartners, against George R. Eckles, T. S. Adams, and G. C. Eaton. Judgment for plaintiff, and defendants Eckles and Adams appeal. Affirmed.

Orr & Woodford and Harold Skinner, all of Holdenville, for plaintiffs in error.

C. H. Baskin, of Holdenville, for plaintiff in error T. S. Adams.

George W. Oliphant and W. C. Hall, both of Holdenville, for defendant in error.

OSBORN, J.

¶1 This action was instituted in the district court of Hughes County by Clyde Busey, receiver, hereinafter referred to as plaintiff, against G. C. Eaton, George R. Eckles, and T. S. Adams. Plaintiff sought recovery upon a receiver's bond theretofore executed by Eaton as principal and Eckles and Adams as sureties. Defendant Eaton made no appearance in the action and default judgment was entered against him. Issues were joined between plaintiff and defendants Eckles and Adams, a jury was waived, the cause was tried to the court, and a judgment was entered in favor of plaintiff, from which the defendants Eckles and Adams have appealed.

¶2 It is shown that on April 20, 1934, there was a cause pending in the district court of Hughes county numbered 9042, styled J. A. Roberts, Plaintiff, versus J. A. Pringle and John W. Marshall, Copartners, Defendants. On said date defendant Eaton was appointed receiver of certain properties of the defendants in that action and was instructed to sell said properties to satisfy a judgment indebtedness. It was further ordered that he execute a bond in the sum of $2,000 conditioned as provided by law.

¶3 The bond was duly prepared, executed, and filed bearing the signatures of defendant Eaton as principal and defendants Eckles and Adams as sureties.

¶4 On April 1, 1938, an order was entered in cause No. 9042 surcharging the receiver with the sum of $2,191.55. The plaintiff herein had previously been appointed receiver, supplanting defendant Eaton in that capacity. On February 16, 1939, the court directed plaintiff to institute an action against defendant Eaton and the sureties upon his bond for recovery of the sum of $2,000, the amount of the bond. Plaintiff instituted said action on November 21, 1939.

¶5 12 O. S. 1941 § 1553, is as follows:

"Before entering upon his duties, the receiver must be sworn to perform them faithfully, and with one or more sureties, approved by the court or judge; execute an undertaking to such person and in such sum as the court or judge shall direct, to the effect that he will faithfully discharge the duties of receiver in the action, and obey the orders of the court therein."

¶6 The condition of the bond in the instant case is as follows:

"Now, therefore, the condition of this obligation is such that if the said G. C. Eaton shall faithfully discharge the duties of his trust as such receiver, and otherwise perform the duties of his office in all things according to the true intent and meaning of said order and obey the orders of the court, then this obligation shall be void; otherwise, to be in full force and effect."

¶7 Defendants, as sureties on the bond, entered separate defenses. Defendant Adams contends that he did not sign the bond and that his signature thereon was a forgery. The evidence on this point was conflicting. In support of his own testimony defendant offered the testimony of expert witnesses to the effect that in their respective opinions the signature on the bond was not genuine. Plaintiff submitted the evidence of a notary public who qualified both of the sureties upon the bond. The original bond was presented in evidence as well as a number of other documents and papers bearing signatures of defendant Adams on which the signatures were admittedly genuine. The last named papers were admitted for the sole purpose of comparing the admittedly genuine signatures with the questioned signature upon the bond. All of said papers were incorporated in the case-made, and have been examined by us. It is generally recognized that "proof of the genuineness...