Farmers State Bank of Newkirk v. Hess

• Decision Date: 09 April 1929
• Docket Number: Case Number: 18950
• Citation: 138 Okla. 190,280 P. 305,1929 OK 158
• Parties: FARMERS STATE BANK OF NEWKIRK v. HESS et al.
• Court: Oklahoma Supreme Court

1929 OK 158

280 P. 305

138 Okla. 190

FARMERS STATE BANK OF NEWKIRK v. HESS et al.

Case Number: 18950

Supreme Court of Oklahoma

Decided: April 9, 1929

Syllabus

¶0 1. Appeal and Error--Review--Sufficiency of Evidence to Support Verdict.

In a law action tried to a jury, this court is without authority to review the evidence further than is necessary to determine whether or not there is any competent evidence reasonably tending to support the verdict of the jury.

2. Same--Question not Presented by Motion for New Trial Where no Demurrer to Evidence nor Motion for Instructed Verdict.

Where the sufficiency of the evidence is questioned neither by a demurrer nor by asking for an instructed verdict, the question whether there is any evidence reasonably tending to support the verdict is not presented for review by a motion for new trial.

3. Attachment--Damages to Claimant--Election as to Measure of Value by Acquiescing in Court's Instruction.

Where there is nothing in the record to indicate a formal election, and the court instructs the jury as to the value of the property at the date of the attachment and gives no instruction as to the price at which an equivalent thing might have been bought, with reasonable diligence, in the market nearest to the place where the property was attached, and the instruction is accepted by the claimant without objection, it constitutes an election as to the measure of value to be claimed.

4. Same--Issues Between Plaintiff and Interpleader Claiming Property Attached--Right of Interpleader to Damages.

Where any person claiming property, money, effects or credits attached, interpleads in the cause, as provided for in section 229, C. O. S. 1921, and issues are made upon such interpleader, such issues shall be tried as like issues between plaintiff and defendant, and where the issues involve the ownership and the right to the immediate possession of the specific personal property attached, the action partakes of the nature of an action in replevin, and where the proof shows that the attached personal property has been sold upon the application of plaintiff without consent of the interpleader and upon order of the court prior to the trial of the issues in said cause, and upon the trial the interpleader prevails, then his right of recovery is the value of the property attached and damages for taking and withholding the same.

5. Same--Measure of Damages.

In estimating damages, the value of the property to the owner thereof deprived of its possession is the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase. Myers v. Hubbard et al., 80 Okla. 97, 194 P. 433.

Error from District Court, Kay County; W. E. Rice, Judge.

Action by the Farmers State Bank of Newkirk on notes, with attachment levied on certain personal property. Mary A. Hess and another filed interpleas, claiming the property attached. Judgment for interpleaders, and plaintiff brings error. Affirmed.

C. L. Pinkham, H. S. Burke, and J. H. Hill, for plaintiff in error.

G. A. Chappell, for defendants in error.

ANDREWS, J.

¶0 The plaintiff in error, as plaintiff below, filed two certain suits to recover judgments on a number of promissory notes. In each case there was an attachment of certain property consisting of crops in field. In each case the defendants in error filed interpleas claiming ownership of the property attached and praying that the attachment be dissolved as to the property claimed by them and that said property be discharged from said attachment and for their costs. While the interpleas were undisposed of plaintiff filed an application for the sale of the property as perishable property, and on an ex parte hearing without notice to interpleaders a sale was ordered.

¶1 The two cases were consolidated, tried together to a jury, and the jury returned a verdict in favor of each of the interpleaders, fixing the amount of recovery of each. Judgment was rendered in favor of the interpleaders on the verdict, and after motion for new trial was overruled the cause was brought here for review on three propositions:

First. That the court erred in overruling motion of plaintiff for new trial.

Second. That the court erred in admitting incompetent, irrelevant, and immaterial evidence on the part of the defendants in error over the objection of the plaintiff in error.

Third. That the court erred in giving instruction No. 4, relative to the measure of damage and the amount thereof.

¶2 In support of the first proposition plaintiff in error contends that there was error in refusing to grant a new trial by reason of the error in the assessment of the amount of recovery, and that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.

¶3 The interpleaders offered evidence as to the value of the property. The plaintiff in error offered none, but contented itself with its theory that the interpleaders were not the owners of the property. The court is without authority to review that evidence further than to determine whether or not there is any competent evidence reasonably tending to support the verdicts of the jury. City of Pawhuska v. Button, 123 Okla. 61, 251 P. 1001.

¶4 The plaintiff in error neither demurred to the evidence of the interpleaders nor asked for an instructed verdict.

"Where plaintiff submits his case to the jury without demurring to the evidence or asking an instructed verdict, or otherwise legally attacking its sufficiency, the question whether there is any evidence reasonably tending to support the defense, is not presented for review by plaintiff's motion for a new trial." Myers v. Hubbard et al., 80 Okla. 97, 194 P. 433.

¶5 There is competent evidence tending to support the verdict of the jury, and its sufficiency not having been attacked, the verdicts must stand.

¶6 The plaintiff in error discusses its second and third propositions together, and claims error of law and that the verdicts of the jury are contrary to law.

¶7 An examination of the evidence discloses that there was no evidence admitted over the objection of the plaintiff in error sufficient to warrant this court in reversing this cause. The only evidence over which there is any question is that with reference to the value of the property. The court permitted a witness to testify as to the market price of this kind of grain on the date the property was taken under attachment on October 13, 1924, and the highest market price thereof from the date of the attachment to the 25th day of February, 1925.

¶8 The trial was had on the 7th day of May, 1927. That evidence could not have been with reference to the rule of damage for conversion of personal property. It was undoubtedly offered and admitted under section 6009, C. O. S. 1921, which is as follows:

"In estimating damages, except as provided by the two following sections, the value of property to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing, in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded as would suffice, with reasonable diligence, for him to make such a purchase."

--as construed in Barse Live Stock Co. v. McKinster et al., 10 Okla. 708, 64 P. 14.

"In our Civil Code, under the article entitled 'Replevin,' it is provided, sec. 4063, Stat. 1893:

"'In an action to recover the possession of personal property, judgment for the plaintiff may be for the possession or for the recovery of possession, or for the value thereof, in case a delivery cannot be had, and of damages for the detention. If the property has been delivered to the plaintiff and the defendant claim the return thereof, judgment for the defendant may be for the return of the property or for the value thereof, in case a return cannot be had, and damages for the taking and withholding of same.'

"This section of the statute would in the case at bar entitle the defendants to a return of the property, or the value thereof in case a return cannot be had, and damages for the taking and withholding of same. In any case of replevin, where the property cannot be returned, there are two distinct elements of damages recoverable: First, the value of the property, and, second, the damages for the taking and detention thereof. It is only the first element of damages, viz., the value of the cattle, that is in controversy in this case. But it will be observed that the provision of the Civil Code quoted, supra, does not fix the time at which such value must be determined. Hence the inquiry is, to what time must the proof of value be directed and confined? This question is answered by section 2650, Stat. 1893, found under the title, 'Measure of Damages,' and which is as follows: "'In estimating damages * * * the value of property to a buyer or owner thereof, deprived of its possession, is deemed to be the price at which he might have bought an equivalent thing in the market nearest to the place where the property ought to have been put into his possession, and at such time after the breach of duty upon which his right to damages is founded, as would suffice, with reasonable diligence, for him to make such purchase.'

"The application of this rule to the case under consideration is not difficult. The defendants were the owners of the calves; they were deprived of possession by the plaintiff, and were so deprived at the time the cattle were taken under the writ of replevin. The right of the defendants to damages is founded upon this taking. The value of the animals to them and they are entitled to recover in this cause, is the price at which they might have bought

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