Farris v. Castor

• Decision Date: 16 January 1940
• Docket Number: 29141.
• Citation: 99 P.2d 900,186 Okla. 668,1940 OK 7
• Parties: FARRIS v. CASTOR.
• Court: Oklahoma Supreme Court

99 P.2d 900

186 Okla. 668, 1940 OK 7

FARRIS v. CASTOR.

No. 29141.

Supreme Court of Oklahoma

January 16, 1940

Rehearing Denied Feb. 27, 1940.

Application for Leave to File Second Petition for Rehearing Denied March 12, 1940.

See Words and Phrases, Permanent Edition, for all other definition of "Levy."

Syllabus by the Court.

1. When a defendant interposes a demurrer to the evidence of the plaintiff, he thereby admits the truth of all of plaintiff's evidence as well as all inferences and conclusions that may be reasonably and logically drawn therefrom.

2. When a constable who has an execution in his hands to be levied upon the personal property of a judgment debtor, takes charge of a place of business by virtue of the authority of the writ, and intends to and does take control of the merchandise and fixtures therein, and actually handles them in making an inventory, and moves them out of the customary places, he has seized such personal property sufficient to constitute a levy; and, if such personal property is the property of a third person, and is not the property of the judgment debtor the seizure and levy are wrongful.

3. Where a constable makes a wrongful levy of a writ of execution upon property claimed by a third party, and the judgment creditor, with knowledge of the facts, defends the act of the constable and contests the right to the property with the third party, the judgment creditor will be held to have ratified the acts of the constable and to be liable to the third party in damages if it is adjudged that the third party is the owner of the personal property.

Appeal from District Court, Oklahoma County; Clarence Mills, Judge.

Action by Effie Farris against Mrs. Beatrice Castor to recover damages for levy of execution on certain personalty of the plaintiff as the property of another. From an adverse judgment, the plaintiff appeals.

Judgment reversed, and cause remanded for further proceedings.

Mathers & Mathers and Bob Howe, all of Oklahoma City, for plaintiff in error.

Chandler Shelton & Fowler, John W. Swinford, and Edgar S. Vaught, Jr., all of Oklahoma City, for defendant in error.

BAYLESS Chief Justice.

Effie Farris appeals from the ruling of the District Court of Oklahoma County sustaining a demurrer to her evidence, introduced in an effort to recover damages against Beatrice Castor.

Castor had a judgment in a justice of the peace court of Oklahoma County against Joe Farris, the father of Effie. An execution was issued on the judgment and levied upon certain personal property, as the property of the judgment debtor, but which was later found to be the property of Effie. Effie then procured the release of the property and sued for damages. At the close of the plaintiff's evidence the defendant demurred and the demurrer was sustained.

We are of the opinion the trial court erred in sustaining the demurrer. Plaintiff has assigned a number of errors, but only argues two propositions. These are rather broad in their scope and the defendant's answer to them is likewise. Plaintiff argues that it was error to sustain the demurrer, and we have said we agree.

The consideration we give the record is governed by the rule stating the effect of a demurrer. When a defendant interposes a demurrer to the evidence of the plaintiff the defendant thereby admits the truth of all the evidence introduced by the plaintiff and all inferences and conclusions which may be reasonably and logically drawn from the evidence introduced. Section 359, O.S.1931, 12 Okl.St.Ann. § 577, subdivision 3, and cases annotated under notes 11-40.

The evidence disclosed this: That plaintiff rented a lot and paid for the erection thereon of a small building, and bought and paid for the merchandise. She took the necessary licenses in her name, and paid the sales taxes. The neighboring businessmen understood she was owner. The constables went to the place of business armed with the execution and found plaintiff's father in charge, and asked to see the owner, and the father thereupon represented himself as such. As soon as he was apprised of the visitors' official position and their purpose, he changed his position with reference to the ownership of the store. The constables thereupon assumed charge of the place and began and completed an inventory of the stock of merchandise and fixtures. In the meantime, plaintiff appeared and represented herself to the constables as the owner and demanded they desist. Upon their refusal, she left and returned with her attorney. Several persons became interested and came in or were called, and advised the constables that the daughter and not the father was the owner. The constables communicated the news of the levy to defendant, and she agreed to send a truck to haul the goods levied upon away. The constables also advised the justice from whose court the writ issued, and after the officers had been in charge for some two or three hours they left. There was considerable testimony pro and con as to whether the constables permitted sales during the time they were in charge, and their version is they did, but insisted upon the proceeds being deposited in the cash drawer. Some proceedings were then had in the justice of the peace court, with plaintiff herein as intervenor, wherein it was determined that plaintiff was the owner of the property seized. The trial judge refused to admit in evidence these proceedings. We do not know whether he did so on the theory they were inadmissible on some rule of evidence or because the plaintiff seemed to admit the judgment there was not binding and conclusive.

The journal entry of judgment does not disclose the precise points in the trial judge's consideration in deciding the evidence was insufficient to sustain the plaintiff's cause of action. The judge did address certain remarks to the jury in explanation of why he adjudged the evidence insufficient. There is some reference in the record and briefs to these remarks being findings of fact and conclusions of law, although they are not incorporated in the record as such. These remarks are no part of the judgment and are not binding upon us in our endeavor to define the factors involved in the trial judge's decision; but they are useful to us insofar as they indicate any of the notions entertained by the trial judge.

From one of the remarks the trial judge entertained the view that no levy was made. He said, "When it was called to their (the constables) attention that somebody else claimed to be the owner of it, they quit and left the property substantially the same as it was. They did not take the keys to the place; they did not take any of the property. They went off and left it in the hands of these people. There is no evidence here to show that the defendant, Mrs. Castor, who had the judgment, had any direction at all over the activities of these constables. That does not constitute a levy in contemplation of law. The possession of the plaintiff here, if she is the owner of the property, was not in any manner substantially disturbed by any act of this defendant, under this evidence."

It can be seen that the court doubted the evidence was sufficient to justify...