First Bank of Texola v. Terrell

Decision Date08 December 1914
Docket NumberCase Number: 3492
PartiesFIRST BANK OF TEXOLA v. TERRELL.
CourtOklahoma Supreme Court
Syllabus

¶0 1. ATTACHMENT--Motion to Dissolve -- Objection -- Waiver. Where there has been a trial, and no objection has been made to the sufficiency of a motion or affidavit to dissolve an attachment, either by demurrer or motion, an objection to the introduction of evidence in support of the motion, on the ground that it does not put in issue or traverse the grounds laid in the affidavit for attachment, will be sustained only when the allegations of the traversing affidavit wholly fail to deny the grounds of attachment.

2. SAME--Traversing Affidavit--Sufficiency. Where the traversing affidavit is in the conjunctive, and is laid in the present tense, its legal sufficiency should be tested either by motion or demurrer, and not alone by mere objection to the introduction of testimony.

3. PLEADING--Defense--Estoppel-- Waiver. While, as a general rule, estoppel or waiver must be pleaded, failure to do so may be waived by plaintiff by proceeding with the trial of the case without objection, as though the defense relied on had been pleaded.

4. FRAUDULENT CONVEYANCES -- Bulk Sales -- Compliance With Statute--Right to Object--Waiver. Where the owner of a stock of merchandise, in good faith, and for a fair consideration placed in escrow during the consummation of a transfer of such stock, proceeds to comply with the provisions of the Bulk Sales Act (section 2903, Rev. Laws 1910), and furnishes a list of his creditors to the representative of the purchasers, which list complies substantially with the requirements of the statute, but where the notice given the creditors was signed by the transferror instead of the transferees, a resident creditor, who receives such notice with knowledge of all the facts connected with the proposed sale, and who assents thereto, waives any objection he might otherwise have to a strict compliance with the statute, and is estopped from thereafter, and within the ten-day period named in the statute, attaching the stock of goods, on the ground that the seller has not fully complied with the statute.

T. Reginald Wise, for plaintiff in error.

Echols & Merrill, for defendant in error.

SHARP, C.

¶1 On January 31, 1911, the plaintiff bank brought its action in the district court of Beckham county, to recover judgment of the defendant, Terrell, in the sum of $ 3,500, together with interest and attorney fees, and at the same time procured the issuance of an order of attachment, under authority of which a levy was subsequently made upon a stock of merchandise alleged to be the property of said defendant, Terrell, and at the time located in the town of Texola. Thereafter the said defendant filed his verified motion to discharge the attachment, which upon trial was sustained by the court. Said order discharging the attachment being excepted to, plaintiff has brought the case to this court for review. The affidavit for attachment charged two grounds: (1) That the defendant is about to convert his property or a part thereof into money for the purpose of placing it beyond the reach of his creditors; (2) that the defendant has assigned, removed, or disposed, of, or is about to dispose of, his property or a part thereof, with the intent to defraud, hinder, or delay his creditors. It is urged with much ability that the traversing affidavit of the defendant is insufficient, and did not deny both or either of the grounds for attachment, on account of the fact that the denial was in the conjunctive, and was laid in the present tense. The only objection made at the trial to the sufficiency of the traversing affidavit was upon the introduction of evidence, and arose as follows: The case coming on to be heard on motion to discharge the attachment, counsel for defendant requested the court to order and direct that the burden of proof under the pleadings was on the plaintiff. This the court refused to do, but, on the other hand, held that, under the allegations of the motion, the burden of proof was upon the defendant, and so ordered. Upon the defendant being placed upon the stand and interrogated by his counsel, plaintiff's counsel made the following objection:

"Comes now the plaintiff and objects to the introduction of any oral testimony in this action on the part of the defendant for the reason that the motion to dissolve the attachment is not verified, and does not put in issue any facts, and for the further reason that oral testimony is not admissible on the part of the defendant."

¶2 No other form of objection to the sufficiency of the motion to dissolve the attachment was at any time offered. Ordinarily when an attachment is procured by a plaintiff, and the defendant moves to dissolve it on any legal grounds, and supports his motion by affidavit as here, the burden of proof rests upon the plaintiff to maintain the ground of attachment as laid in his affidavit, by the preponderance of the evidence. Williams v. Farmers' Grain & Gin Co., 13 Okla. 5, 73 P. 269; Dunn v. Claunch et al., 13 Okla. 577, 76 P. 143. The question of testing the legal sufficiency of a pleading by an objection to the introduction of evidence has frequently been before this court, and the rule is well established that, where the sufficiency of a pleading is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the court, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law. Marshall v. Homier et al., 13 Okla. 264, 74 P. 368; First Nat. Bank v. Cochran, 17 Okla. 538, 87 P. 855; Hogan et al. v. Bailey, 27 Okla. 15, 110 P. 890; M., O. & G. Ry. Co. v. McClellan, 35 Okla. 609, 130 P. 916; Johnston et al. v. Chapman, 38 Okla. 42, 131 P. 1076; Abbott et al. v. Dingus, ante, 145 P. 365. The same rule has been observed by the Supreme Court of Kansas in a long line of decisions, among which are Mitchell v. Milhoan, 11 Kan. 617; Union Street R. Co. v. Stone, 54 Kan. 83, 37 P. 1012. It is obvious that it was the purpose of the motion to put in issue the grounds of attachment, as alleged in plaintiff's affidavit; and though it be doubtful if the motion be technically sufficient, had it been attacked by demurrer or motion, yet when the only objection that was made to its sufficiency was raised in the manner indicated, and where, in addition, the court ordered the defendant to assume the burden of proof upon the attachment issue, it is obvious that no reversible error was committed. In Barkley et al. v. State, 15 Kan. 99, it was held that where the question of the sufficiency of a petition is raised for the first time by an objection to the introduction of any evidence under it, and not raised otherwise, the courts will always construe the allegations of a petition very liberally, so as to sustain the petition if it can be sustained; and if anything should intervene between the filing of the petition and the final rendering of the judgment, which could by a fair and reasonable intendment be construed to cure the defective allegations of the petition, the courts will hold that such defective allegations are thereby cured. In the course of the opinion the court said:

"But even if correct, and the allegations necessary, still the defective allegations of the petition were cured by the evidence, findings, and judgment."

¶3 Treating the traversing affidavit as containing a negative pregnant, the rule announced would apply with equal force; it not appearing that plaintiff had been misled to its injury on account of the manner in which the denial had been drawn. Hershey v. O'Neill (C. C.) 36 F. 168; 31 Cyc. 203. Obviously the action of the court in overruling the plaintiff's objection did not constitute error. Did the court err in entering judgment dissolving the attachment? This is the sole remaining question for our consideration. Prior to the date of the controversy between the parties hereto, the defendant in error, Terrell, was the owner of a stock of merchandise in the town of Texola, and in January, 1911, it appears, was financially embarrassed, though not insolvent. His indebtedness was owing largely to various mercantile houses and to the First Bank of Texola. Various plans for raising funds with which to pay off or reduce his indebtedness having failed, in said month of January, one Ernest H. Maupin, credit man of Blair-Hughes & Co., one of Terrell's creditors, procured a firm of merchants, named Dugger & Cotton, to purchase the Terrell stock of merchandise at the agreed price of 66 2-3 cents on the dollar. The stock was invoiced and notices sent out to Terrell's creditors in an attempt to comply with the bulk sales statute (section 2903, Rev. Laws 1910), one of the notices having been sent to and received by the bank. The form of notice addressed to the creditors, besides being signed by the transferror, was in other respects informal, and...

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10 cases
  • First Bank of Texola v. Terrell
    • United States
    • Oklahoma Supreme Court
    • 8 Diciembre 1914
  • Riddle v. Bishop, Case Number: 28181
    • United States
    • Oklahoma Supreme Court
    • 3 Mayo 1938
    ...by plaintiff, by proceeding With the trial of the ease without objection, as though the defense had been pleaded. First Bank of Texola v. Terrell (1915) 44 Okla. 719. 145 P. 1140, and Winter v. Harvell (1935) 175 Okla. 315, 52 P.2d 717. The evidence respecting the defense of the sheriff tha......
  • Mcmillan v. Wright
    • United States
    • Oklahoma Supreme Court
    • 16 Octubre 1923
  • Coleman v. Costello
    • United States
    • Kansas Supreme Court
    • 9 Febrero 1924
    ... ... (Lanphear v ... Ketcham, 53 Kan. 799, 37 P. 119; Bank v ... Chatten, 69 Kan. 435, 77 P. 96.) On the other hand, our ... own ... violation of the bulk-sales act ... The ... case of First Bank of Texola v. Terrell, 44 Okla ... 719, 145 P. 1140, is not out of ... ...
  • Request a trial to view additional results

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