First Nat. Bank v. Knight

• Decision Date: 20 September 1927
• Docket Number: 17168.
• Parties: FIRST NAT. BANK OF DRUMRIGHT v. KNIGHT et al.
• Court: Oklahoma Supreme Court

259 P. 565

127 Okla. 20, 1927 OK 295

FIRST NAT. BANK OF DRUMRIGHT v. KNIGHT et al.

No. 17168.

Supreme Court of Oklahoma

September 20, 1927

Syllabus by the Court.

Where judgment of the trial court is reasonably supported by the evidence, such judgment will not be disturbed on appeal.

Under garnishment proceedings, after judgment, when an execution shall have been returned unsatisfied (section 753, C. O. S 1921), no notice of such proceedings or summons therein are required to be given the judgment debtor, unless the judge of the court where proceedings are pending shall in his discretion deem it necessary to a proper determination of the rights of all parties interested and shall so order.

Additional Syllabus by Editorial Staff.

In garnishment proceedings, evidence that drilling tools, levied on under execution and sold, belonged to chattel mortgagee held to warrant setting aside sale.

Commissioners' Opinion.

Appeal from District Court, Okmulgee County; James Hepburn, Judge.

Action by the First National Bank of Drumright against Orville Knight, in which the G. & G. Drilling Company, a copartnership, was garnished, and in which Anna Knight intervened as claimant of garnished property. From a judgment setting aside a sale of garnished property and vacating the garnishment, plaintiff appeals. Affirmed in part, and reversed in part, with direction.

S. A Denyer, of Drumright, and Hughes, Foster & Elinghausen, of Sapulpa, for plaintiff in error.

A. E. Graham, of Okmulgee, for defendants in error.

LEACH C.

Parties herein will be referred to as they appeared in the trial court. On June 16, 1924, in the district court of Okmulgee county, the First National Bank of Drumright, as plaintiff, after personal service of summons upon defendant, obtained a default judgment against Orville Knight, defendant, for the sum of $2,525.39 due on promissory note, and for foreclosure of a chattel mortgage. On July 22, 1924, an execution was issued upon said judgment directed to the sheriff of Okmulgee county, which execution shows to have been returned by the sheriff of the said county upon the same date of its issuance, showing "no property found." On July 24, 1924, plaintiff by its attorney filed in said cause an affidavit stating, in substance, that defendant was justly indebted to plaintiff in the sum of $2,525.39 over and above all offsets; that affiant verily believes the G. & G. Drilling Company, a copartnership, is indebted to and has property belonging to the defendant, and that defendant has no property subject to execution sufficient to satisfy plaintiff's demand and indebtedness, the said property being to the best knowledge and belief of affiant not exempt by law from seizure and sale upon execution. Pursuant to which affidavit a statutory form of garnishment summons was issued and served on the garnishee in Creek county. Whereupon the garnishee filed an answer on August 4, 1924, admitting its indebtedness to defendant in the sum of $1,150, which sum was paid in by it to the court clerk and by the court clerk paid to the plaintiff. On July 24, 1924, an execution was issued on the said judgment directed to the sheriff of Creek county, under which execution, as shown by the service return, an undivided one-third interest in the partnership G. & G. Drilling Company was levied upon and sold as the property of the defendant Orville Knight, to the plaintiff, for the sum of $100.

Thereafter the defendant filed his motion to set aside the said sheriff's sale, and on the same date Anna Knight, wife of the defendant, filed in the cause her motion to intervene, alleging that the property sold under the execution belonged to her and was not the property of the execution debtor, that the sale proceedings and levy were void, and asked that she be heard and permitted to introduce testimony to show proceedings and sale under execution were void. On July 16, 1925, Orville Knight, defendant, filed a motion in said cause in which he says he is appearing for the purpose of the motion only, and moved the court to vacate, set aside, and hold for naught the garnishment summons issued, in said cause, for the reason the same was not issued, served, and returned according to law, that the same had never been served upon him, and that the court did not acquire jurisdiction over the subject-matter by reason of said garnishment. Anna Knight likewise by leave of the court, filed her separate motion alleging the property and funds garnished to be her funds and property; that the garnishment proceedings were void, no garnishee service having been had on the defendant; that the moneys garnished had been paid to plaintiff without any order of the court, and prayed the court to order the moneys repaid to the court clerk, and that the clerk be ordered to pay the same to her. Thereafter a hearing was had upon said motions by the court. Upon which hearing and evidence introduced, the court, on October 24, 1925, found and entered an order, a part of which is as follows:

"* * * The court, being fully advised in the premises, finds: That the execution issued in this cause on the 24th day of July, 1924, and under which a sale was had, is void and of no force and effect.

The court further finds that Anna Knight has a right to intervene in this cause and claim said property, and under the proof offered the court finds that the said Anna Knight is the owner of

said property.

The court further finds that it is unnecessary to pass upon the question of the garnishment at this time; * * * that said funds should be restored to the hands of the court clerk of Okmulgee county * * * within five days from this date, and is to be held by the clerk of this court until a hearing is had as to who is the owner of said funds.

It is therefore considered, ordered, adjudged, and decreed by the court that the sale heretofore had under said execution, issued out of the office of the court clerk on the 24th day of July, 1924, be vacated, set aside, and held for naught.

It is further ordered that the execution issued in this cause be quashed, set aside, and held for naught; * * * that a further hearing he had as to the ownership of said funds so garnisheed, said hearing to be had at such time as is convenient to the court."

To which finding, order, and judgment the plaintiff duly excepted and filed its motion for new trial, which was overruled and notice of appeal given.

On December 22, 1925, a hearing was had before the court and evidence introduced upon the motions the defendant and Anna Knight, intervener, to vacate and quash the garnishment proceedings against the G. & G. Drilling Company, and thereafter, on January 5, 1926, the court rendered a decision upon such motion and hearing, and found and adjudged, in substance, that the garnishment summons issued on the 24th day of July, 1924, to the G. & G. Drilling Company should be quashed, set aside, and held for naught, for the reason that said summons was never served upon the principal defendant, Orville Knight, and the court in its judgment and decree found that it had no jurisdiction to pass upon the other matters involved, and declined to pass upon findings of fact and conclusions of law requested by the plaintiff respecting the ownership of and rights to the moneys and property garnished; no order and finding being made or entered in such judgment as to the ownership of the funds. To the ruling and judgment of the court, the plaintiff excepted, filed its motion for new trial, and gave notice of appeal, and has perfected this its appeal from the judgments of the lower court.

Plaintiff in its petition in error sets out fourteen specifications of error, but argues and presents for consideration such errors under six heads or propositions which we will consider as follows:

"Proposition No. 1.

The execution under which the property was sold was not void, but the irregularity therein was subject to amendment; therefore the sale should not have been set aside on this ground."

Plaintiff assumes that the trial court quashed, set aside, and held for naught the execution, for the reason and upon the ground that the execution issued recited in the body thereof that the judgment against the debtor was entered in Creek county when it should have recited Okmulgee county; also, in its heading it recited "State of Oklahoma," "Creek County," and cites a number of cases, and presents argument that such irregularity in the execution writ was subject to amendment and not sufficient grounds upon which to quash the same. Before the trial court rendered judgment in the matter, he permitted the plaintiff to amend the execution, inserting therein "Okmulgee County" where proper. Such action would indicate that the trial court did not quash and set aside the execution by reason of that particular defect or irregularity. The trial court does not state upon what grounds the execution is set aside, but does find that the property levied upon and sold was the property of the intervener, Anna Knight, and in his order vacates the sale under the execution. Defendant argues and asserts that there were other irregularities in the levy of the execution, in that the sheriff of Creek county did not deliver the execution to the court clerk, as provided by section 725, C. O. S. 1921; that the return of the execution was made after its return date.

We think, from an examination of the record, that the real reason or intent of the court in setting aside the execution was because he found that the property sold thereunder was not the property of the judgment debtor. In view of the finding and judgment of the court finding that the intervener was the owner of the property sold and vacating the sale, it is unnecessary to determine or pass upon the merits of...