First Nat'l Bank of Pond Creek v. Cochran

• Citation: 87 P. 855,17 Okla. 538,1906 OK 99
• Parties: THE FIRST NATIONAL BANK OF POND CREEK v. VERNON COCHRAN.
• Decision Date: 07 September 1906
• Court: Supreme Court of Oklahoma

1906 OK 99

87 P. 855

17 Okla. 538

THE FIRST NATIONAL BANK OF POND CREEK v. VERNON COCHRAN.

Supreme Court of Oklahoma

Decided: September 7, 1906

Syllabus

¶0 1. PRACTICE--Motion to Strike from Files. Objection to a petition on the ground that it does not state facts sufficient to constitute a cause of action can be made only by demurrer, or by the objection to the introduction of evidence at the trial. It cannot be raised by motion to strike the petition from the files.

2. REPLEVIN--Pleadings and Issues. In an action in replevin, where both an affidavit and a petition or bill of particulars are filed, the office of the affidavit ceases when the property is delivered and jurisdiction conferred, and the action thereafter proceeds upon the petition. The affidavit is not a part of the pleadings in the district court, necessarily, and the facts set forth therein form no part of the issues triable there, unless such facts are again set forth in the petition or other pleadings.

3. SAME--Affidavit and Petition--Variance. In general there must be a substantial, though not a technical correspondence between the petition and the affidavit in replevin. Where, however, the property has been delivered under the affidavit, and jurisdiction conferred, the trial thereafter proceeds in the district court upon the issues raised by the petition, and not those of the affidavit; and the question of a variance between the allegations of the affidavit as to the character of the ownership of plaintiff, and those of the petition, becomes immaterial.

4. PRACTICE--Objections to Introduction of Evidence. An objection to the introduction of any evidence under a petition is good only when there is a total failure to allege in the petition some matter essential to the relief sought, and is not good when the allegations are simply incomplete, indefinite or statements or conclusions of law.

5. SAME-- When the only objection made to a petition is by objection at the trial to the introduction of any evidence thereunder, its allegations will be liberally construed for the purpose of sustaining them; and when there is not a total failure of averment as to some essential matter, but the allegations are simply incomplete, indefinite, or statements of conclusions of law: Held: An objection to the introduction of any evidence is properly overruled.

Error from the District Court of Grant County; before James K. Beauchamp, Trial Judge.

C. S. Ingersoll and Sam P. Ridings, for plaintiff in error.

C. M. Keiger, for defendant in error.

PANCOAST, J.:

¶1 This was an action, in replevin, for the recovery of certain personal property, originally brought by the defendant in error against the plaintiff in error before a justice of the peace of Grant county. Cochran filed his petition on the 28th of January, 1904, alleging therein special ownership in the property by virtue of a certain chattel mortgage, and at the same time filed his affidavit in replevin, which contained the averment that he was the owner of the property mentioned. Judgment was rendered against the bank by default, and the cause appealed to the district court. There the bank filed a motion to strike the petition from the files, for two principal reasons: First, because of a variance, as it claimed, between the petition and the affidavit in respect to the character of the ownership alleged: And second, because the petition failed to state facts sufficient to constitute a cause of action. This motion was overruled and exception saved. No demurrer was filed, but at the trial the bank objected to the introduction of any evidence, for the reason that the petition did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant, which objection was overruled, and exception noted. At the conclusion of the introduction of plaintiff's evidence, the bank demurred thereto, and upon the demurrer being overruled, saved its exception, and permitted the case to go to the jury on the plaintiff's evidence. The verdict was for Cochran. From an order overruling a motion for new trial, the bank has appealed, assigning as error the action of the trial court in overruling the various objections above enumerated.

¶2 We may state at the outset that we think the evidence in the case amply sufficient to sustain the essential features of the plaintiff's case. There is evidence bearing upon the proposition of the right of the plaintiff to possession, the character of his ownership, the taking, detention and value of the property, demand therefor, together with evidence of damages sustained by reason of the detention, and this, we think, is all that is necessary to be proved in such a case. There was no error committed by overruling the demurrer to the evidence.

¶3 The main questions involved in this appeal arise upon the overruling of the motion to strike, and the objection to the introduction of evidence. Th...