Franks v. City of Okemah, Oklahoma
Decision Date | 07 August 1959 |
Docket Number | Civ. No. 4608. |
Citation | 175 F. Supp. 193 |
Parties | Malinda McMillen FRANKS, by and through her mother and next friend, Clara McMillen, Plaintiff, v. CITY OF OKEMAH, OKLAHOMA, Wiley Edward Brewer, Howard Bennett, and James H. McMillen, Defendants, State Farm Mutual Automobile Insurance Company, Garnishee. |
Court | U.S. District Court — Eastern District of Oklahoma |
Bailey & Pitchford, Okmulgee, Okl., Smith & Douglass, Henryetta, Okl., for plaintiff.
Pierce, Mock, Duncan, Couch & Hendrickson, Oklahoma City, Okl., for defendant.
On the 19th day of November, 1958, in the District Court of Okfuskee County, State of Oklahoma, plaintiff was granted a judgment, by default, against Howard Bennett for the sum of $25,000 for pain and suffering and personal injuries sustained in an automobile collision between a car driven by the defendant, James H. McMillen, and a car driven by Wiley Edward Brewer, Chief of Police of the Town of Okemah, Oklahoma. Plaintiff alleges in her petition that Brewer, Chief of Police of the Town of Okemah, was not only the agent of the Town of Okemah but was also the agent of Howard Bennett, and that at the time of the collision he, Brewer, as the Chief of Police of the Town of Okemah, was, at Bennett's request, providing a police escort for Bennett through the Town of Okemah. Plaintiff's petition discloses that Bennett was driving his own car, following the car that Brewer was driving, and that Bennett's car did not come into contact with the car in which plaintiff was riding. The principal allegation of negligence by the plaintiff was to the effect that Brewer was driving at a speed of approximately 80 miles per hour at the time of the collision; that Bennett was following the police car, but at the time of the collision was able to swerve to the left and avoid striking either of the cars.
When the case was called for trial in the state court, Bennett did not appear, either in person or by counsel. Plaintiff dismissed her cause without prejudice against the City of Okemah and Wiley Edward Brewer. After the evidence was introduced, the Court sustained a motion to dismiss as to James H. McMillen.
After obtaining the judgment against the defendant, Bennett, plaintiff caused an execution to be issued which was returned, "No property found." Thereupon, the attorney for plaintiff filed an affidavit for garnishment, pursuant to the law of the State of Oklahoma, which affidavit is as follows:
"/s/ J. I. Pitchford"
Attached to the affidavit were six interrogatories, as follows:
On February 21, 1959, the garnishee, State Farm Mutual Automobile Insurance Company, filed in this court a petition for removal, and on the same date filed an answer. In the petition for removal, garnishee alleges as follows: "That said suit is a civil action at law wherein the plaintiff as the judgment creditor of Howard Bennett seeks to recover from your petitioner a money judgment in the amount of $25,000.00, with interest from November 20, 1958, and the court costs attendant to the proceedings which resulted in the judgment in favor of the plaintiff and against Howard Bennett."
The garnishee also alleges that "the plaintiff was and now is a resident and citizen of the State of Oklahoma *...
To continue reading
Request your trial-
Hendrix v. New Amsterdam Casualty Company, 9689.
...200 F. Supp. 718 (D.Conn.1961); Browne v. Hartford Fire Insurance Company, 168 F.Supp. 796 (N.D.Ill.1959); and Franks v. City of Okemah, Oklahoma, 175 F. Supp. 193 (E.D.Okl.1959). 5 28 U.S.C. § 1653. "Amendment of Pleading to Show "Defective allegations of jurisdiction may be amended, upon ......
-
Thompson v. Gillen
...514 (E.D.Ky.1967); Carlton Properties, Inc. v. Crescent City Leasing Corp., 212 F.Supp. 370 (E.D.Pa.1962); Franks v. City of Okemah, Oklahoma, 175 F.Supp. 193 (E.D.Okl. 1959); Browne v. Hartford Insurance Co., 168 F.Supp. 796 (N.D.Ill.1959); But see Buell v. Sears, Roebuck & Co., 321 F.2d 4......
-
Goforth v. Allstate Insurance Company
...Hartford Fire Insurance Co., 168 F.Supp. 796 (D.C., 1959); Roseberry v. Fredell, 174 F.Supp. 937 (D.C., 1959); Franks v. City of Okemah, Oklahoma, 175 F.Supp. 193 (D.C., 1959); Washington-East Washington Joint Authority v. Roberts & Schaefer Co., 180 F.Supp. 15 (D.C., 1960); Adams v. Ralph ......
-
Crawford v. Fargo Manufacturing Co., 71-511-Civ. T.
...cure defective allegations. Bradford v. Mitchell Brothers Truck Lines, et al., 217 F.Supp. 525 (N.D.Cal. 1963); Franks v. City of Okemah, Oklahoma, 175 F.Supp. 193 (E.D.Okl.1959). If the stipulation of McGraw-Edison Company is treated as an amendment to the original petition, the decisional......