Greene v. Circle Ins. Co.
| Decision Date | 23 November 1976 |
| Docket Number | No. 47390,47390 |
| Parties | Pank John GREENE and Earnestine Greene, Appellees, v. CIRCLE INSURANCE COMPANY, Appellant. |
| Court | Oklahoma Supreme Court |
Appeal from the District Court, Comanche County; Jack Brock, District judge.
Pank John Greene and Earnestine Greene (appellees) commenced garnishment proceedings to recover judgment against Circle Insurance Company (appellant) on its policy of insurance with appellees' judgment debtor, Charles Lee Brown. Appellant sought to defend on grounds that appellees' action against Brown was barred by limitations. The trial court entered judgment for appellees and appellant appealed. JUDGMENT AFFIRMED.
O. B. Martin, David W. Kisner, Martin & Kisner, Oklahoma City, for appellees.
William B. Rogers, Ames, Daugherty, Black, Ashabranner & Rogers, Oklahoma City, for appellant.
Circle Insurance Company (appellant) seeks reversal of judgment against it as garnishee of one Charles Lee Brown (Brown) in favor of Pank John Greene and Earnestine Greene (appellees). Brown and appellees were involved in an automobile accident in June of 1967. Brown was a member of the United States Army stationed at Ft. Sill, Oklahoma, at the time of the accident and subsequently moved to California. Appellees filed their petition naming Brown as defendant in September of 1967, and summons thereon was issued, but returned without service having been perfected. The cause remained in that condition until December of 1971, when summons was again issued and served under the provisions of 47 O.S.1971, § 391 et seq. Substitute service was perfected by serving the Secretary of State and by mailing a copy of the summons by certified mail to the last known residence of Brown. Brown failed to appear and default judgment was entered for appellees in March of 1972. No appeal was taken from the judgment.
Thereafter, appellees commenced garnishment proceedings against appellant as liability insurer of Brown. Appellant appeared and demurred to appellee's garnishment alleging that this judgment showed on its face to be defective because the statute of limitations on their action against Brown had run. 12 O.S.1971, § 95(3). The trial court overruled the demurrer and after hearing evidence entered judgment in favor of appellees. Appellant appeals.
Appellant's Petition in Error alleges only one specification of error, 'that the judgment on which Appellees seek recovery is barred by Limitations of actions under 12 O.S. § 95, 3rd, and is void on its face.' In the trial court, appellant defended garnishment on the grounds that Brown as its insured had not given it notice of the accident and had not cooperated as required by the terms of the insurance policy.
The trial court specifically found the defenses of appellant on its contract to be without merit. Although appellant raises the trial court's ruling with respect to its defenses on the contract in its reply brief, no such allegation of error is to be found in the Petition in Error or appellant's brief in chief. Generally, this Court will not review allegations of error that are not raised by the Petition in Error. Stillwater Industrial Foundation, Inc. v. State ex rel. Board of Regents for Oklahoma Agricultural and Mechanical Colleges, Okl., 541 P.2d 173 (1975). Appellant gives us no reason why we should consider error not preserved in the Petition in Error in this case, and we find none in the record.
Our examination of the trial court's journal entry fails to reveal any jurisdictional defect rendering the judgment void on its face, and appellant has failed to point out such defect.
Appellant's lone assertion of error is that it as garnishee may assert for the first time in garnishment proceedings an unraised defense (barred by limitations) of the judgment debtor. Appellant relies almost exclusively on the provisions of 15 O.S.1971, § 427, which provides in part:
'In the interpretation of a contract of indemnity, the following rules are to be applied, unless a contrary intention appears:
...
To continue reading
Request your trial
-
Bayly, Martin & Fay, Inc. v. Pickard
...or within a specified part thereof."2 See, Timmons v. Royal Globe Ins. Co., 653 P.2d 907, 912 (Okla.1982); Greene v. Circle Ins. Co., 557 P.2d 422-23 (Okla.1976).3 This is not a situation like the one found in Key v. Perkins, 173 Okla. 99, 46 P.2d 530, 532 (1935), in which this Court held t......
-
Atlantic Richfield Co. v. State ex rel. Wildlife Conservation Com'n In and For State
...Zinc Co., Inc. v. Moody, Okl., 556 P.2d 268, 269 [1976]; Kile v. Cotner, Okl., 415 P.2d 961, 963 [1966]; and Greene v. Circle Ins. Co., Okl., 557 P.2d 422, 424 [1976]; Marks v. McCune, Okl., 370 P.2d 560, 562 [1962]. Nor can we here determine whether the terms of § 93, subdivs. (1) and (6),......
-
Collins Radio Co. of Dallas, Tex. v. Bell, 51237
...Collins were submitted to the jury. Bell does not challenge the jury verdict for Collins on the two tort causes of action. Greene v. Circle Ins. Co., 557 P.2d 422, 423; Mills v. Lester, 169 Okl. 344, 37 P.2d 261, 262. The two tort theories are not before On the breach of warranty action aga......
-
Alea London Ltd v. Canal Club Inc, 107139.Released for Publication by Order of the Court
...relief proceeding. ¶ 15 Defendants' citation to the general rule stated in the garnishment proceedings in Greene v. Circle Insurance Company, 1976 OK 173, 557 P.2d 422, that an insurer “who is required either by law or contract to protect another from liability” is bound by the result and m......