Greer v. Yellow Mfg. Acceptance Corp.

• Decision Date: 26 December 1967
• Docket Number: No. 41051,41051
• Parties: E. A. GREER, Plaintiff in Error, v. YELLOW MANUFACTURING ACCEPTANCE CORPORATION, a Corporation, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 50

436 P.2d 50

1967 OK 253

E. A. GREER, Plaintiff in Error, v. YELLOW MANUFACTURING ACCEPTANCE CORPORATION, a Corporation Defendant in Error.

No. 41051.

Supreme Court of Oklahoma.

Dec. 26, 1967.

Syllabus by the Court

1. When a party intervenes in a replevin action and by his pleading asserts title and right to possession in himself to the property in controversy, he thereby stands in the same position as plaintiff in the action as regards burden of proof and assumes the burden of proof necessary to sustain the allegation of his ownership.

2. Where an intervenor demurs to plaintiff's evidence, but does not stand on said demurrer, and, after it is overruled, introduces evidence on his own behalf, he thereby waives any error in the overruling of said demurrer; and whether the judgment thereafter rendered for plaintiff is sufficiently supported by proof, will be determined, on appeal, from the evidence as a whole.

3. For a litigant to rely upon an Oklahoma court's taking judicial notice of the statutes of another State, he must, since this State's adoption of the 'Uniform Judicial Notice of Foreign Law Act' in Tit. 12 O.S.1961 §§ 541--547, both incl., give 'reasonable notice' to any adverse party 'either in the pleadings or by written notice given ten (10) days before trial' as provided by § 544, but said section contains no requirement that, where the notice is by pleading, a copy thereof must be received by the adversary at least ten (10) days before the trial.

4. Where intervenor claimed right to possession of truck on the basis of purchase, and certificate of title obtained, in Indiana, but demonstrated no prejudice from the claimed error of the trial court in overruling his objection to plaintiff's introduction of the Indiana law into the evidence, the trial court's judgment in plaintiff's favor would not, under the circumstances of this case, be reversed on that ground.

Appeal from the District Court of Oklahoma County; A. P. VanMeter, Judge.

Action in replevin to obtain possession of a truck by the assignee of the conditional sales contract, under which it was allegedly sold. At a trial of the cause upon evidence introduced by plaintiff and by an intervenor, who had purchased the truck from its original vendee's vendee, judgment was for plaintiff, and intervenor appealed. Affirmed.

Paul L. Washington, Oklahoma City, for plaintiff in error.

Rhodes, Crowe, Hieronymus, Holloway & Wilson, by Page Dobson, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

This action to replevy a 1959 Model GMC truck tractor (hereinafter referred to merely as 'truck') was instituted in April, 1961, be defendant in erro, as 'plaintiff', after it had been brought here from out of the State, and plaintiff, who had been assigned the conditional sales contract, under which it was sold, learned it was in Oklahoma City's Civic Center Garage.

The truck was originally sold under the conditional sales contract by a Florida truck sales corporation we will refer to as 'Hunt', to one Robert H. Randall in that State during July, 1959. Hunt thereafter assigned said contract to plaintiff. The contract and a notice of plaintiff's lien claim were properly filed and recorded, and a certificate of title issued to Randall, all in accord with the laws of that State.

Randall became delinquent in paying installments on the truck's purchase price in July, 1960; and, a short time later that year, he sold it to one Ted H. Thompson in Georgia, furnishing Thompson a Georgia title.

Thereafter, Thompson took the truck to Indiana and, in December, 1960, upon his affidavit of ownership, obtained an Indiana certificate of title to it. On the 16th day of that month, he assigned this to plaintiff in error, hereinafter referred to as 'intervenor'. On March 15, 1961, intervenor obtained his own Indiana certificate of title.

When plaintiff discovered the truck in Oklahoma City the next month, and instituted this action, as aforesaid, Robert H. Randall was the only defendant named in its verified petition filed therein. Later, Civic Center Garage was also named a defendant; and plaintiff obtained possession of the truck under a writ of replevin served on said Garage.

Thereafter, intervenor, claiming that he was the truck's owner by reason of his purchase from Thompson in Indiana, further alleged (among other things) in his verified petition of intervention, and its amendment, that plaintiff had wrongfully taken possession of it under the aforementioned writ, and sought damages for said allegedly wrongful taking.

Thereafter, on May 9, 1963, the court permitted plaintiff to file an amendment to its petition, in which the facts concerning the truck's original sale, its title registration, and the filing of its conditional sales contract in the State of Florida were alleged in more detail. The last part of said petition amendment was as follows:

'* * *

'* * * plaintiff alleges and states that it intends to and does rely on the statutes of the State of Florida and asks that this court take judicial notice of said applicable Florida Statutes and common law under the authority of 12 O.S.A., Sec. 451 (541) and this pleading is notice to all adverse parties herein under the requirements of 12 O.S.A., Sec. 544 of such intent.'

According to a statement signed by plaintiff's attorney, and attached to said petition amendment when filed, a copy thereof was mailed to the attorney for the intervenor the same day.

Eleven days later, or on May 20th, plaintiff filed an answer in the form of a general denial to intervenor's petition of intervention as amended; and the defendants, Randall and Civic Center Garage being in default, the cause proceeded to trial between the plaintiff and the intervenor before a jury.

As a part of its evidence, plaintiff introduced the conditional sales contract, under a stipulation which dispensed with its identification; but, neither Randall, nor any other witness to his execution of said instrument, testified to that alleged fact.

At the close of plaintiff's evidence, the intervenor's demurrer thereto was overruled. When intervenor thereafter introduced his evidence, and both parties rested, the trial court, on its own motion, and without objection, withdrew the cause from the jury's consideration, on the ground that the only issues involved were questions of law. After the jury had departed, the trial court allowed plaintiff, over intervenor's objection, to introduce in evidence an 'Exhibit B' referred to as 'the Indiana law', and took the case under advisement, with an announcement indicating it would be briefed. Several months later, the court entered judgment for plaintiff, upon expressly finding that the intervenor had 'failed to sustain' his allegations. After the overruling of his motion for a new trial, intervenor lodged the present appeal on original record.

Intervenor's brief sets forth his arguments for reversal under four propositions, but, when his arguments under the first two of these are carefully examined, it is clear that the only error of the trial court asserted therein is his overruling of intervenor's challenge to the sufficiency of plaintiff's evidence. When these arguments are analyzed and condensed, it becomes apparent that they all evolve from the basic hypothesis that, in view of the issues joined by the verified pleadings, plaintiff had the burden (to establish a prima facie case) of proving that Hunt owned the truck, and that the conditional sales contract, under which it allegedly sold the truck to Randall, and which contract it assigned to plaintiff, was executed by Randall.

We have carefully considered all of the intervenor's arguments in any way pertinent to this matter, together with the authorities he cites, and, in view of Thompson's testimony concerning the...