Grimes v. Cullison
| Decision Date | 27 July 1895 |
| Citation | 3 Okla. 268,41 P. 355,1895 OK 34 |
| Parties | L. C. GRIMES et al. v. J. C. CULLISON. |
| Court | Oklahoma Supreme Court |
Error from the Probate Court of Oklahoma County.
J. C. Cullison brought an action in the court below against D. C. Grimes, A. Bleeker, W. T. Hale and C. A. Towler, upon an attachment undertaking, to recovered the sum of $ 205, damages claimed for a violation of the bond. Judgment was entered for the plaintiff below. The defendants bring this case to this court.
¶0 1. MOTION TO MAKE MORE DEFINITE AND CERTAIN. Where a motion to make a petition more definite and certain is filed, and such motion fails in any manner to point out wherein the petition is indefinite and uncertain, it is not error to overrule such motion.
2. EXHIBITS--When a Part of Petition. Where the instrument, which is the basis of the action, is attached by copy to the petition and made a part thereof, such copy should be considered as a part of the petition, when construing the allegations thereof.
J. Milton, for plaintiff in error.
Wilson & Atchinson, for defendants in error.
¶1 October 23, 1894, J.C. Cullison brought an action in the probate court of Oklahoma county against L. C. Grimes, et al., upon an undertaking bond in an attachment proceedings. In his petition he alleged in substance, that the defendants on the 28th day of August, 1893, undertook, by their certain obligation, to pay to the plaintiff the sum of $ 205 if the certain attachment suit then filed should prove to be obtained unlawfully and wrongfully, a copy of which undertaking is attached to the petition and made a part thereof. He alleged, further, in the petition, that the case came on for hearing on the motion to discharge the attachment, which motion was by the court sustained, and he attached to the petition a copy of the judgment dissolving the attachment, and made the same a part of his petition. He also alleged that he sustained damages in the sum of $ 205, and attached to the petition a verified account, and made such account a part of his petition, and upon such petition asked a judgment. To this petition the defendants first filed a motion to make the same more definite and certain, which was, by the probate judge overruled. Defendants below then filed a demurrer upon the ground that the petition failed to state facts sufficient to constitute a cause of action; which demurrer was also overruled. The defendants then answered setting up a counter-claim, set off, etc. A trial was had to a jury, and a judgment rendered in favor of the plaintiff below in the sum of $ 3.37 and costs. The defendant brings the case here upon a case-made which contains simply the pleadings, motions and demurrers, verdict and judgment upon the verdict, and motion for a new trial.
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...a waiver and was not properly pleaded, and that in order that a waiver may be available it must be specifically pleaded. Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131; Davis et al. v. Board Co. Com'rs, 58......
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...to require the plaintiff to separately state and number his causes of action we will now determine, In the case of Grimes et al. v. Cullison, 3 Okla. 268, 269, 41 P. 355, it is held that where a motion to make a petition more definite and certain is filed, and said motion fails to in any ma......
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...such instrument should be considered as a part of the petition when construing the allegations thereof on demurrer. Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131; Davis et al. v. Board of County Com'rs, a......
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