Gripe v. Walker
| Decision Date | 11 February 1964 |
| Docket Number | No. 40326,40326 |
| Parties | Bob GRIPE, Plaintiff in Error, v. Forrest WALKER and Fireman's Fund Insurance Company, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
A sheriff, in executing a writ of replevin issued in an action pending in another county, directing him to take possession of certain property in his county, but containing no direction with reference to serving the writ on the owner of the property, or any defendant in the replevin action, is not guilty of a violation or omission of his official duty, if he executes the writ as so directed.
Appeal from the District Court of Kay County; Chester L. Armstrong, Judge.
Action for damages by the owner of a certain dump truck and accessory equipment against the Sheriff and his sureties on his official bond for damages on account of executing a writ of replevin against certain property, without serving a copy of it upon him. From an order and/or judgment sustaining defendant's demurrer to plaintiff's petition, the latter appeals. Affirmed.
Paul L. Washington, Oklahoma City, for plaintiff in error.
Ralph C. Haynes, County Atty., Kay County, Newkirk, Marland Johnson, Duffy, Johnson & Holmes, by J. Paul Johnson and Kenneth Holmes, Ponca City, for defendant in error.
At all times material to this action, the defendant in error, Forrest Walker was allegedly the Sheriff of Kay County, Oklahoma. He and the other defendant in error, were principal and suerty, respectively, on his official bond. Bob Gripe, the plaintiff in error, commenced this action as plaintiff, against defendants in error, as defendants, to obtain a judgment for the sum of $16,425.00 in damages, and to have said defendants' alleged joint liability on Walker's official bond adjudged on account of his alleged violation of his official duties in connection with a replevin action, previously instituted in the District Court within and for Mayes County, as said Court's Cause No. 10544, by one L. C. Sinor and O. L. Sinor, doing business as Sinor Brothers Construction Company, as plaintiffs, against Gripe and Mr. Bill Mize and Clifton D. Scott, as defendants.
As the parties to this appeal appear in the same order in which they appeared in the trial court, they will be referred to herein by their proper names and/or their trial court designations of 'plaintiff' and 'defendants'.
The general charge of Walker's violation of his official duty in connection with the Mayes County replevin action is that he unlawfully and wrongfully executed a writ of replevin that had been issued in said action and forwarded to him in Kay County. The writ commanded the Kay County Sheriff to take into his custody a certain dump truck, with accessory equipment, described in the writ, and deliver same to the above named plaintiffs, and to make a return on said writ on or before June 10, 1961. Gripe's petition further alleged, in substance, that Walker received the writ June 1, 1961, and '* * * in violation of his duty * * *' served it June 2, 1961, upon the dump truck's driver, Buddy Hamblin, who was not a defendant in Cause No. 10544, supra. The crux of Gripe's claim of Walker's violation of his official duty was that he took possession of the truck without serving the writ on him, or either of the above named defendants in the above Mayes County replevin action, and, after holding it twenty-four hours, turned it over to the plaintiffs in that action. Gripe charged that, under the circumstances, Walker had not given him an opportunity to make a redelivery bond (for the return of the truck to him) as prescribed by State statutes; and further alleged, in substance, that by being so deprived of the truck's use, he had suffered damages in the aforementioned monetary sum.
In urging reversal of the trial court's decision sustaining defendant's demurrer to his petition, Gripe apparently takes the position that it was defendant Walker's duty, under Title 12 O.S.1961 § 1576, to serve the writ upon him, the owner of the truck, as one of the defendants in the Mayes County replevin action (Cause No. 10544, supra). In the cited statute, adopted by this State from Kansas, a writ of replevin is referred to as ...
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Gripe v. Sinor
...to this Court involving some of the parties and matters with which we are here concerned was resolved in the case of Gripe v. Walker, Sheriff, Okl., 389 P.2d 484. Gripe had sued the sheriff in Kay County for damages for taking possession of the truck here in question without serving Gripe w......