Harris v. Roberts

• Decision Date: 06 April 1937
• Docket Number: Case Number: 26879
• Citation: 179 Okla. 568,1937 OK 225,66 P.2d 931
• Parties: HARRIS v. ROBERTS et al.
• Court: Oklahoma Supreme Court

1937 OK 225

66 P.2d 931

179 Okla. 568

HARRIS v. ROBERTS et al.

Case Number: 26879

Supreme Court of Oklahoma

Decided: April 6, 1937

Syllabus

¶0 LIMITATION OF ACTIONS - Action Against Sheriff for Negligent Loss of Redelivery Bond in Replevin Barred by Two-Year Statute.

An action against a sheriff for negligently and carelessly losing a redelivery bond in replevin is barred if not brought within two years after the plaintiff could have first brought his action for such negligence (section 101, O. S. 1931).

Appeal from District Court, Pottawatomie County; Leroy G. Cooper, Judge.

Action upon sheriff's bond by V.V. Harris against W.A. Roberts et al. From an order sustaining demurrer to amended petition, plaintiff appeals. Affirmed.

Geo. C. Crump and H.W. Carver, for plaintiff in error.

Park Wyatt and Byron Lamun, for defendants in error.

PER CURIAM.

¶1 On February 27, 1935, V.V. Harris filed an action against W.A. Roberts and the Western Casualty & Surety Company on a sheriff's bond, alleging that a writ of replevin issued in an action wherein the Southern Motor Company was plaintiff and H.M. Hosey was defendant; that certain property was delivered to Frank Stuart, then sheriff, on about December 21, 1929; that H.M. Hosey executed a redelivery bond and said property was released to him; that the bond has been lost; that plaintiff purchased all of the assets of the Southern Motor Company and is now the holder by assignment of the judgment obtained on the 23rd day of June, 1930, when the action was tried upon its merits; that when the defendant Roberts became sheriff on or about the 1st day of January, 1931, the redelivery bond was delivered to him by the said Frank Stuart, and through carelessness lost, to the damage of the plaintiff in the sum of $700, for which he prays judgment with interest. A motion to make more definite and certain was filed, and an amended petition was filed alleging in certain respects some of the statements above made, and in subsequent pleadings it is further stated that the plaintiff had filed an action against A.W. Stuart, no connection being shown with the said Frank Stuart, in Seminole county in which judgment it was determined that the said A.W. Stuart was not one of the sureties. Said judgment was rendered on the 19th day of December, 1934. The final amended petition was filed in this action on July 12, 1935. The court sustained a demurrer to the amended petition. The appeal is by transcript, and the sole question presented, therefore, is, Did the court err in sustaining a demurrer to the petition as finally amended?

¶2 We are of the opinion, and hold, that the court did not err in sustaining the demurrer. By the allegations of the petition plaintiff knew at least on November 8, 1932, that the bond had been lost. This was the date on which he filed his petition in Seminole county against A.W. Stewart. The statute of limitations, therefore, had run against his action at the latest November 8, 1934. His first petition was filed February 27, 1935.

¶3 In Morrissey v. Carter, 103 Okla. 36, 229 P. 510, an action was brought against the sheriff for a false return of his deputy. It was held that an action was limited to two years after the discovery of false and fraudulent...