Hyre v. Pratt
| Decision Date | 16 April 1963 |
| Docket Number | No. 39903,39903 |
| Citation | 382 P.2d 18,1963 OK 91 |
| Parties | Clarence HYRE, City Treasurer of the City of Pauls Valley, Oklahoma, a municipal corporation, Plaintiff in Error, v. Robert O. PRATT, Stella Pauline Pratt, Robert O. Pratt, executor of the Estate of T. B. Pratt, deceased, and Robert O. Pratt, administrator of the Estate of Ruby Pearl Pratt, Deceased, Defendants in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court
1. Error occurring during the trial of a case cannot be considered in this court unless a motion for a new trial founded upon and including such errors has been made by the party complaining and presented to the trial court and by it denied.
2. Where error is apparent upon the face of the judgment roll or record proper, no motion for a new trial is necessary in order to have the judgment reviewed.
3. In a replevin action, where an alternative judgment has been rendered against a party, for the return of the property taken or its value, it is the duty of such unsuccessful litigant to promptly, and in good faith, tender the property in substantially the same condition and of substantially the same value as when the property was obtained by him, and upon his failure to make such delivery he becomes liable for the full adjudicated value.
4. A finding of value is essential to a judgment in replevin for delivery of property or its value where the judgment changes possession.
5. A judgment against a governmental subdivision of this state, for which no tax levies have been made, should not be paid out of the accumulated sinking fund under the provisions of 62 O.S.1961, Sec. 435, unless it definitely appears that the sinking fund used to pay the judgment will or may be replaced by levy and collection by the time it is needed to pay maturities of pre-existing obligations of the sinking fund.
Appeal from the District Court of Garvin County; Joe D. Shumate, Judge.
Action by Robert O. Pratt et al. for peremptory writ of mandamus to compel Clarence Hyre, City Treasurer of Pauls Valley, to pay a judgment with money from the sinking fund of said city. The City Treasurer appeals from the judgment granting the writ. Affirmed.
Haskell Paul and Charles E. Jackson, Pauls Valley, for plaintiff in error.
R. B. Garvin and C. H. Bowie, Pauls Valley, for defendants in error.
This is an appeal from a judgment of the District Court of Garvin County granting a peremptory writ of mandamus ordering Clarence Hyre, City Treasurer (defendant below) to pay a judgment in favor of Robert O. Pratt et al. (plaintiffs below) from the sinking fund of the City of Pauls Valley.
Plaintiffs had filed a prior repleving action in said court against the City of Pauls Valley wherein they claimed ownership of the liens, pipes and material constituting a water distribution system and that the city wrongfully retained possession of the same, and plaintiffs asked for a judgment for possession or in lieu thereof the value of the water system. A trial was held in this replevin action and resulted in a judgment on July 29, 1960, finding plaintiffs were the owners and entitled to possession of enumerated lines, pipes and material, which were in the possession of the city, and also the value thereof, and a judgment was entered in favor of plaintiffs for possession or in lieu thereof the value, after allowance for all credits, in the sum of $9462.48 with interest at 6% from October 6, 1958. The city did not appeal and the judgment became final.
Thereafter and on April 28, 1961, the plaintiffs filed the instant mandamus action against the defendant City Treasurer, alleging and attaching as an exhibit the judgment in the replevin action; that execution in replevin had been issued and returned unsatisfied; that the city had a surplus in its sinking fund sufficient to pay the judgment; and praying that defendant be required to pay such judgment. The defendant's 'response' to the alternative writ of mandamus took issue with the statement of surplus in the sinking fund and further alleged that the liability of the city under the replevin judgment was a 'contingent liability only;' that the city was without funds of effect delivery, but had offered the use of its equipment to plaintiffs to remove the pipes, etc. from their buried location; and further:
'Defendant further alleges that the liability of the City in connection with said judgment is at this time contingent only for the further and additional reason that due to the large number of inhabitants residing in the area where the water line is located that said water line should not be removed without making other provisions for the distribution of water for the people residing in said area; and the defendant City of Pauls Valley, Oklahoma, has had no funds from which it could pay such expenses.'
Trial was had upon the issues made by the pleadings and from our examination of the record we conclude that the trial court allowed the parties great latitude in the introduction of testimony and evidence. In the final judgment on June 29, 1961, the trial court found the judgment in the prior replevin action was a valid and final judgment and that the property involved could not be restored to plaintiffs in its former condition, 'and was not restored to the plaintiffs;' that the sinking fund had sufficient cash of hand to pay the judgment after all other obligations for bonds and interest coupons or any other obligations have been paid; and by mandamus directed the defendant City Treasurer to pay plaintiffs' judgment from said sinking fund.
The defendant did not file motion for a new trial and then appeal from the order overruling the same but appealed direct from the judgment by case made. In this connection the attorney for defendant stated several times in the record that the appeal was not on any controverted questions of fact and that the appeal was entirely on legal questions.
In Staten v. McMahan, Okl., 337 P.2d 440, we stated:
'Errors occurring during the trial of a case cannot be considered in this court unless a motion for a new trial founded upon and including such errors has been made by the party complaining and presented to the trial court and by it denied.'
In Kellogg v. School District No. 10, 13 Okl. 285, 74 P. 110, we held:
'Where error is apparent upon the face of the judgment roll or record proper, no motion for a new trial is necessary in order to have the judgment reviewed.'
See also Oxfored v. State, 80 Okl. 103, 194 P. 101, and Deering v. Meyers, 29 Okl. 232, 116 P. 793.
The evidence at the trial did present controverted questions of fact as hereinafter set forth and the trial court based his conclusions upon said evidence.
Under these authorities this court will not go into the sufficiency of the evidence, but will limit its inquiry to errors of law, if...
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Russell v. COUNTY COM'RS OF CARTER COUNTY, 92,532.
...is to be paid by tax levies, one-third each year, unless there is a sinking fund out of which the judgment can be paid.9 In Hyre v. Pratt, 1963 OK 91, 382 P.2d 18, the Oklahoma Supreme Court held that judgment creditors could proceed against a city treasurer in a mandamus proceeding to prov......
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Houghton v. Foremost Financial Services Corp.
...make delivery he becomes liable on the alternative judgment for value. See Brook v. Cullimore, 436 P.2d 32, 34 (Okl.1967); Hyre v. Pratt, 382 P.2d 18, 22 (Okl.1963); Wortham v. Mathews, 207 Okl. 466, 250 P.2d 428 (1952). However, since we are remanding this case for further proceedings, the......
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