Incorporated Town of Stigler v. Wiley

• Decision Date: 26 November 1912
• Citation: 128 P. 118,36 Okla. 291,1912 OK 760
• Parties: INCORPORATED TOWN OF STIGLER v. WILEY.
• Court: Oklahoma Supreme Court

128 P. 118

36 Okla. 291, 1912 OK 760

INCORPORATED TOWN OF STIGLER v. WILEY.

Supreme Court of Oklahoma

November 26, 1912

Syllabus by the Court.

Where a petition states facts sufficient to constitute a cause of action, and such statement is sufficiently definite and certain to put the defendant on notice of what he is charged with, and to enable him to make his defense, the petition is good on demurrer.

This court will not review an instruction given by the trial court, unless the same was excepted to at the time of the trial.

Where complaint is made that the verdict is not supported by the evidence, and where it does not appear from the record that the case-made contains all the evidence, this court will not consider any question depending upon the facts for its determination.

Commissioners' Opinion, Division No. 2. Error from Haskell County Court; A L. Beckett, Judge.

Action by Annie Wiley against the Incorporated Town of Stigler. Judgment for plaintiff, and defendant brings error. Affirmed.

W. H Robins, of Stigler, for plaintiff in error.

Fred H Fannin, of Stigler, for defendant in error.

HARRISON C.

This suit was filed in the county court of Haskell county, June 2 1909, by Annie Wiley, against the incorporated town of Stigler, for the alleged unlawful impounding and selling of nine hogs, and the wrongful conversion to its own use of the proceeds from the sale of same. On October 7, 1909, a trial of said cause was had, resulting in a verdict in favor of plaintiff in the sum of $41. On March 23, 1910, a new trial was granted, and on October 7, 1910, the cause was again tried resulting in a verdict and judgment for plaintiff in the sum of $30. From this judgment the defendant city of Stigler appeals upon three principal assignments of error, to wit: First, error of the court in overruling defendant's demurrer; second, error of the court in instructing the jury; third, error of the court in overruling the motion for new trial.

As to whether or not the first contention is well taken depends upon whether the petition stated a cause of action. The evident intent of the petition was to state that plaintiff was the owner of the hogs, and to describe them, allege their value, and that the incorporated town of Stigler, acting through its duly commissioned city marshal and poundmaster, in conjunction with one William Bain, unlawfully impounded and sold the hogs in question, and wrongfully and unlawfully converted the proceeds to its own use and benefit. In paragraph 2 of her petition plaintiff alleged: "Plaintiff further says that on the 10th day of May, 1909, the plaintiff was the owner of the above-described hogs, and that on said day the defendant J. L. Tribble as the duly commissioned and acting city marshal for said town acting for and in behalf of said town and the defendant John Hatley, the duly appointed poundmaster for said incorporated town, and acting for and as the agent of said town, and with the knowledge and approval of said incorporated town, and with the approval and knowledge of the officers of said incorporated town of Stigler, and the said Wm. Bain, on said date conspired and confederated and planned to induce the above-described hogs from the outside of the incorporated limits of the incorporated town of Stigler to within the incorporated limits of said town in order to impound said hogs, and on said date the said Wm. Bain, acting in conjunction with the said John Hatley, drove said hogs into the said town of Stigler from...