Kelly-Goodfellow Shoe Co. v. Todd
| Decision Date | 12 February 1897 |
| Citation | 5 Okla. 360,49 P. 53,1897 OK 23 |
| Parties | KELLY-GOODFELLOW SHOE COMPANY v. W. N. TODD. |
| Court | Oklahoma Supreme Court |
Error from the District Court of Lincoln County.
STATEMENT OF FACTS.
This was an action in replevin brought December 18, 1893, in the district court of Lincoln county, against W. N. Todd, and was for the recovery of a stock of shoes. Summons was issued and served "by leaving a certified copy with one, J. C. Simpson, found in charge of the goods replevined in this action." The order in replevin was issued at the same time and executed by the sheriff, by taking possession of the goods and by delivering a true copy of the same to the said Simpson, "whom I found in charge of the goods." On February 10, 1894, the defendant, Todd, entered a special appearance, and moved the court, supported by affidavit, to quash the service and dismiss the action, for that he was a resident of Logan county, and no process was served upon him in Lincoln county. On the same day the court sustained that part of the motion going to quash the service, the plaintiff excepting. The cause was not dismissed, nor did the defendant except to the action of the court in refusing to dismiss it.
The petition was the ordinary petition in replevin, alleging ownership in the plaintiff, describing the goods, averring that the plaintiff was entitled to immediate possession; that the property was wrongfully detained; that it was not taken in execution, etc., alleging the total value at $ 1,106.85, and demanding possession and damages. On June 4, 1894, and before answer, the plaintiff filed an amended petition making as new parties thereto, W. P. Simpson, J. C. Simpson and W. H. Fallis, in addition to the defendant, Todd.
Todd was served with summons to answer the amended petition in Logan county on June 14, 1894. Fallis and J. C. Simpson were serverd in Lincoln county on June 9. W. P. Simpson was not found.
The amended petition, alleged generally, the usual grounds for replevin, describing "the stock of shoes more particularly described in the original petition herein filed," which was referred to for greater certainty of description. It was alleged that the defendant obtained possession of the goods in question by fraud; that W. P. Simpson had made purchases of them from the plaintiff company in the city of St. Louis, by fraudulent representations of his worth and business standing, upon an agreement to pay cash therefor; that the defendant, Todd, and the other defendants, conspired with the said W. P. Simpson to procure the fraudulent and wrongful possession of the stock of shoes, obtained possession thereof, and wrongfully smuggled and removed them to a remote and out of the way village known as Mission, in the county of Lincoln, Territory of Oklahoma.
On July 7, 1894, the defendant, Todd, appeared specially "for the purpose only of testing the jurisdiction of the court, and moved to quash the summons and service," setting up that he was, at the beginning of the action, a resident of Logan county, never a resident of Lincoln county, where this action was brought, and never had service of summons upon him in Lincoln county, but was served with copy of the summons in Logan county, and supporting his motion by affidavit.
A demurrer to the amended petition was filed on the 7th day of July by W. H. Fallis, that it did not state facts sufficient to constitute a cause of action, as to him. Therefore, and on the 12th of November, the court sustained the demurrer and granted plaintiff leave to amend his petition instanter, which was done.
On the same day, the motion of the defendant, Todd, to quash the service was overruled, to which the defendant excepted, "and defendants were required to answer within thirty days from this date."
Thereupon, and on December 10, 1894, the defendant, Todd, appeared generally to the action, and answered, denying the allegations of the amended petition concerning him, except the allegation that at the beginning of the action he was in possession of the personal property in question, alleging that he was the legal owner thereof, and entitled to remain in possession; that the goods had been wrongfully and unlawfully seized and taken from him forcibly; that they were reasonably worth the sum of nine hundred and sixty dollars; that he had been damaged to the extent of five hundred dollars, and praying for judgment.
On April 24, 1895, the defendant, Fallis, asked for and obtained judgment for costs upon the pleadings, the plaintiff excepting.
At the same time the defendant, J. C. Simpson, appeared specially and moved to quash the service upon him, showing by affidavit that he was not in Oklahoma at the time the sheriff's return showed that he was in Lincoln county. His motion was sustained, plaintiff excepting.
A jury was empanelled and the cause proceeded to trial. After oral testimony was taken, the writs, return, invoice, etc., were offered in evidence and excluded by the court, the plaintiff excepting.
The court sustained an objection of the defendant upon the ground that, "the return upon its face does not show that the court at the time the return purports to have been made, had jurisdiction of the defendant in this case, or that the defendant was in court at the time, and the return upon its face does not show that the property was held by the sheriff until such time as the court should obtain jurisdiction of the defendant in this case, and that the return is void as against the defendant, W. N. Todd." And the court excluded all testimony except as to the value of the goods in question and "directed the jury to return a verdict for defendant," fixing the value of the goods at nine hundred dollars, and damages for the unlawful detention thereof at eighty-four dollars and seventy-five cents, which direction was at the time excepted to by the plaintiff.
Many assignments of error were made, including: (1) Error in sustaining the motion of the defendant, Todd, to quash the service, February 10; (8) in sustaining the objection of the defendant to the introduction of any evidence of the writ or order of delivery in replevin and the officer's return thereto, and the invoice; (9) in holding that at the time the return purports to have been made the court had no jurisdiction of the defendant, Todd; (10) in holding that the return does not show at the time it was made that the defendant was in court; (17) in sustaining the objection of the defendant to the further introduction of testimony except as to the question of the value of the property; (21) in sustaining the objection of the defendant to competent testimony as to J. C. Simpson having charge of the goods for the defendant, W. N. Todd, and as to visits of Toed to the place where the goods were in charge of the defendant, J. C. Simpson; (25) in directing the jury to return a verdict for the defendants.
¶0 1. CIVIL ACTION--Commenced, When. In this territory a civil action is commenced by "filing in the office of the clerk of the proper court a petition and causing...
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