Kramer v. Montgomery
| Decision Date | 25 March 1952 |
| Docket Number | No. 34469,34469 |
| Citation | 242 P.2d 414,206 Okla. 190 |
| Parties | KRAMER v. MONTGOMERY. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Record examined, and held, that where an execution issued out of a justice court was received and a levy made thereunder by the proper constable, the execution being issued by the successor in office of the justice who rendered the judgment, the fact that in the execution the name of the officer to whom it was issued was not inserted, and that the execution failed to state that the judgment was rendered by the predecessor in office of the issuing justice, did not render the execution void so as to make it subject to collateral attack, but that such defects were formal and amendable and were properly amended by order nunc pro tunc by the issuing justice when called to his attention. Held, further, that where the execution on its face required that it be returned within thirty days from the date of issuance, and it was in fact returned within that period, the fact that it recited on the back that it was returnable at the expiration of thirty-one days from date was not a fatal defect.
Washington & Thompson, Oklahoma City, for plaintiff in error.
McKinney & McKinney, Oklahoma City, for defendant in error.
This is an action in replevin brought by plaintiff, L. P. Kramer, against Ray Montgomery, a constable, to recover possession of an automobile seized by Montgomery under a writ of execution issued out of the Justice Court of Willis R. Stark. A jury was waived and the cause was tried to the court, the material facts being stipulated between the parties. When the plaintiff attempted to introduce further evidence the trial court sustained an objection thereto made by defendant on the ground that the action was a collateral attack upon the execution, and could not be sustained for that reason. The trial court rendered judgment for defendant, sustaining his objection to the introduction of the evidence, and plaintiff appeals.
The pertinent facts are embraced within the stipulation of the parties and are as follows: On June 18, 1946, Elwood Fullerton obtained judgment in the Justice Court of Justice Evert Crismore against Paul Armistead for the sum of $175.25 and attorneys fees. On May 21, 1949, an execution upon this judgment was issued by Justice Willis R. Stark, whom it was stipulated was the successor of Evert Crismore as Justice of the Peace in the court in which the judgment was obtained. The automobile was seized under this execution, and the execution was returned on May 26, 1949, showing that the car had been seized and was stored in a garage.
It is further stipulated that plaintiff, on April 16, 1949, took a chattel mortgage from Armistead, covering the automobile, but this chattel mortgage was not filed for record until May 27, 1949, the day after the property was levied upon and taken by the defendant. It is stipulated that Stark was the duly appointed successor of Crismore and that Montgomery was the duly elected and acting constable of the justice court of Willis Stark. It was also stipulated that the judgment was a good and valid judgment; that the amount due thereunder as set forth in the execution, was true and correct and that the title to the automobile at the time the execution was levied was in Paul Armistead.
From the record it appears that the execution, at the time it was levied, did not contain the name of the constable to whom it was issued, and recited that the judgment was recovered before the undersigned justice of the peace, the execution being signed by Willis R. Stark, and that on the back of the execution the return date was shown as June 21, 1949, although in the body of the execution the constable was directed to return the same within thirty days from the date it was issued. After this case was filed, and prior to the trial, the execution was amended by an order nunc pro tunc to show that it was directed to the defendant, Ray Montgomery, and to show that the judgment was obtained in an action pending before Evert Crismore, predecessor to Willis R. Stark.
Plaintiff contends that the failure to insert the name of the constable in the execution; the fact that it showed that it was based on a judgment rendered by Stark, and that on the back it stated that it was returnable on June 21, 1949, rendered the execution void at the time it was served and levied; that being void it was not amendable, and that he may maintain a...
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