Lane Implement Co. v. Lowder

• Citation: 65 P. 926,11 Okla. 61,1901 OK 35
• Parties: THE LANE IMPLEMENT COMPANY, a corporation, v. L. R. LOWDER AND J.H. MANNING.
• Decision Date: 06 July 1901
• Court: Supreme Court of Oklahoma

1901 OK 35
65 P. 926
11 Okla. 61

THE LANE IMPLEMENT COMPANY, a corporation,
v.
L. R. LOWDER AND J.H. MANNING.

Supreme Court of Oklahoma

Decided: July 6, 1901

Error from the Probate Court of Pawnee County; before William L. Eagleton, Probate Judge.
Syllabus

¶0 1. ATTACHMENT--Suit on Forthcoming Bond--Exemption of Property, Litigated When. A judgment sustaining an attachment is conclusive until reversed or vacated, and a defendant in an attachment suit cannot, when sued on a forthcoming bond, under which the property was returned to him, avail himself of the fact that the property attached was, at the time it was seized under the order of attachment, exempt. If the question was raised in the attachment suit, the judgment adverse to the attachment debtor is res judicata in a suit on the bond, and, if raised for the first time in an action on the forthcoming bond, it comes too late.

2. ADMISSION IN PLEADINGS--Binding, When. Where a party to an action makes solemn admission against his interest in a pleading, in the absence of mistakes on his part or on the part of his counsel who inserted them in such pleading, a court, in passing upon the sufficiency of a subsequent amended pleading filed by him, should take such admission into consideration and treat them as admitted facts in the case.

C. J. Wrightsman, for plaintiff in error.

A. J. Biddison, for defendant in error.

BURWELL, J.:

¶1 The Lane Implement company sued L. R. Lowder on a promissory note before a justice of the peace, and counsel caused an attachment to issue out of that court, which was levied on certain property of the defendant. On the same day the defendant gave a forthcoming bond, with J. H. Manning as surety. At the trial, judgment was rendered for plaintiff, the attachment sustained, and the attached property ordered sold; but when the officer attempted to take the property under the order of sale, it could not be found. The Lane Implement company then commenced this action in the probate court of Pawnee county on the forthcoming bond. The defendants answered, and after several motions were filed by each of the parties and disposed of by the court, the defendants filed what they styled an amended and additional answer, which is, (1,) a general denial, and (2,) alleges that the forthcoming bond was without consideration, in that the property attached in the original suit was exempt under the laws of the territory. The original answer admitted the commencement of the original...