Loeb v. Loeb

• Decision Date: 13 July 1909
• Citation: 103 P. 570,24 Okla. 384,1909 OK 181
• Parties: LOEB v. LOEB et al.
• Court: Oklahoma Supreme Court

103 P. 570

24 Okla. 384, 1909 OK 181

LOEB v. LOEB et al.

Supreme Court of Oklahoma

July 13, 1909

Syllabus by the Court.

The title to land is not in dispute or drawn in question in an action by a grantee brought solely for the purpose of recovering money paid for taxes against which his grantor had covenanted in his deed, and a probate court of the territory of Oklahoma and a county court of the state for a proper amount has jurisdiction thereof.

Either party may plead and prove a set-off or counterclaim of a proper nature, in defense of the liability sought to be enforced by the other party, and it is not necessary that the same shall exist as between all parties plaintiff and defendant in such suit, but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him.

In October, 1907, a civil action was begun in a probate court for a sum within the jurisdiction of a justice of the peace. While it was pending, and before trial, statehood intervened and the case was tried in the county court in November, 1907. At the conclusion of the evidence plaintiff requested the court to give to the jury special and general instructions which request was refused. Held, not error.

Where the verdict returned by a jury is reasonably supported by the evidence, a judgment rendered thereon will not be reversed on appeal.

All that relates to the manner and time in which a case shall be conducted and tried from its inception to final judgment and execution is generally embraced under the title of "practice." (Quoting Words and Phrases, vol. 6, p 5486.)

In its most comprehensive sense, the term "proceeding" includes every step taken in a civil action except the pleadings. (Quoting Words and Phrases, vol. 6, p. 5632.)

Error from Noble County Court; H. E. St. Clair, Judge.

Action by Henrietta Loeb against Leopold Loeb and others. Judgment for defendants, and plaintiff brings error. Affirmed.

H. A. Johnson, for plaintiff in error.

Doyle & Cress, for defendants in error.

DUNN J.

This action was commenced in the probate court of Noble county on the 14th day of October, 1907, plaintiff filing her bill of particulars to recover from defendants $39.42, for and on account of certain taxes which she was required to pay upon land purchased by her from the defendants and against which they had covenanted in their deed. To this bill of particulars defendants filed a demurrer, which was overruled. An answer was then filed setting up that the court was without jurisdiction, for the reason that the action was one in which the title to real estate was in dispute, and also denying that at the institution of the suit, or at any other time, defendants were the owners of land described in plaintiff's bill of particulars, and denying the execution and delivery of the deed. For a cross-bill against plaintiff they averred that she was indebted to them in the sum of $100 for commission on account of services rendered in effecting the sale or exchange of the land described in the warranty deed upon the covenants of which plaintiff predicated her action. After the answer and cross-bill were filed, and before the trial, statehood intervened, and the cause was tried to a jury in the county court of Noble county in November, 1907. Verdict was rendered against plaintiff and in favor of defendants Leopold Loeb and William A. Watkins on the cross-bill in the sum of $5. Motion for new trial was filed and overruled, and the cause has been brought to this court by petition in error and case-made.

Section 396, art. 15, c. 22, par. 1872, subd. 5, Wilson's Rev. & Ann. St. 1903, provides that the probate court shall not have jurisdiction in any matter wherein the title of land or boundaries may be in dispute. Section 12, art. 7, p. 219, Snyder's Ann. Const. Okl., provides that the county court shall not have jurisdiction in any action wherein the title or boundaries of land may be in dispute or called in question. It is insisted by counsel for the defendants that the court was without jurisdiction to entertain the action for and on account of these provisions. We do not agree with them. This was not an action for the purpose of determining the right of either of these parties in or to this land. It was simply a question of whether or not a covenant in the deed had been broken. Neither party sought to establish title. Plaintiff sought to establish merely the facts that the defendants had executed to her a certain instrument, a deed, and that the covenant therein contained against incumbrances or taxes was broken at the time it was made. An inquiry into the state of the title for no other purpose or end than to ascertain this fact does not involve the title or draw it into question. Hesser v. Johnson, 57 Neb. 155, 77 N.W. 406; Dafoe v. Keplinger et al., 1 Neb. (Unof.) 440, 95 N.W. 674; Campbell v. McClure, 45 Neb. 608, 63 N.W. 920; Flannery v. Hinkson, 40 Vt. 485.

We are aware that there is some contrariety of opinion on this proposition; but in our judgment the rule declared in the foregoing authorities is the correct one. It is claimed by counsel for plaintiff that the counterclaim or set-off which was pleaded in the cross-bill was not available by reason of the fact that it did not affect all the parties, and attention is called to the cases, Murphy et al. v. Colton et al., 4 Okl. 181, 44 P. 208, and Richardson et al. v. Penny, 10 Okl. 32, 61 P. 584, as well as a number of authorities from other states. Counsel for both parties evidently overlooked the statute passed by the territorial Legislature in 1905, found in section 3, art. 7, c. 28, p. 328, of the Laws of that year, in which it is provided that "either party may plead and prove a set-off or counterclaim of the proper nature, in defense of the liability sought to be enforced by the other party, and it is not necessary that such set-off shall exist as between all parties plaintiff and defendant in such suit, but any party may enforce his set-off or counterclaim against the liability sought to be enforced against him." The foregoing statute is in keeping with the general trend of judicial expression on this subject in the different states of the Union, even where there is no such statute, and in our judgment its passage was prompted by the holding of the Supreme Court in the cases upon which plaintiff relies. It is manifest that it is right. The only inconvenience that could possibly arise from it would be in the matter of procedure at the trial, and this is now generally conceded to be less than the inconvenience which would be brought about by a contrary rule requiring a separate and additional trial. An instructive case upon its proposition, with generous annotations, is found in the 2 Am. & Eng. Ann. Cas. 597, wherein is reported the case of Wilson v. Exchange Bank, 122 Ga. 495, 50 S.E. 357, 69 L. R. A. 97. In that case objection that the allowance of the individual set-offs of one or more defendants would give rise to difficulty in the framing of a judgment to fit the facts was answered by the court saying that it was a difficulty more of arithmetic than of law. We can see no good reason in the case at bar, under this statute, why any money due from plaintiff to two of the defendants could not be counterclaimed or set off against her demand against them. Nor do we believe the fact that the plaintiff owed defendants as a partnership in any wise changes this situation. If plaintiff was successful in this action, the claim of the partnership against her would have been concluded, and, as defendants were successful, the claim of the partnership is equally settled.

25 American & English Encyclopædia of Law, at page 571, says: "The object of the statute authorizing counterclaims is to enable parties to settle and adjust all their cross-claims in a single action, thus avoiding circuity of action and a multiplicity of suits. The statute should be liberally construed to effect this end."

Certain special instructions were requested by counsel for plaintiff who also requested the court to give to the jury general instructions upon the law of the case, both of which requests were denied. This is alleged as error. It is urged on the part of counsel for plaintiff that the county court, under the provisions of ...