Marrinan v. Knight
| Decision Date | 30 July 1898 |
| Citation | 54 P. 656,7 Okla. 419,1898 OK 66 |
| Parties | MARRINAN et al. v. KNIGHT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. In replevin by A. against an officer who justifies under a writ of attachment against the property of B., on the grounds of a fraudulent transfer of the property by B. to A. to defeat the creditors of B., it is a material element of such defense that the relation of debtor and creditor exists between the attachment plaintiffs and B., and the question as to whether such transfer was fraudulent is immaterial until the officer has shown that he represents creditors.
2. Where A. brought suit in replevin to recover chattels seized on a writ of attachment against the property of B., and the defendants in the replevin action attempted to justify under the writ on the ground that B. had transferred the property to A. to defraud his creditors, it is error to exclude evidence tending to show that A. was without any means of her own, prior to such transfer, and that she exchanged real estate which had been given her by B. for the property involved in the replevin action, and that B. was insolvent at the time of such transfer and gift.
3. Errors in rejecting evidence will not reverse a judgment where it appears that, if all the evidence offered by the appellant had been received, the judgment must have been the same.
4. In replevin, where the finding is for plaintiff, and it appears that the plaintiff was in possession of the property described in the petition at the time of trial, it is not proper to render judgment for the return of the property, or in case return cannot be had, for its value.
5. Where the verdict of the jury is proper, and the judgment is irregular, this court will modify the judgment to conform to the verdict, and affirm the case.
Appeal from probate court, Pottawatomie county; before Justice W. A Ruggles.
Replevin by Hannah F. Knight against L. Marrinan & Bro. From a judgment for plaintiff, defendants appeal. Modified.
B. F Burwell and Pendleton & Madden, for plaintiffs in error.
Cutlip & Blackeney, for defendant in error.
The plaintiffs in error, L. Marrinan & Bro., brought an action in the district court of Pottawatomie county against Homer Knight to recover a judgment on a promissory note for the sum of $452.43. At the same time they procured a writ of attachment to issue against the goods and chattels of Knight, and placed the same in the hands of William B. Trousdale, sheriff, for service. The writ was executed by levying on two mules, a set of harness, and a wagon. Hannah F. Knight, wife of the attachment defendant, brought suit in replevin against Trousdale, in the probate court of Pottawatomie county, and under the writ of replevin obtained possession of the attached property. She alleged ownership and right of possession. Marrinan & Bro., the plaintiffs in the attachment suit, obtained leave to be substituted for the sheriff as defendants in the replevin suit. They then filed an answer in which they alleged that Trousdale was, at the time of taking the said chattels, the duly-elected, qualified, and acting sheriff of Pottawatomie county; that as such sheriff he seized said property under and by virtue of a writ of attachment issued out of the district court of said county, at the instance of the defendants, Marrinan & Bro., in a cause in said court wherein Marrinan & Bro. were plaintiffs and H. E. Knight defendant; that said cause was for against Knight, for the sum of $452.43, on a promissory note dated February 27, 1895, and which was then in good faith due them from said knight. They further alleged that the mules and harness mentioned in the petition of plaintiff, Hannah Knight, were the proceeds of certain real estate situate in the town of Earlsboro, Okl. T., which said real estate was deeded to said plaintiff by one Max Wagoner, at the instance and request of the said H. E. Knight, who is the husband of the plaintiff, Hannah Knight. They further averred in said answer that the consideration for said real estate was paid by Homer Knight, out of his own sole and separate means; that he was then insolvent, and procured the conveyance to be made to his wife, for the purpose of defrauding the defendants, Marrain & Bro.; that said conveyance was so made for the purpose of delaying, defrauding, and hindering the creditors of Homer Knight, and that Hannah Knight took said legal title to hold the same in trust for her husband, Homer Knight; and they ask for judgment in their favor in the replevin suit, and that said property be declared liable on their attachment proceedings. The purpose of this answer was to set up a fraudulent transfer of these chattels from Homer Knight to his wife, Hannah Knight, and to defeat her right to recover same in her action of replevin. No general denial was field in the replevin cause, nor was it denied that she was in possession of the property at the time it was levied on. Hannah Knight was a stranger to the attachment proceedings, and Homer Knight was not a party to the replevin action. It was not alleged in the answer to the petition in replevin that Homer Knight was the owner of these chattels at these time of the levy of the writ of attachment, nor was it alleged that said property was subject to execution or attachment. The plaintiff filed a general denial to the special plea, and the cause went to trial before a jury. A verdict was returned for the plaintiff, and judgment rendered on the verdict against the defendants, Marrinan & Bro. They bring this appeal, and complain of the rulings of the trial court in rejecting certain evidence offered by them which tended to show that the real estate which Hannah Knight traded for the chattels in dispute was purchased by her husband with his own means, and that she had no means whatever in her own right except such as her husband transferred to her at a time when he was insolvent. No objection was made in the court below to the sufficiency of the answer. But now, in answer to the contention of plaintiffs in error that the court erred in excluding the testimony offered by them, counsel for defendant in error contend that the answer did not allege sufficient facts to constitute a defense to their cause of action.
It is undoubtedly correct that, if a demurer had been directed against the special plea in the court below, it should have been sustained, but many errors in pleadings are cured by verdict; and as no objection was made in the court below to this answer, and no objection having been made to the introduction of testimony on the ground of its insufficiency, we think we should not treat the defects as having been waived by the parties and the errors cured.
On the trial of the cause the plaintiff went upon the witness stand in her own behalf, and testified that she was the owner of the property in controversy, and that it was in her possession at the time it was levied upon; that it was all of the value of $125. She was then, on cross-examination, asked where she obtained the mules, harness, and wagon, and testified that she traded a lot in Earlsboro, Okl. T., for said chattels. She was then asked a number of questions, each proper in form, as to where she obtained the purchase money she paid for the Earlsboro lot; what means of her own she had; if her husband did not pay for the lot with his own means, and have it deeded to her; if he was not insolvent at the time; if he did not owe Marrinan & Bro. at the time; and if it was not intended to keep his creditors from reaching the property. To all these questions objection was made upon the ground that it was an attempt to put the title to real estate in question, and the court sustained the objections to which defendants excepted. After the plaintiff rested her case, the defendants put Mrs. Knight on the stand as their own witness, and asked her a number of questions, in answer to which she testified that she bought the property in dispute in July, 1896, from one Howry; that she traded a lot and butcher shop for them; that she gave the deed for the mules, wagon, and harness. She was then asked the following questions, each of which was objected...
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