Millus v. Brothers

• Citation: 1917 OK 161,63 Okla. 261,164 P. 663
• Decision Date: 20 February 1917
• Docket Number: Case Number: 5931
• Court: Supreme Court of Oklahoma
• Parties: MILLUS et ux. v. LOWREY BROS.

1917 OK 161

164 P. 663

63 Okla. 261

MILLUS et ux. v. LOWREY BROS.

Case Number: 5931

Supreme Court of Oklahoma

Decided: February 20, 1917

Syllabus

¶0 1. Appeal and Error-- Attachment--Jury--Claim of Third Party--Construction of Interpleader--Trial by Jury--Review. Where one who is not a party to an action files what she denominates an "interplea in attachment," which, without directly attacking the existence of any of the alleged grounds for the attachment or any proceeding had therein prior to the levy, merely denies that the defendant in the attachment or any other person than herself owns the personal property attached and claims for herself the title and in effect the right to the immediate possession of such property, she will be deemed an interpleader asserting a right in the nature of that of a petitioner in replevin upon the authority of section 3918, Stat. 1893 (section 4701, Rev. Laws 1910), as construed in the Ranney-Alton Mer. Co. v. Hanes & Johnson, 9 Okla. 471, 60 P. 284, and not a mere mover asking for a discharge of the attachment as an interested party who assumes that there is no substantial question as to the existence of her interest and who invokes no further inquiry or decision as to her interest than that there is, at the time, no substantial question of its existence, upon the authority of section 4426, Stat. 1893 (section 5310, Rev. Laws 1910), as construed in Sparks v. City National Bank of Lawton et al., 21 Okla. 827, 97 P. 575, and Shelby et al. v. Ziegler, 22 Okla. 799, 98 P. 989, following the rule established by White-Crow v. White-Wing, 3 Kan. 276 (270), Harrison & Willis v. Andrews, 18 Kan. 535, and Long v. Murphy et al., 27 Kan. 375. (a) The issue made by such interplea and plaintiff's general denial of the allegations therein is properly triable to a jury. (b) Errors occurring in such trial are not subject to review in this court unless the action of the trial court in overruling the motion for a new trial is assigned as error.

2. Attachment -- Affidavit -- Denial -- Motion to Discharge Attachment. Under section 4118, Stat. 1893 (section 4862, Rev. Laws 1910), construed in the light of section 4119, Stat. 1893 (section 4863, Rev. Laws 1910), the existence of the grounds stated in the affidavit for an attachment may be denied and put in issue in a motion to discharge the attachment.

3. Same--Motion to Discharge--Trial by Jury-- Waiver. The issues made by a defendant's motion to discharge an attachment in which the existence of the grounds for the attachment alleged in the affidavit therefor are denied are triable to the judge without a jury; but where the mover does not ask for and insist upon a consideration or decision of the same by the judge, and, after the same are submitted to the jury without objection and a verdict has been returned sustaining the attachment, the judge enters judgment sustaining the same, the moving defendant will be deemed to have waived his right to have the same considered and determined by the judge independently of the verdict of the jury.

4. Appeal and Error- -Attachment--Existence of Grounds--Question for Jury--Presumptions--Harmless Error. It is error to submit an issue as to the existence of grounds for an attachment to the jury for a general verdict, instead of merely for special advisory findings of fact, if at all, and to base a judgment upon such general verdict, instead of upon the findings and opinion of the judge, in the decision upon a motion to discharge such attachment traversing the existence of such grounds. (a) When the judgment on such motion follows, recites, and is in accord with such general verdict, and it does not affirmatively appear that the judge treated such verdict as merely advisory and gave such judgment upon his own findings and opinion, such judgment will be presumed to be based upon such verdict. (b) Such error will necessitate a reversal only when upon an examination of the entire record, it appears that the same has probably resulted in a miscarriage of justice or violates a constitutional or statutory right.

5. Attachment--Grounds--Fraudulent Conveyance. A disposition of property with intent to defraud, hinder, or delay creditors, within the meaning of section 4068, Stat. 1893 (section 4812, Rev. Laws 1910), may be effected by means of a mortgage thereon, so as to constitute a ground for attachment under this section of the statutes.

6. Attachment-- Allegations of Affidavit--Construction--Civil Action. An allegation in an affidavit for an attachment "that said plaintiff has commenced said action against said defendant for the recovery of $ 322; that the defendant is indebted to said plaintiff in said sum; that said claim is just and due, and is wholly unpaid," sufficiently shows that the action in which the attachment is asked is "a civil action for the recovery of money" within the meaning of section 4068, Stat. 1893 (section 4812, Rev. Laws 1910), to permit the attachment. (a) If the allegation in this regard had been slightly insufficient, either the answers filed or the evidence taken in this case was such as to cure any such defect.

7. Same--Affidavit--Just Claim. The requirement of section 4069; Stat. 1890 (section 4813, Rev. Laws 1910), that an affidavit for an attachment shall show that the plaintiff's claim "is just" is satisfied by merely stating in such affidavit, in the language of the said section, that the same "is just."

8. Attachment--Personal Property--Judgment. Evidence examined, and held sufficient to support a judgment sustaining an attachment of personal property.

Kane, J., dissenting. Arnote & Rogers, for plaintiffs in error.

Andrews & Day, for defendants in error.

THACKER, J.

¶1 The plaintiffs in error, L. S. Millus and M. F. Millus, who are husband and wife, will be designated as defendant and interpleader, respectively, and the defendants in error, Lowrey Bros., a partnership, will be designated as plaintiffs, in accord with the titles of these parties in the trial court. The plaintiffs commenced this action on August 10, 1911, against the defendant, on an account for $ 270, with legal interest from that date, and on a promissory note held by them as assignees for $ 32, with interest thereon at the rate of 8 per cent. per annum from some time in 1903, making a total of about $ 322 at the time this action was commenced; and at the same time the plaintiffs procured the attachment of a stock of goods, wares, and merchandise as the property of the defendant and in his possession, upon an affidavit filed in this case which alleges, among other things:

"That said plaintiff has commenced said action against said defendant for the recovery of $ 322; that the defendant is indebted to said plaintiff in said sum; that said claim is just and due and is wholly unpaid.

"(5) That said defendant is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors.

"(6) That said defendant is about to convert his property, or a part thereof, into money, for the purpose of placing it beyond the reach of his creditors.

"(7) That said defendant has property or rights in action which he conceals.

"(8) That said defendant has assigned, removed, or disposed of or is about to dispose of his property, or a part thereof, with the intent to defraud, hinder, or delay his creditors."

¶2 The attached property was the stock in trade in a store in the ostensible possession and control of the defendant. On September 6, 1912, defendant answered by denial of all indebtedness and by alleging that the account sued on was incorrect in respect to its failure to show certain credits, as claimed by him, amounting to a payment of the indebtedness therein charged against him. On November 25, 1911, the defendant filed his verified motion to discharge the said attachment, in which motion he not only alleged defects apparent on the face of the plaintiff's affidavit for the same, but denies the existence of each and all grounds therefor stated in said affidavit. On December 10, 1912, plaintiffs filed their general denial of the allegations of defendant's answer. On December 19, 1912, the interpleader, presumably under section 3918, Stat. 1893 (section 4701, Rev. Laws 1910), came into this case by filing what she denominated her "interplea in attachment," which, after reciting the fact of said attachment, alleges:

"That this affiant claims said property so attached; that affiant's claim to said property arises as follows: That affiant bought the original stock of goods, wares, and merchandise, replenishing the same from time to time as depleted in the usual course of trade, and at the time of the levy of the said attachment writ she was the absolute owner of said stock of goods, wares, and merchandise, and bought and paid for same with her own money, and the same is the property of this affiant and is not the property of L. S. Millus or any other person.

"Wherefore affiant prays that said attachment be dissolved as to said property, and for such other relief as may be just and meet in the premises."

¶3 On February 28, 1913, the plaintiffs filed a general denial to the aforesaid interplea. On April 29, 1913, with the pleadings of the parties and the motion of the defendant to discharge the attachment standing as above stated, this case went to trial to a jury under the judge's instructions upon each and all the issues of fact above shown, including the issue made by the motion to discharge the attachment and the issue made by the aforesaid interplea and answer thereto, and the trial resulted in a verdict as follows:

"We the jury duly impaneled, selected, and sworn to try the above entitled cause, do find from the law and evidence the issues in favor of the plaintiffs, Lowrey Bros., in the sum of $ 188.38, and that the attachment herein shall be sustained, and further find the issues against the interpleader, M. F. Millus."

¶4 The court entered a judgment in accord with...