Mitchell v. McCollister

• Decision Date: 13 November 1923
• Docket Number: 12496.
• Citation: 220 P. 631,93 Okla. 203,1923 OK 962
• Parties: MITCHELL v. MCCOLLISTER.
• Court: Oklahoma Supreme Court

220 P. 631

93 Okla. 203, 1923 OK 962

MITCHELL v. MCCOLLISTER.

No. 12496.

Supreme Court of Oklahoma

November 13, 1923

Syllabus by the Court.

Ownership of personal property is ordinarily a simple fact to which a witness having the requisite knowledge can testify directly and, in an action of replevin, a question as to who is the owner of the property involved, where such question involves a fact clearly within the knowledge of the witness, and not the expression of an opinion upon facts proven, is admissible.

Agency and the extent of authority may be proved by the testimony though not by the declarations of the agent.

Where there is competent evidence tending to establish each fact necessary to support the plaintiff's cause of action, it is error to sustain a demurrer to such evidence.

Commissioners' Opinion, Division No. 4.

Appeal from District Court, Osage County; Chas. B. Wilson, Jr. Judge.

Action by Joseph D. Mitchell against Ira A. McCollister. Judgment for defendant, and plaintiff appeals. Reversed and remanded with directions.

H. W. Conyers, of Pawhuska, for plaintiff in error.

Grinstead & Scott, of Pawhuska, for defendant in error.

DICKSON C.

This is an action in replevin commenced by the plaintiff in error, plaintiff below, against the defendant in error, defendant below, filed for the purpose of recovering possession of certain furniture and fixtures specifically described in the plaintiff's petition. An affidavit in replevin was made, and a replevin bond was approved and filed, and the writ issued. The defendant executed a redelivery bond, and retained possession of the property. The pleadings were in the ordinary form.

The case was tried on the 23d day of March, 1921, and at the close of the plaintiff's case the court sustained a demurrer to the evidence, and entered judgment for the defendant for costs. Motion for a new trial was filed and overruled, and the plaintiff has appealed to this court, and assigns the following errors:

"First. Said court erred in overruling the motion of plaintiff in error for a new trial.

Second. Said court erred in refusing to allow plaintiff in error to introduce competent evidence, and duly excepted to by plaintiff.

Third. Said court erred in sustaining the defendant's in error demurrer to the plaintiff's in error evidence and giving judgment to the defendant in error against the plaintiff in error for costs, over the objections of the plaintiff, and duly excepted to by him.

Fourth. Said court erred in sustaining the demurrer of the defendant in error to the plaintiff's in error evidence, and in not permitting the case to go to the jury, over the objections and exceptions of the plaintiff."

We have examined the defendant's brief and the record in this case, and are constrained to agree with the plaintiff that each of the errors assigned is well taken.

On the trial the plaintiff testified that he purchased the personal property involved in this suit the latter part of January 1921, from one F....