Musgraves v. First Nat. Bank of Addington

• Decision Date: 12 November 1929
• Docket Number: Case Number: 18745
• Citation: 1929 OK 486,284 P. 15,139 Okla. 259
• Parties: MUSGRAVES v. FIRST NAT. BANK OF ADDINGTON.
• Court: Oklahoma Supreme Court

1929 OK 486

284 P. 15

139 Okla. 259

MUSGRAVES v. FIRST NAT. BANK OF ADDINGTON.

Case Number: 18745

Supreme Court of Oklahoma

Decided: November 12, 1929

Syllabus

¶0 Replevin--Effect of Giving Redelivery Bond as Admission of Ownership and Possession of Mortgaged Chattels.

Where, in a replevin action, the defendant, upon service of summons and the order of replevin, executes a redelivery bond, and thus prevents plaintiff from obtaining possession of the property sought to be replevied, he thereby admits that he is in possession of the property, and he and his sureties on the redelivery bond are estopped from setting up the defense that he did not own the property described in the mortgage at the time the mortgage was given and did not have the property at the time of the service of the writ of replevin.

Error from District Court, Jefferson County; M. W. Pugh, Judge.

Action by the First National Bank of Addington against W. A. Musgraves. Judgment for plaintiff, and defendant appeals. Affirmed.

J. H. Harper, Hays Dillard, and E. L. Dillard, for plaintiff in error.

J. L. Vertrees and Anderson & Anderson, for defendant in error.

HUNT, J.

¶1 This action was begun in the district court of Jefferson county by the plaintiff, First National Bank of Addington, Okla., defendant in error here, against the defendant, W. A. Musgraves, plaintiff in error here, to recover judgment on a promissory note and for possession of certain personal property covered by chattel mortgage given to secure said note. For convenience the parties will be referred to here as they appeared in the court below.

¶2 Upon the filing of proper affidavit and bond by plaintiff, a writ of replevin was issued covering the property described in the mortgage, and within 24 hours after service of same on defendant he executed a redelivery bond and retained possession of the property. Defendant answered by general denial. Upon trial of the case, after both sides had rested, plaintiff moved the court to withdraw the case from the jury and render judgment for the amount sued for and to fix the value of the cattle and live stock covered by the mortgage. The court sustained plaintiff's motion for judgment and rendered judgment for the amount of the note, leaving the only issue to be submitted to the jury the question as to the value of the property, and then recessed until the following day. When court reconvened, defendant was recalled as a witness and permitted, over the objection of plaintiff, to testify as to certain circumstances surrounding the execution of the note and mortgage and as to whether or not he had on hand at the time of the execution of the mortgage all the property covered thereby. At the conclusion of this testimony, defendant asked leave to amend his answer to show that the note and mortgage were obtained through fraud and misrepresentation; that defendant could neither read nor write and did not know what property was described in the mortgage and same was not read over to him, and that the property described in the mortgage had already been sold and the proceeds therefrom paid to the bank, all of which was well known to the plaintiff bank and was not known to defendant until after the evidence had been introduced in this case. Plaintiff objected to this amendment for the reason that the allegation that said alleged facts were not known to defendant until the evidence was introduced in this case was untrue because defendant had theretofore testified to substantially the same facts upon a hearing had in this case upon a motion filed by the surety on the redelivery bond, and for the further reason that both plaintiff and defendant had rested and the case had been closed on the day before and witnesses of plaintiff had been relieved from further attendance on the court, some of whom lived outside of the county and had left for their homes. The objection of plaintiff was sustained, and the motion of defendant to amend his answer was denied. Whereupon the court submitted to the jury the question as to the value of the cattle, horses, and other property enumerated in the writ of replevin, with directions to fix the value and to enumerate each article.

¶3 The jury returned its verdict fixing the total value of the property at $ 5,707. Judgment was entered for the plaintiff for the amount due on the note in the sum of $ 3,098.04, with interest thereon at the rate of 10 per cent. and for attorney fees in the sum of $ 279.83 and for the return of the property as described in the writ of replevin.

¶4 The journal entry of judgment further provided:

"and in the event a return of said property cannot be had that the value thereof be and the same is hereby, upon the answer of the jury, fixed at the sum of $ 5,707. It is further ordered by the court that if all or any part of the said property is delivered to the plaintiff, that it proceed to advertise and sell the same according to the terms of its mortgage, and apply the proceeds arising from such sale toward the satisfaction of this judgment, and that if the proceeds from such sale are not sufficient to satisfy the judgment rendered herein in favor of plaintiff, then the plaintiff shall have judgment against the defendant for the portion thereof remaining unpaid."

¶5 Motion for new trial was filed in due time and overruled, and from the order and judgment of the court, the defendant prosecutes this appeal.

¶6 Some 14 assignments of error are included in the petition filed herein, only nine of which, being 11, 12, 13, 14, 6, 4, 5, 10, and 1, are argued in the brief of plaintiff in error, in the order named, and while in presenting them in this manner plaintiff has hardly complied with the rules of the court as to submitting same in an orderly manner, we will consider each assignment presented and treat Nos. 2, 3, 7, 8, and 9 as waived.

¶7 Summarized, defendant's contention seems to be that the court committed reversible error in the admission of certain evidence offered on the part of the plaintiff as to the value of the property described in the mortgage and in excluding certain testimony offered by defendant on this point and as to circumstances under which the note and mortgage were executed, which defendant claims amounted to fraud and misrepresentation, and that the court erred in refusing to permit ...