Pierce v. Engelkemeier
| Decision Date | 30 June 1900 |
| Court | Oklahoma Supreme Court |
| Parties | W. F. PIERCE, Sheriff of Kay County, v. ELIZABETH ENGELKEMEIER. |
Error from the District Court of Kay County; before Bayard T. Hainer, District Judge.
¶0 1. REPLEVIN, ACTION IN--Parties Defendant--Substitution. In an action in replevin, in which the sheriff was defendant, and an application was made by the judgment creditors to be "substituted as defendants herein," and in which the property had not been replevied by the plaintiff, but was in the possession of the judgment creditors, who were non-residents, and in which the application was not made before answer, and was unverified, and in which no security for costs was offered or given, it was properly refused by the district court.
2. SAME. The permission to substitute is, at any rate, discretionary with the court, and error cannot be assigned upon it unless the discretion is abused.
3. CONTINUANCE--Grounds for. Under the circumstances as shown in this case, an application for continuance on the ground of the sickness of one of the attorneys in the cause, was refused by the trial court. The sickness of an attorney is not one of the statutory grounds entitling the party to a continuance. It is discretionary with the court to grant or refuse it.
4. CASE-MADE, MUST CONTAIN, WHAT. The case-made should show in itself that it contains all the evidence, and when it is manifest from internal evidence, that the case-made is seriously imperfect, and does not, in fact, contain all the evidence produced in the cause, it is impossible to determine assignments of error, touching the improper admission of evidence, the property of certain instructions asked by the defendant, or the proposition that the verdict is not sustained by sufficient evidence.
W. S. Cline and Ira A. Hill, for plaintiff in error.
Dale & Bierer, for defendant in error.
STATEMENT OF THE CASE.
This action was brought in the district court of Kay county, on the 26th day of September, 1897, by the defendant in error, who was the plaintiff below, to recover the value of three thousand bushels of wheat, one hundred and fifty head of hogs, one frame store building and a frame house. On the 29th day of July, 1897, the Bank of Blackwell obtained a judgment in the probate court of Kay county against Henry Engelkemeier for the sum of $ 351.91, and two days thereafter the United States School Furniture company and the Acme Harvester company obtained judgments against the same defendant in the same court for the respective sums of $ 764.93 and $ 145.15. Executions were issued upon these judgments and placed in the hands of the plaintiff in error, as sheriff of Kay county, and by him levied upon the property described in the petition, as the property of Henry Engelkemeier, the husband of the defendant in error.
It was claimed by the plaintiff that about July 19, 1897, her husband, Henry Engelkemeier, had transferred to her all of the property thus taken in settlement of a debt of $ 3,825.00, claimed to be due to her, in consideration of the proceeds of the sale, some years prior thereto, of eighty-five acres of land in Nebraska, which had belonged to her, and which had passed by her consent and as a loan into the hands of her husband.
A jury was impanelled to try the cause. It returned a verdict in favor of the plaintiff, defendant in error here, for the recovery of the property, or the value thereof, assessed at $ 2,821.75, in case a delivery thereof could not be had, and judgment was rendered thereupon. The property had not been taken under the writ of replevin.
¶1 When the case came on for trial, application was made by the United States School Furniture company, the Acme Harvester company and the Bank of Blackwell, to be substituted as defendants herein. This application was denied, and the denial is assigned as error.
¶2 The application was based upon sec. 3917 of the code of civil procedure, which provides, that: "In an action against a sheriff or other officer, for the recovery of property taken under an execution, and replevied by the plaintiff in such action, the court may, upon application of the defendant and of the party in whose favor the execution issued, permit the latter to be substituted as the defendant, security for the cost being given," and upon sec. 3906, which provides, that: "Any person may be made a defendant that has or claims an interest in the controversy adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved."
¶3 The property in this case was not "replevied by the plaintiff in the action." The defendant made no request to be admitted to the cause as associate defendant with Pierce, the sheriff, and no security for costs was proffered in behalf of the judgment creditors, who sought to be "substituted" in lieu of the sheriff. The judgment creditors are non-residents, and since no security for costs was given or proffered, if the order which was sought for had been made, the court would have done to the plaintiff the injustice of permitting non-residents to be substituted in lieu of the resident sheriff, and if the order had been made as requested by the creditor companies, the plaintiff would have been compelled to seek for the recovery of costs, not against the resident sheriff, but against the non-resident companies or corporations.
¶4 It will be found upon an examination of sec. 3917 and the two sections that precede it; to-wit, sections 3915 and 3916 of the code of civil procedure, that the relief provided for in the former section must be sought in the terms and under the provisions of the preceding sections, one of which is, that:
¶5 The application in this case was not made until after the issues had been made up and the case set for trial, and the application was not verified as provided by the statute. The defendants did not, therefore, bring themselves within the provisions of the statute relied upon, and conformity with which would alone have justified the court in making the order asked for, and the power given to the court by the statute is discretionary, and the court "may exercise it or not."
¶6 It was said by the supreme court of Kansas, upon the statute under consideration, in Wafer v. Harvey Co. Bank. 36 Kan. 292, 13 P. 209, (Chief Justice Horton) that:
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...to the question sought to have reviewed. Shumaker v. O'Brien, 19 Kan. 476; Davis v. Ringer, 1 Kan. App. 32, 41 P. 676; Pierce v. Engelkemeier, 10 Okla. 308, 61 P. 1047; Territory v. Cooper, 11 Okla. 699, 69 P. 813. ¶3 A case-made being, as said by Burdick, "a written statement of the facts ......
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