Public Finance Co. v. Jump

• Decision Date: 27 April 1943
• Docket Number: 30869.
• Citation: 136 P.2d 706,192 Okla. 368,1943 OK 162
• Parties: PUBLIC FINANCE CO. v. JUMP.
• Court: Oklahoma Supreme Court

136 P.2d 706

192 Okla. 368, 1943 OK 162

PUBLIC FINANCE CO. v. JUMP.

No. 30869.

Supreme Court of Oklahoma

April 27, 1943

Syllabus by the Court.

1.In an action for damages in conversion where the defendants are non-residents and it is sought to obtain jurisdiction of funds in the hands of a resident garnishee and serve notice upon the defendants by publication, both the affidavit to obtain service by publication, and the notice by publication must reasonably describe the funds sought to be impounded by the writ of garnishment.

2.Where the plaintiff proceeds by substitute service under the provisions of 12 O.S.1941 § 158, the notice to the non-resident defendants must be as specific as the notice required to be given by publication under the provisions of 12 O.S.1941 § 170.

Appeal from District Court, Osage County; Hugh C. Jones, Judge.

Action for conversion of an automobile by W. L. Jump against Public Finance Company, a copartnership composed of J. E. Crane, C D. Grant, and Anna L. Lewis, and others.Judgment for plaintiff and the named defendants appeal.

Reversed and remanded with directions.

Hamilton & Kane, of Pawhuska, and George Templar, of Arkansas City Kan., for plaintiff in error.

Johnson & Johnson, of Fairfax, for defendant in error.

PER CURIAM.

This action was commenced on the 25th day of February, 1941, by the plaintiffW. L. Jump against Ross Crawford, Farmers State Bank of Burbank, Oklahoma and Public Finance Company of Arkansas City, Kansas, a corporation, to recover $599.30 actual damages and $1,000 exemplary damages for conversion of an automobile.

The proceeding was dismissed as to the Farmers State Bank of Burbank and in the amended petition filed April 23, 1941, the plaintiff named the Public Finance Company, a co-partnership consisting of J. E. Crane, C. D. Grant and Anna L. Lewis together with the defendantRoss Crawford.

Following the filing of the amended petition on April 23, 1941, D. E Johnson, attorney for the plaintiff, filed an affidavit to obtain service by publication stating that plaintiff has filed his petition against said above named defendants alleging damages to him by the action of the defendants and that the Public Finance Company, a co-partnership, composed of J. E. Crane, C. D. Grant and Anna L. Lewis, are non-residents of the State of Oklahoma but have property and debts owing them in the State and County; that the action is brought for damages and garnishment of money and property in the state belonging to said non-resident defendants; that this is one of the classes of cases prescribed by the statutes of Oklahoma in which service by publication may be had.

Notice by publication was published in the Fairfax Chief of Fairfax, Oklahoma, April 24, and May 1, 8, and 15, 1941.The notice is as follows:

"W. L. Jump, Plaintiff, vs. Ross Crawford, doing business as Crawford Motor Company, and Public Finance Company, a co-partnership consisting of J. E. Crane, C. D. Grant and Anna L. LewisDefendants; Robert Hampton, Garnishee.

Said defendants, Public Finance Company, a copartnership consisting of J. E. Crane, C. D. Grant and Anna L. Lewis, will take notice that they have been sued in the above named Court for damages, and for garnishment of money and property owing to them in Osage County, Oklahoma, and must answer the petition filed therein by said plaintiff on or before the 6th day of June, A. D., 1941, or said petition will be taken as true, and a judgment for said plaintiff in said action for actual and punitive damages in the sum of One Thousand Five Hundred Ninety Nine and 30-100 ($1599.30) Dollars, and garnishment of money and property owing to them in Osage County, Oklahoma, will be rendered accordingly.

Dated this 23rd day of April, 1941.

Johnson & Johnson

By D. E. Johnson

Attorney for Plaintiff

Attest:

Sam Gilmore, Court Clerk

by Guy Marple, Deputy."

On the 8th day of May, 1941, D. E. Johnson, attorney for the plaintiff, filed an affidavit of mailing stating that on the 28th day of April, 1941, copies of the amended petition and the notice by publication were mailed to said defendants by depositing the same in the Post Office at Fairfax, Oklahoma.On the 22nd day of May, 1941, D. E. Johnson filed a garnishment affidavit stating that suit had been brought for $1,599.30 against the Public Finance Company, a co-partnership consisting of J. E. Crane, C. D. Grant and Anna L. Lewis and that Robert Hampton is indebted to said defendants and on the same date a garnishment summons issued to Robert Hampton.On the 27th day of June, 1941, D. E. Johnson filed an affidavit stating that on the 23rd day of May, 1941, he mailed a copy of the summons in garnishment to the Public Finance Company, a co-partnership composed of J. E. Crane, C. D. Grant and Anna L. Lewis by depositing the same in the post office at Fairfax, Oklahoma.On the 8th day of July, 1941, D. E. Johnson filed a garnishment affidavit stating, in substance, the matters formerly stated in his affidavit for garnishment and that Robert Hampton, O. A. Maxey and Ed McGuire were indebted to the Public Finance Company, a co-partnership, consisting of J. E. Crane, C. D. Grant and Anna L. Lewis.On the same date a garnishment summons was issued and served on Robert Hampton, O. A. Maxey and Ed McGuire on July 10, 1941.Return of service recites that a copy of this garnishment summons was served on W. S. Hamilton, attorney for the Public Finance Company, a co-partnership, composed of J. E. Crane, C. D. Grant and Anna L. Lewis on July 14, 1941, by the sheriff of Osage County, Oklahoma.On July 8, 1941, a summons was issued by the court clerk of Osage County, Oklahoma, which is as follows:

"Summons--District Court

State of Oklahoma, County of Osage ss

In the District Court of Osage County, State of Oklahoma, Summons to non-resident.

The State of Oklahoma to Public Finance Company, a co-partnership consisting of J. E. Crane, C. D. Grant and Anna L. Lewis(of Arkansas City, State of Kansas), Greeting:

You are hereby notified that you have been sued by W. L. Jump in the District Court sitting in and for said County of Osage and that unless you answer the petition filed herein by the said W. L. Jump against you on or before the 20th day of September, 1941, said petition will be taken as true and judgment rendered accordingly.

Witness my Hand and Seal of said Court, affixed at my office in Pawhuska, Oklahoma, this 8th day of July, 1941, A. D.

Sam Gilmore, Court Clerk

By Guy Marple, Deputy.

Suit brought for damages for conversion of an automobile.

If you fail to answer, judgment will be taken for the sum of $1599.30, with interest at the rate of ______ per cent per annum, from the ______ day of ______, 192--, and costs of suit.

Sam Gilmore, Court Clerk

Seal By Guy Marple, Deputy."

This summons was served on each member of the co-partnership July 14, 1941, by the sheriff of Cowley County, Kansas, and is duly verified by the officer serving the same.On the same date a copy of the summons in garnishment issued to Robert Hampton, O. A. Maxey and Ed McGuire on the 8th day of July, 1941, was delivered to each member of the co-partnership comprising the defendantPublic Finance Company.The return on the garnishment summons was not verified by the sheriff of Cowley County, Kansas.

The garnishee, Robert Hampton, answered that he had funds to the extent of $375 and Ed McGuire that he had funds to the extent of $267.88, belonging to the defendants.These funds were by stipulation paid into court to await the action of the trial court.Judgment was returned for $250 actual damages and $100 exemplary damages against Ross Crawford and Public Finance Company, consisting of J. E. Crane, C. D. Grant and Anna L Lewis.The members of the co-partnership constituting the Public Finance Company alone appeal.They shall be referred to hereinafter for convenience as the defendants.The evidence is not included in the case-made and the errors are those of law, dealing solely with the...