S. Sur. Co. v. Williams
| Decision Date | 11 October 1921 |
| Docket Number | Case Number: 10169 |
| Citation | 201 P. 244,1921 OK 353,83 Okla. 171 |
| Parties | SOUTHERN SURETY CO. v. WILLIAMS et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Pleading--Judgment on Pleadings. Where the answer of the defendant raises an issue of fact, and both plaintiff and defendant move for judgment on the pleadings, it is error for the court to grant the plaintiff's motion.
2. Same--Motion--Waiver of Right to Jury Trial. The defendant by presenting a motion for judgment on the pleadings does not thereby waive the right to have an issue of fact set out in his answer tried to a jury.
Calvin Jones, for plaintiff in error.
Howe & Stanley and E. A. Blythe, for defendants in error. Works & Pascal, for Eastman Roberts.
¶1 This was an action upon the official bond of Eastman Roberts as guardian of the minors whose names appear in the caption of this action. The Southern Surety Company was sued as surety. The bond involved is what is generally known in this jurisdiction as a special sales bond for the sale of real estate. It was alleged in the petition of the plaintiffs that Eastman Roberts, the principal, breached this bond by failing to account for the sum of $ 700, the same being the purchase price paid to him for a tract of land belonging to his wards, sold at guardian's sale. It was further alleged that in a proceeding questioning the correctness of Eastman Roberts' final account as guardian the probate court found that by the silence, concealment, and conduct of said Eastman Roberts respecting the said $ 700 item no knowledge of it was brought to the attention of the court; that the same had been disposed of by said Eastman Roberts, and that he had never made any account respecting the same, wherefore the said court ordered Eastman Roberts to pay said $ 700 to Isreal Williams as the present legally acting guardian. Copies of this order and the bond sued upon were attached to the petition as exhibits and made a part thereof. The answer, after denying each and every material allegation of the petition except such as were thereinafter specifically admitted, further alleged, in substance, that any and all sums of money derived from the sale of said real estate were duly and regularly expended by the guardian for the sole use and benefit of said minors for the necessaries to support, maintain, and educate the said minors owning an interest in said real estate, all of which said sums were so expended as aforesaid by the said guardian under the orders, and with the approval of the county judge of Choctaw county, Oklahoma, and the said minors whose interests in said real estate were sold have received the full benefit of all of the purchase money of the said real estate mentioned in said petition for the necessary support and maintenance of the said minors so interested as aforesaid. The reply was a general denial of each and all allegations of said answer inconsistent with plaintiff's petition. After the issues were thus joined, the defendant Southern Surety Company filed its motion for judgment on the pleadings as follows:
"Comes now the defendant, Southern Surety Company, and moves the court to render judgment in favor of the defendant, Southern Surety Company, and against said plaintiffs upon the pleadings on file herein."
¶2 Whereupon, the plaintiffs filed their motion for judgment on the pleadings as follows:
"Comes now said plaintiffs and move the court to render judgment herein for them on the pleadings filed in this cause for the reason that plaintiff's petition is verified and defendants' answer unverified."
¶3 These motions coming on for hearing, the court sustained the motion of the plaintiffs and rendered judgment in their favor against the Southern Surety Company and the former guardian, Eastman Roberts, for the sum of $ 600. It is to reverse this action of the trial court that this proceeding in error was commenced. Originally the cause was submitted in this court on the brief of counsel for the plaintiff in error, there being no brief filed in behalf of the defendants in error. The court, without noticing the authorities cited by counsel in...
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Thompson v. Bonner
...such silence, act and conduct as to amount to a waiver of the issues of facts presented by their pleadings. ¶14 In Southern Surety Co. v. Williams, 83 Okla. 171, 201 P. 244, in the syllabus it was said:"Where the answer of the defendants raises an issue of fact and both plaintiff and defend......
- Southern Sur. Co. v. Williams