Southeast Veterinary Hospital, Inc. v. Fingerlin, 42525

• Decision Date: 09 June 1970
• Docket Number: No. 42525,42525
• Citation: 470 P.2d 1006
• Parties: SOUTHEAST VETERINARY HOSPITAL, INC., a corporation, and Cecil G. Wells, Jr., Plaintiffs in Error, v. Eugene FINGERLIN, Jr., Defendant in Error.
• Court: Oklahoma Supreme Court

Page 1006

470 P.2d 1006

SOUTHEAST VETERINARY HOSPITAL, INC., a corporation, and Cecil G. Wells, Jr., Plaintiffs in Error, v. Eugene FINGERLIN, Jr., Defendant in Error.

No. 42525.

Supreme Court of Oklahoma.

June 9, 1970.

Appeal from the Common Pleas Court of Tulsa County; Joe Jennings, trial judge.

Action for an accounting and for money judgment against corporate defendant and individual defendant; answer of defendants alleged affirmative cause of action against plaintiff and prayed for relief; subsequent dismissal by plaintiff of his "first cause of action" in which he sought recovery against the corporate defendant did not have the effect of removing the latter as a party to the litigation, but pursuant to 12 O.S. 1961 § 684, said defendant may be heard upon its counterclaim. Order of trial court refusing corporate defendant permission to intervene vacated and cause remanded.

Owens & Goodman, Jerry L. Goodman, Tulsa, for plaintiffs in error.

Crawford, Rizley & Prichard, Glenn F. Prichard, David L. Wolfe, Jr., Tulsa, for defendant in error.

LAVENDER, Justice.

This appeal represents a challenge to the validity of an order of the trial court refusing to permit one of the plaintiffs in error, Southeast Veterinary Hospital, Inc., to intervene in the action in the trial court. We are of the view that the matter is more properly subject to disposition here because the said corporation was made a party defendant in the initial stages of the litigation; relief against it was sought by the plaintiff; and the corporation subsequently filed an answer in which it pleaded facts which substantially alleged a cause of action for affirmative relief against the plaintiff, and therefore the subsequent dismissal by plaintiff of his 'cause of action' involving the corporation did not have the effect of removing that entity as a party from the litigation, but under 12 O.S.1961, § 684 and Brown v. Massey (1907), 19 Okl. 482, 92 P. 246, the said defendant should be permitted a hearing upon its prayer for affirmative relief against said plaintiff.

The circumstances giving rise to the controversy are, as briefly as we can state them, the following:

On June 9, 1965, the plaintiff (defendant in error) filed his petition in the trial court in which he alleged that on or about September 1, 1964, the above corporate party entered into a contract with him by the terms of which plaintiff was to put up $500.00 as a capital investment in exchange for which he was to be employed by the corporation at a salary equal to 50% Of the net profits of the corporation; that he (plaintiff) thereafter performed his part of the agreement for a period from September 1, 1964, to January 30, 1965, for all of which period he received certain payments (identifying them as to amounts) but that such payments were inadequate to satisfy the terms of the contract. He prayed for an accounting against the corporation and for judgment in his favor for any deficiency in money that might be due him.

Although it does not seem to directly involve the corporate party, for a full understanding of the controversy, it should also be stated that in that same petition plaintiff alleged that Cecil G. Wells, Jr. (the other plaintiff in error in this court), in consideration of plaintiff's promissory note for $25,000.00, transferred to plaintiff 50% Of the capital stock of the said corporation. (It appears undisputed that at that time Wells owned all of such stock.) A written agreement was alleged. A copy of it was attached. In that instrument it is provided that at any time prior to March 1, 1965, plaintiff should be permitted to withdraw from the arrangement 'without penalty.' Plaintiff's petition then went on to allege certain payments made to Wells during the term of plaintiff's 'employment' for which amounts, together with interest thereon, plaintiff sought to have refunded to him in the form of a judgment against Wells in plaintiff's favor. Plaintiff's theory apparently being that to permit Wells to retain these...