Stone v. Coleman, 50137

Citation557 P.2d 904
Decision Date07 December 1976
Docket NumberNo. 50137,50137
CourtSupreme Court of Oklahoma
PartiesAlexander J. STONE et al., Petitioners, v. S. Thomas COLEMAN, Jr., Special Judge of the District Court of Tulsa County, Respondent.

Hall, Estill, Hardwick, Gable, Collingsworth & Nelson by Mack Muratet Braly, Tulsa, for petitioners.

Ronald A. Skoller, Tulsa, for respondent.

LAVENDER, Justice:

This original action involves the interpretation of 12 O.S.1971, § 848. 1 The contempt order is used as a procedural device here. The order itself is not the central issue. Parties understand that if the contempt order is allowed to stand the petitioner will purge himself of contempt by compliance with a subpoena duces tecum to produce books and records.

A money judgment was rendered in the District Court of Tulsa County. By supplementary proceedings in that cause, the judgment creditor sought aid in execution of judgment. 12 O.S.1971, § 841 et seq. In a disclosure of assets hearing (§ 842) the judgment debtor testified of substantial monies paid to a third party corporate entity by assignment of contract proceeds. Thereafter and under §§ 848, 849 an order in the general form of a subpoena duces tecum was directed to this third party witness. The form and service of this order is not an issue. It calls for the witness to produce all documents, books, and records of all transactions between the judgment debtor and the third party entity. This includes indebtedness and payment of the judgment debtors to that third party.

The petitioners, as third party witnesses, argue § 848 limits their testimony (1) to oral matters, with use of records limited to refreshing the memory of the witness and not general inspection, and (2) the proper predicate of materiality is required for use of records which is absent here. The judgment creditor, through the respondent, argues no limitation under § 848 of the third party witness to oral testimony alone; and as a tool of discovery, no predicate of materiality is necessary, but if required, it is met here.

Parties argue as to application and meaning of case law from foreign jurisdictions that are not of current origin. We look principally to the language of § 848 itself, as controlling in the third party situation, as here. This type of witness may be required to testify 'in the same manner as upon the trial of an issue.' Section 848, supra, is a trial procedure and not a discovery procedure. Discovery statutes requiring matters subject to discovery to be 'relevant' mean those materials either (1) admissible as evidence or (2) which might lead to the disclosure of admissible evidence. Carman v. Fishel, Okl., 418 P.2d 963 (1966). The testimony allowed to be secured by § 848, supra, should be admissible as evidence as in a trial. It is not enough the testimony might lead to the disclosure of admissible evidence.

' Under order of the judge,' the third party witness may be required 'to appear' in the same manner as in the trial of an issue. We see no rationale to limit that appearance to oral testimony. That court's order in a subpoena form requiring an appearance may include a clause directing the production of books, writing, or other things which the witness is bound by law to produce as evidence. 12 O.S.1971, § 387. That evidence must be relevant. It must be admissible in evidence. In Carman, supra, it was the discovery statute § 548, and not the subpoena duces tecum statute, § 387, supra, that controls what the witness is bound by law to produce. Here it is § 848 that controls.

In the July 1, 1976, hearing and examination of the judgment debtor, he...

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4 cases
  • Ramco Operating Co. v. Gassett, 84543
    • United States
    • Oklahoma Supreme Court
    • 14 d2 Fevereiro d2 1995
    ...Whether a witness possesses property of the debtor or owes property to the debtor are relevant inquiries pursuant to § 850. Stone v. Coleman, 557 P.2d 904 (Okla.1976). We have observed that § 848 is a trial procedure and not for the purpose of discovery. Stone v. Coleman, 557 P.2d at In a §......
  • Bowles v. Goss
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 16 d2 Julho d2 2013
    ...matters are supplemental proceedings in aid of execution and [309 P.3d 154]are equitable in nature. Stone v. Coleman, 1976 OK 182, ¶ 2, 557 P.2d 904;Treadway v. Collins, 1947 OK 98, ¶ 11, 178 P.2d 886, 889. “[T]he propriety of affording equitable relief, [pursuant to these provisions] rests......
  • Auto. Fin. Corp. v. Rogers, Case No. 115,626
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 1 d5 Março d5 2019
    ...matters are "supplemental proceedings in aid of execution and are equitable in nature." Id ., (citing Stone v. Coleman , 1976 OK 182, ¶ 2, 557 P.2d 904 ). As here, a "proceeding to disclose assets" pursuant to § 842 is "a special proceeding in an action after judgment." Weaver v. Fourth Nat......
  • Auto. Fin. Corp. v. Rogers
    • United States
    • United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma
    • 27 d3 Março d3 2019
    ...matters are "supplemental proceedings in aid of execution and are equitable in nature." Id., (citing Stone v. Coleman, 1976 OK 182, ¶ 2, 557 P.2d 904). As here, a "proceeding to disclose assets" pursuant to § 842 is "a special proceeding in an action after judgment." Weaver v. Fourth Nat. B......

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