Texas-Omar Gasoline & Oil Co. v. North American Car Co.
| Decision Date | 09 November 1926 |
| Docket Number | 15373. |
| Citation | 251 P. 1010,123 Okla. 57,1926 OK 893 |
| Parties | TEXAS-OMAR GASOLINE & OIL CO. et al. v. NORTH AMERICAN CAR CO. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 11, 1927.
Syllabus by the Court.
An affidavit for publication is sufficient where it states that "the plaintiff, with due diligence, is unable to make service of summons upon the defendant or defendants within the state," as provided by section 250, C. S. 1921.
Under section 387, C. S. 1921, where the jury returns a verdict in favor of the defendant and judgment is rendered thereon by the court, an attachment which has been levied against the property of the defendant is discharged, and the defendant is entitled to a return of same.
Commissioners' Opinion, Division No. 3.
Appeal from District Court, Tillman County; Thomas H. Edwards Judge.
Action by the North American Car Company against the Texas-Omar Gasoline & Oil Company and others, in which only the defendant Omar Gasoline Company answered. Judgment for the answering defendant. From a default judgment as to other defendants, sustaining and foreclosing an attachment of property in the possession and control of the answering defendant, defendants appeal. Reversed and remanded, with directions.
P Mounts, of Frederick, and J. T. Johnson, of Oklahoma City for plaintiffs in error.
Louis W. Pratt and James M. Springer, both of Tulsa, for defendant in error.
This suit was instituted in the district court of Tillman county by the defendant in error, as plaintiff, against plaintiffs in error, as defendants, to recover $10,475.96 rentals due the plaintiff by the defendants, as evidenced by a certain rental or lease contract whereby the plaintiff, North American Car Company, leased to the defendant Texas-Omar Gasoline & Oil Company a certain number of oil tank cars at a stipulated rental per month, for a period of three years, and the amount sued for was the balance due the plaintiff by defendants, under the terms of the rental contract. It is disclosed by the record that the defendant Texas-Omar Gasoline & Oil Company was succeeded by the Omar Consolidated Gas Company, and that the Omar Consolidated Gas Company was succeeded by the Omar Gas Company; the first-named defendant was a corporation, and the two other defendants were common-law trusts that seem to have been organized under the laws of Colorado. The reorganizations appear to have been brought about for the purpose of increasing the stock and assets of the company to meet outstanding indebtedness and obligations then due, and the organizations were affected by an exchange of stock held in the old company for stock issued by the new, and no other or additional consideration passed all of the property owned by the old company was transferred and assigned to the new; all debts and liabilities of the old company are alleged to have been assumed by the new; and the persons who were the officers of the corporation were named as trustees of the common-law trusts, appellants here.
The Omar Gasoline Company, the last of the three to be created by the reorganization heretofore mentioned, filed an answer by way of general denial, and, further answering, specifically denied that it assumed or was in any wise obligated for the indebtedness sued upon by the plaintiff, the North American Car Company. The other defendants named defaulted.
Upon the trial of the case to the court and jury, the jury returned a verdict in favor of the answering defendant Omar Gasoline Company and against the plaintiff, finding that there was no liability on the part of the Omar Gasoline Company. Judgment was rendered by the court, in accordance with the verdict of the jury, and no appeal was taken by the defendant in error, the North American Car Company, from this judgment.
Subsequent to the return of the jury's verdict, the court rendered default judgment against the defendants Texas-Omar Gasoline & Oil Company and the Omar Consolidated Gas Company, and sustained the attachment which had been duly executed, whereby a certain pipe line was attached which, according to the allegations of the plaintiff's petition, had been duly assigned and conveyed to each succeeding organization, and which was, at the time of the institution of this suit, in the possession of and owned and controlled by the last-named defendant, Omar Gasoline Company, against whom no judgment was obtained. From the judgment of the court sustaining the attachment and foreclosing same for the purpose of paying or being applied upon the judgment of the defaulting defendants, the appellants prosecute this appeal and assign numerous specifications of error.
The first proposition urged by appellants is that the judgment sustaining the attachment against the Texas-Omar Gasoline & Oil Company is void for the reason that the affidavit for publication is wholly insufficient to warrant a judgment against the Texas-Omar Gasoline & Oil Company, and cites as an authority in support of this contention the case of Morgan v. Stevens, 101 Okl. 116, 223 P. 365, wherein this court places a construction on sections 5612 and 5613, Comp. Laws 1909, authorizing service by publication and providing the kind of affidavit necessary to be filed as follows:
"Under sections 5612 and 5613, Comp. Laws 1909, an affidavit for service by publication, which alleges that the defendant is a nonresident of the state and service cannot be had upon him within the state, is not void or voidable, because facts are not stated therein showing that plaintiff, by the use of due diligence, was unable to make service of summons upon the defendant; but, where the affidavit alleges that the defendant is a nonresident of the state and service of summons cannot be made on said defendant w...
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