Tipton v. Standard Installment Finance Co.

• Decision Date: 20 September 1966
• Docket Number: No. 41164,41164
• Citation: 418 P.2d 309
• Parties: Helen P. TIPTON and Homer Tipton, Plaintiffs in Error, v. STANDARD INSTALLMENT FINANCE COMPANY, (a corporation), Defendant in Error.
• Court: Oklahoma Supreme Court

Page 309

418 P.2d 309

1966 OK 160

Helen P. TIPTON and Homer Tipton, Plaintiffs in Error, v. STANDARD INSTALLMENT FINANCE COMPANY, (a corporation) Defendant in Error.

No. 41164.

Supreme Court of Oklahoma.

Sept. 20, 1966.

Syllabus by the Court

1. The provisions of 68 O.S.1961, sec. 1515, requiring that it be alleged and proved in every action for the collection of bonds, notes, accounts receivable, and other intangible property that said property has been assessed for taxation under the provisions of the Act and all taxes, interest and penalties thereon paid, are not applicable to an action in replevin for possession of specific personal property for the purpose of foreclosing a chattel mortgage thereon, which mortgage had been given to secure payment of a promissory note.

2. In a replevin action to enforce a chattel mortgage, it is error to render judgment in favor of plaintiff for a certain sum as the value of the property involved, in case it cannot be delivered to plaintiff, without evidence of the property's value; but, where the property is thereafter delivered under an execution of said judgment, and the defendant owners and mortgagors of the property neither claim, nor show, any prejudice to them by reason of said error, it will be regarded, on appeal, as harmless.

3. Under Tit. 12 O.S.1961, sec. 318, parties to court actions 'may' amend their pleadings '* * * if the court, in its discretion, shall direct'; and, where such parties are present, by their counsel, at a hearing on their adversary's combination motion to strike their answer and for judgment, when said motion is sustained, but have made no effort to amend their answer, and make no request for leave to do so, or to file any additional pleading to take the place of said answer, and make no showing that they have an effective defense to the action, they are in no position to claim, on appeal, that the court erred, or abused its discretion, in failing, or refusing, to allow a pleading substitution, or amendment.

4. In a replevin action to enforce a chattel mortgage, it is error to allow plaintiff an attorney's fee under Tit. 42 O.S.1961, sec. 176, without evidence as to its reasonableness, though the parties' contractual stipulation in the mortgage as to the amount of such a fee, may be considered evidence of reasonableness to support a recovery of no more than that amount.

Appeal from the Court of Common Pleas of Oklahoma County; Carl Traub, Judge.

Action by a chattel mortgagee against the mortgagors to recover possession of the mortgaged automobile (as a step in the foreclosure of said mortgage), wherein judgment was for plaintiff, and the property was thereafter delivered to it under execution. After the overruling of their motion for a new trial, defendants appeal. Affirmed on condition of remittitur; otherwise reversed.

Perry H. Winn, Oklahoma City, for plaintiffs in error.

James C. Hanna, Oklahoma City, for defendant in error.

BLACKBIRD, Justice.

This is an appeal on original record in an action by defendant in error, hereinafter referred to as plaintiff, against plaintiffs in error, hereinafter referred to as defendants, to enforce certain provisions of a chattel mortgage on defendants' 1955 Model Oldsmobile automobile, securing repayment of an indebtedness in the principal sum of $533.20, evidenced by a promissory note defendants executed and delivered to plaintiff on November 27, 1962.

In the petition plaintiff filed in this case, on January 19, 1964, it alleged, among other things, the execution and delivery of the note and mortgage; and, both by other allegations and by copies of the note and mortgage, it represented that the note was payable in 23 installments of $23.21 each, on the 19th day of each month after its execution, and a last monthly payment of $22.37. Plaintiff's petition further alleged that defendants failed to pay all of the installment due September 19, 1963, and succeeding monthly installments then past due; that, by virtue of the mortgage, it held 'a lien upon, a special ownership in, and the right to the immediate possession of * * *' the automobile, and that defendants unlawfully withheld possession of said property of the value of $300.00 from plaintiff. The remainder of the petition was as follows:

'4. That on the 16th day of December, 1963, plaintiff demanded of said defendants possession of said property so held and detained by defendants and so described in said mortgage; but, said defendants refused to deliver the same or any part thereof to plaintiff and have so refused, and so hold the same ever since the 16th day of December, 1963.

'WHEREFORE, premises considered, plaintiff prays for an order of the court requring said defendants to deliver to plaintiff said personal property so unlawfully detained, or the value of the same in lieu thereof in case a delivery cannot be had and that plaintiff's attorney have and recover from defendants a reasonable attorney's fee and that it be taxed as part of the costs of this action for enforcing plaintiff's lien herein and that plaintiff have and recover from defendants all other costs of this action and that plaintiff be granted such other further relief to which it might be entitled.'

Thereafter, defendants, on May 1, 1964, filed an answer whose material allegations are accurately reflected in the court order hereinafter quoted.

Thereafter, plaintiff, on May 4, 1964, filed a motion to 'require the defendants' to strike the said answer, and for the court to render judgment in its favor, on the ground that said pleading stated no defense to the action.

Thereafter, the court made findings and entered the judgment reflected in the journal entry therefore, as follows:

'On the 15th day of May, 1964, this matter came on for hearing upon plaintiff's motion to require defendants to strike their entire joint answer filed herein and for judgment on the pleadings. Plaintiff appeared by and through its attorney of record, James C. Hanna, and the Defendants appeared by and through their attorney of record, Perry H. Winn. The court, having heard argument, having examined the pleadings herein and the copy of the note and mortgage on which this action was brought, and having been, otherwise, fully advised in the premises, finds, from the allegations and admissions of both parties and other matters in the pleadings herein, the following:

'1. That plaintiff's action herein is a replevin action brought to enforce its lien created by the mortgage herein on the automobile thereon described and that said mortgage shows thereon that it was executed by the defendants herein.

'2. That defendants' entire answer herein consists of only allegations that defendants filed their petitions in bankruptcy, that notice of same was given to their creditors, that plaintiff appeared at the first meeting of creditors therein, participated in the proceedings, filed no claims, asked for no relief, filed no objections to the discharge of defendants as bankrupts, that defendants subsequently received their discharge in bankruptcy, That the cause of action which is the basis of plaintiff's petition was due and owing to plaintiff at the date of filing of said petition to be declared a bankrupt, on the date of adjudication in bankruptcy, was included in the schedule of debts owing by defendants in their bankruptcy petition, that it was a debt provable against the estate of defendants in bankruptcy, and was not a debt created by their fraud, embezzlement, misappropriation, or defalcation while acting as a public officer, or as an executor, administrator, guardian, or trustee, or while acting in any other fiduciary capacity, and that Said answer does not contain any denial of plaintiff's allegations herein.

'3. That the virtue of no denial of plaintiff's allegations herein and no affirmative defenses disputing the default by plaintiff herein, all of the allegations of plaintiff's petition are to be taken as true; that by virtue of plaintiff's motion herein, all of defendants' defenses herein are to be taken as true; but that None of defendants' defenses herein are sufficient to bear a recovery herein by the plaintiff for the property sought herein, or the value of the same in lieu thereof in case a delivery cannot be had, and the costs of this action and that plaintiff's motion moving the court to require defendants to strike their entire joint answer and for judgment on the pleadings herein should be granted, to all of which defendants except and exceptions are allowed.

'IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that that part of plaintiff's said motion moving the court to require the defendants to strike their entire joint answer herein shall be, and is hereby, granted and that that part of plaintiff's said motion moving the court to render judgment on the pleadings herein shall be, and is hereby granted; and that judgment for the plaintiff be rendered and entered herein as prayed for in plaintiff's petition herein.' (Emphasis added.)

The same day, the court signed, and there was filed in the case, the following additional journal entry:

'In this action the plaintiff having made a motion for judgment in its favor on the pleadings, and said motion having been granted by an order of this court duly given and made on the 15th day of May, 1964; and the court finding that plaintiff's attorney is entitled to an attorney's fee herein to be fixed by the court as part of the costs of the action herein;

'NOW, THEREFORE, IT IS HEREBY ORDERED, ADJUDGED AND DECREED by the court that plaintiff have and recover of the defendants, Helen P. Tipton and Homer Tipton, the personal property sought herein and that plaintiff's attorney have recourse to all remedies available to it at law and equity to enforce delivery of said property to it by said defendants; and in case a delivery of said property cannot be had, the value of said personal property in the sum of $300.00, for all of which let execution...