Tootle, Wheeler & Motter Mercantile Co. v. Floyd
| Decision Date | 13 September 1910 |
| Citation | 114 P. 259,28 Okla. 308,1910 OK 287 |
| Parties | TOOTLE, WHEELER & MOTTER MERCANTILE CO. v. FLOYD. |
| Court | Oklahoma Supreme Court |
Rehearing Denied March 21, 1911.
Syllabus by the Court.
In the absence of a recital in the case-made that it contains all the evidence submitted or introduced on the trial, this court will not review any question depending upon the facts for its determination.
The order of attachment authorized to be issued by section 3346 Wilson's Rev. & Ann. St. 1903, upon the grounds therein named to enforce the collection of rents, is not limited to rents accruing on farm lands, and, when any of the grounds specified in the section exists, an order of attachment as therein provided may issue at the instance of the landlord to enforce the payment of rent on a store building.
Error from Osage County Court; C. T. Bennett, Judge.
Action by F. M. Floyd against the Tootle, Wheeler & Motter Mercantile Company. Judgment for plaintiff, and defendant brings error. Affirmed.
Grinstead & Mason, for plaintiff in error.
J. M Worten, for defendant in error.
HAYES J. (after stating the facts as above).
Several assignments of error have been presented, but they, in effect, present but two contentions for reversal, the first of which is that the evidence is insufficient to support the personal judgment against plaintiff in error. This contention cannot be considered. The case-made does not contain a positive averment by way of recital that it contains all the evidence submitted or introduced on the trial of the cause. In the absence of such recital in the case-made, this court will not review any question depending upon the facts for its determination. Wagner v. Sattley Mfg. Co., 23 Okl 52, 99 P. 643. Such omission in the case-made cannot be supplied by the certificate of the trial judge. Martin et al. v. Gassert, 17 Okl. 177, 87 P. 586.
The second contention is that the attachment was issued without authority of law. Section 3343, Wilson's Rev. & Ann. St. 1903, provides: Section 3346, Id., provided: "When any person who shall be liable to pay rent (whether the same be due or not, if it be due within one year thereafter, and whether the same be payable in money or other things,) intends to remove, or is removing or has, within thirty days, removed his property or the crops, or any part thereof, from the leased premises, the person to whom the rent is owing may commence an action in the court having jurisdiction; and upon making an affidavit stating the amount of rent for which such person is liable, and one or more of the above facts, and executing an undertaking as in other cases, an attachment shall issue in the same manner and with the like effect as is provided by law in other actions."
It is under the foregoing section that the attachment in this action was issued. Plaintiff in error contends that said section authorizes...
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