Vaughn Lumber Co. v. Mo. Mining & Lumber Co.
| Decision Date | 27 July 1895 |
| Citation | 3 Okla. 174,1895 OK 54,41 P. 81 |
| Parties | THE VAUGHN LUMBER COMPANY v. THE MISSOURI MINING AND LUMBER COMPANY. |
| Court | Oklahoma Supreme Court |
Error From the District Court of Grant County.
Action in replevin brought by the Vaughn Lumber company against the Missouri Mining and Lumber company, to recover possession of a lot of shingles shipped by plaintiff to a party in Grant county, and seized by defendant upon an execution. Plaintiff brings up this case.
¶0 WAIVER OF ERROR. Failure to except to the ruling of a motion for a new trial is a waiver of error as to such ruling and all alleged errors of law occurring at the trial for which a new trial might be granted. ( The City of Atchison v. Byrnes, 22 Kan. 65)
Burwell & Burwell, Asher & Asher and G. C. Clegg, for plaintiff in error.
Charles E. Bailey, Buckner and Bird & Lake, for defenddant in error.
¶1 November 20, 1893, the Vaughn Lumber company instituted an action in replevin in the probate court of Grant county against one R. H. Hager, to recover a certain lot of shingles which had prior thereto been shipped by the Vaughn Lumber company to one J. J. Ellis, at Pond Creek. The goods were seized by Hager as sheriff to satisfy an execution against Ellis, which execution had been obtained by the Missouri Mining and Lumber company. Hagar, by answer, showed his lack of interest in the property, except as an officer holding the same by virtue of his execution, whereupon the Missouri Mining and Lumber company obtained leave to be substituted for Hagar, as defendant in the action brought by the plaintiff below. The Missouri Mining and Lumber company answered by a general denial. The case was tried in the probate court and judgment rendered for the defendant therein, and from there appealed to the district court of the county, and on April 14, 1894, tried in the district court upon an agreed statement of facts, after which submission of the agreed statement of facts, the defendant demurred, which demurrer was by the court sustained, and a judgment was rendered in the action in favor of the defendant, adjudging that the defendant was entitled to the possession of the property, and that the interest of the defendant in the property was the sum of money, to-wit: $ 105, which the defendant had advanced to the railway company as freight charges at the time the execution was by the sheriff levied upon the property, as the property of Ellis. After the rendition of the judgment, the plaintiff below filed his motion for a new trial, upon grounds stated as follows, to-wit:
¶2 The ...
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