Worley v. Mundell

• Decision Date: 26 January 1926
• Docket Number: Case Number: 16201
• Citation: 1926 OK 79,123 Okla. 237,253 P. 42
• Parties: WORLEY, Sheriff, et al. v. MUNDELL.
• Court: Oklahoma Supreme Court

1926 OK 79

253 P. 42

123 Okla. 237

WORLEY, Sheriff, et al. v. MUNDELL.

Case Number: 16201

Supreme Court of Oklahoma

Decided: January 26, 1926

Syllabus

¶0 1. Equity--Adequate Remedy at Law--Loss of Remedy by Laches.

The powers of a court of equity cannot be invoked where it is clear from the facts pleaded in the petition that the plaintiff had a plain and adequate remedy at law, and by his own laches or neglect failed to avail himself thereof, and no valid cause or excuse is shown for such failure or neglect.

2. Injunction--Remedy Against Illegal Attachment.

The remedy to discharge property from illegal attachment is provided by section 229, C. S. 1921, and any person who knowingly neglects this remedy until after judgment and order of sale of the attached property is not entitled to injunctive relief against the order of sale.

Commissioners' Opinion, Division No. 3.

Error from District Court, Garvin County; A. C. Barrett, Judge.

Action by Ida Mundell against C. F. Worley, sheriff of Garvin County, Okla., and G. T. Shook, undersherik of Garvin SCounty, Okla., and the Colony Mercantile Company, to enjoin the sale of attached property. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.

Bowling & Farmer, for plaintiffs in error.

Blanton, Osborn & Curtis, for defendant in error.

THREADGILL, C.

¶1 Plaintiffs in error were defendants and defendant in error was plaintiff in the trial court, and they will be referred to here as they appeared there. C. F. Worley was sheriff and G. T. Shook was undersheriff of Garvin county. They had levied an execution or order of sale, issued out of the district court of Caddo county, upon an oil and gas lease on the S.E. 1/4 of sec. 20 T 1. N., R. 3 W. Garvin county, which appears of record in the name of J. E. Trimmer, and were advertising the same for sale as property attached at the order of the Colony Mercantile Company, in an action in the district court of Caddo county, against said F. J. Trimmer, and in which the plaintiff obtained judgment against him for damages for conversion, and the judgment sustained the attachment. Ida Mundell, plaintiff in this action, was not made a party in that action, and, although she knew that the attachment was levied, she made no appearance and took no steps to interplead against the attachment. In bringing this suit she contended that she was the owner of the land, and on December 21, 1921, she and her husband, J.

¶2 J. Mundell, executed an oil and gas lease on the land to J. F. Trimmer, who was her brother, without consideration, for the sole and only purpose of authorizing him as her agent to sell as oil and gas lease on the land in her absence; and while she was gone to San Antonio, Tex., for her health. She pleaded in her petition that said J. F. Trimmer was her agent and had no interest in the oil and gas lease only as her agent, and, acting as such, he had executed an oil and gas lease on a part of the land to A. L. Beach without any consideration, and said party as her agent had sold and transferred oil and gas leases to other persons for valuable considerations, and warranted the title, and she is liable on the warranties, and brings this action to enjoin the sale and to clear the title and protect her warranties to the lessees for value. She asks that she be adjudged to be the owner of the oil and gas lease held in the name of J. F. Trimmer, and that the defendants be restrained from selling or offering to sell said oil and gas lease; that the title in the lands and premises be quieted in her, and that the levy of the attachment and special execution for sale of the oil and gas lease upon the lands be removed as clouds upon her title. The defendants, the sheriff and undersheriff, demurred to the petition, which was overruled and they made no further appearance in the case except as witnesses.

¶3 The Colony Mercantile Company filed an answer, in which it stated that C. F. Worley, the sheriff, and G. T. Shook, the undersheriff, of Garvin county, were defendants by reason of the execution placed in their hands for service as officers of the law, and that it should be substituted as defendant in their stead, being the moving party in having the execution issued and placed in their hands for service. The substitution was made. It then pleads the action filed in the district court of Caddo county in February, 1922, and that the attachment issued in said case was served in Garvin county against the property of J. F. or Fount Trimmer, the defendant in the action; it pleads that the attachment was levied on the oil and gas lease in controversy, and that on February 5, 1924, it obtained a judgment against Fount Trimmer in said action, and the judgment sustained the attachment levied on the said property and the same was ordered sold, and that the sheriff and undersheriff were proceeding under the order of sale to sell the property according to law. It further states that the plaintiff, Ida Mundell, is not the owner of said oil and gas lease. It denies that she made the said lease to said J. F. Trimmer to constitute him her agent as alleged in her petition. It further pleads that she is estopped to maintain her action for the reason she had known of the pendency of the suit in the district court of Caddo county and of the attachment of said oil and gas lease in said case, for more than two years before commencing her action; that she had due notice of said suit and of the levy of said writ of attachment and failed and neglected to appear in the district court of Caddo county to defend in said cause. It pleads further that since the attachment was levied on said oil and gas lease, J. F. Trimmer had endeavored to convey said oil and gas lease to other persons for the purpose of avoiding his debts and defeating defendant's claim; that he had transferred an oil and gas lease on ten acres of the land to one A. L. Beach, and that the said assignment was without consideration and void as to the defendant; that said A. L. Beach had transferred, by assignment, his lease to the Amerada Petroleum Company, which said conveyance is void as to this defendant. It states further that A. L. Beach assigned an oil and gas lease to one Frank O. Ringer, which is void because made after the attachment. It states further that the "Amerada Petroleum Company paid a consideration for its lease in a sum of as much, at least, as the sum of $ 1,500," and that said money is being held in escrow pending the termination of the defendant's attachment and the result of this action. Thereupon it prays that the Amerada Petroleum Company be made a party defendant in the action, and that A. L. Beach and Frank O. Ringer be made parties defendants, and that they be required to show what interests they have in the property in controversy. A temporary injunction having been issued against the sheriff and undersheriff of Garvin county, defendant asks that said order be vacated. It further asks that title to the oil and gas lease be quieted against the conveyances after the attachment was levied; that the sheriff may proceed with the sale of the property under the orders of the court of Caddo county. The court made an order to strike from the answer of defendant Colony Mercantile Corporation, the application to make the Amerada Petroleum Company, A. L. Beach, and Frank O. Ringer, parties defendants, and defendant excepted. Thereupon the plaintiff, Ida Mundell, filed her reply to the answer consisting of a general denial. The cause was tried to the court on September 17, 1924, and resulted in a judgment in favor of plaintiff, and the defendant Colony Mercantile Corporation brings the case here by petition in error and case-made attached for review.

¶4 Defendants urge two propositions for reversal: "(1) Whether or not the said Ida Mundell was entitled to injunctive relief and did her petition therefore state a cause of action? (2) Was she estopped from setting up her claim of ownership of the oil and gas on said land by reason of her laches?"

¶5 Under the facts in the case, the primary question involved is whether or not the plaintiff was entitled to injunctive relief against the order of sale under the judgment sustaining the attachment. It will be observed, according to the facts stated in plaintiff's petition, that she executed the oil and gas lease to J. F. Trimmer, who was her brother, for the purpose of authorizing him to act as her agent in selling the lease to some other person while she was in Texas for her health, and she does not ask for any relief against him, nor does she ask that the legal title, so transferred to others...