Worsham v. Dillard
| Decision Date | 25 March 1941 |
| Docket Number | Case Number: 29761 |
| Citation | 114 P.2d 175,189 Okla. 118,1941 OK 103 |
| Parties | WORSHAM et al. v. DILLARD |
| Court | Oklahoma Supreme Court |
¶0 1. PLEADING--Judgment on pleadings proper where no issues of fact raised.
Where the pleadings raise no issues of fact but only issues of law, judgment upon the pleadings is proper.
2. APPEAL AND ERROR--Liability on supersedeas bond not defeated by error in date of judgment as recited in bond.
Where a bond has been given to supersede a judgment and accomplishes the purpose for which it is given, the fact that the date of judgment has been erroneously stated in said bond will not relieve the obligors of liability in a suit brought to enforce the penalty of such bond.
3. PLEADING--Admissions in answer justifying judgment on pleadings.
Where defendants in an action file an answer alleging that the plaintiff is only nominally such and is in reality trustee for another, they cannot, so long as such admission remains in the pleading, escape the force of the allegation so made.
Appeal from District Court, Carter County; Marvin Shilling, Judge.
Action on supersedeas bond by C. F. Dillard against H. O. Worsham et al. Motion of plaintiff for judgment on the pleadings was sustained, and defendants appeal. Affirmed.
R. A. Howard, of Ardmore, and N. E. Ticer, of Wilson, for plaintiffs in error.
H. A. Ledbetter and Sigler & Jackson, all of Ardmore, for defendant in error.
¶1 C. F. Dillard, hereinafter referred to as plaintiff, instituted this action against H. O. Worsham, Toss Ingram, and W. B. Scivally, hereinafter referred to as defendants, to enforce liability under a supersedeas bond.
¶2 In the petition plaintiff alleged, in substance, the rendition of a judgment on January 25, 1937, in his favor against H. O. Worsham for the sum of $396, with interest and costs, and that motion for new trial was heard and overruled on May 18, 1937, and notice of appeal then given, and that on June 9, 1937, the defendants had executed the bond upon which this action was predicated for the purpose of superseding the judgment which the plaintiff had. theretofore obtained and had erroneously recited in said bond that the judgment had been obtained on the date the motion for new trial had been overruled; that the bond actually accomplished the purpose for which it had been given by staying execution during the period within which an appeal could have been prosecuted; that no appeal had ever been completed, and that on December 16, 1937, the trial court entered its order finding that said judgment had become absolute and that execution issued on said judgment had been returned unsatisfied and demand made upon the defendants to satisfy such judgment pursuant to the terms of the bond which they had given, and that they had refused to make such payment. Copies of the judgment and bond were attached as exhibits to the petition. When motion to strike and demurrer filed by the defendants were overruled, they filed an answer where, in addition to a general denial, they alleged that the judgment had not been entered on January 25, 1937, as alleged by plaintiff, but on June 28, 1937, and that the judgment was in reality one for possession of real estate as well as money, and since the bond had not been given to supersede the entire judgment, that therefore it was ineffective for any purpose. Furthermore, the plaintiff was only nominally such and was in reality acting for one Ott Burnett, who was the owner of said judgment and all rights incident thereto and who was the only person who could maintain an action on the bond. Plaintiff then filed a reply which contained matters constituting a departure. Defendants then filed a supplemental answer wherein they pleaded as a complete defense a release and satisfaction of the judgment which had been executed by C. F. Dillard on June 30, 1939. Motion of plaintiff for judgment on the pleadings was sustained and judgment entered accordingly. The defendants have prosecuted this appeal and urge as error the action of the trial court in rendering judgment on the pleadings in favor of plaintiff and in not so rendering judgment in favor of the defendants and in holding that C. F. Dillard was merely a nominal plaintiff, and as such trustee for Ott Burnett.
¶3 In support of the contentions so made, the defendants cite a number of cases which are authority for the rule that a motion for judgment on the pleadings is in the nature of a demurrer, and that such motion searches the...
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