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Arnold v. McLellan

Arnold v. McLellan, 1910 OK 305, 112 P. 1018
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Court
Supreme Court of Oklahoma · State Highest Courts
Decided
November 16, 1910
Docket
No. 618
Judges
Williams
Citations
112 P. 10181910 OK 30527 Okla. 5981910 Okla. LEXIS 265
Disposition
Affirmed.
Cited by 1
Syllabus
1. GARNISHMENT — Indian Territory Procedure. Under the laws in force in the Indian Territory at the time of the/ erection of the state, it was only in suits by attachment that writs of garnishment were authorized to be issued against a -defendant before! judgment. 2. SAMÉ. In such cases, not only an affidavit, but also a bond, was required, and the failure to make and file either would operate, on timely motion, to cause the writ of garnishment to 'be quashed' and the garnishee to be discharged. 3. APPEAL AND ERROR — Reaord—Evidence—Showing of Prejudice. An action in equity pending on the equity side of the docket at the time of the eretetion of the state was required to be transferred to the district .court of the' state where both law and equity were administered from the same docket, and the answer of the defendant having raised an issue of fact which, if decided in her favor, would conclude the plaintiff as to. all the equitable relief sought, thoug'h there had previously been error committed in denying such preliminary relief the plaintiff having refused to introduce evidence to meet the issue raised on the part of the defendant, and not having brought up as a part of the record the evidence introduced on the part of the defendant, it does not affirmatively appear that any prejudicial error was committed against plaintiff. ('Syllabus by the Court.)
Summary
Error from District Court, Pittsburg Countyj Preslie B. Cole, Judge. Action between Jones N. Arnold and Ada McLellan. From a judgment for the latter, the former brings error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Williams

WILLIAMS, J.

Under section 339 (sec. 317, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899, it is settled that only in suits by attachment may a writ of garnishment be issued before judgment against the defendant.

Leingardt v. Deitz, 30 Ark. 224 ;

Littlejohn v. Lewis, 32 Ark. 423 . Conseequently not only the'affidavit, but also the bond, was essential. Section 340 (sec. 318, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899; section 332 (sec. 310, Mansf, Dig. Ark. 1884), Ind. Ter. St. 1899; section 334 (sec. 312, Mansf. Dig. Ark. 1884), Ind. Ter. St. 1899.

The failure to make such affidavit and bond and file the same is fatal on timely objection.

Fletcher v. Mankin, 37 Ark. 206 .

On the erection of the state, said cause was transferred to the state district court, where both equity and law were administered from the same docket. Plaintiff having refused to introduce evidence to support or meet the issues, and the evidence on the part of the defendant not being brought up as a part of the record, we cannot say .that any error was committed to the prejudice of plaintiff in error. For if fraud was committed by plaintiff in error in procuring the execution of the contract, no relief in equity could have been afforded him.

Neither has any appearance been made in this court on the *600 part of the defendant in error, nor any briefs filed. Whilst we Lave carefully searched the record, yet if the judgment here were adverse to defendant in error, having made such default, she would be entitled to no consideration on a petition for rehearing if the contention therein was as to what questions were presented by the record.

The judgment of the lower court is affirmed.

All the Justices concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

Cited by 1 case

View all citing references →
1911: 119112026peak 1911 · 1

Relies on it most ⓘ

  1. Turner v. Mills1911 OK 483, 120 P. 1092

Most recent

  1. Turner v. Mills1911 OK 483, 120 P. 1092

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 3

DepthCaseCited by
Fletcher v. Menken, 37 Ark. 206 (1881) 8
Leingardt v. Deitz, 30 Ark. 224 (1875) 2
Littlejohn v. Lewis, 32 Ark. 423 (1877) 2

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