Allen v. Smith

Supreme Court of Oklahoma

Allen v. Smith

1918 OK 451, 174 P. 280, 70 Okla. 292, 1918 Okla. LEXIS 822

CourtSupreme Court of Oklahoma

DecidedJuly 30, 1918

Docket9079

StatusPublished

Cited by2 cases

This text of 1918 OK 451 (Allen v. Smith) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Allen v. Smith, 1918 OK 451, 174 P. 280, 70 Okla. 292, 1918 Okla. LEXIS 822 (Okla. 1918).

Pincite

Opinion

Opinion by

PRYOR, C.

This is an action brought by J. T. Smith, defendant in error, against J. H. Bowen. J. L. Bowen, L. B. Bowen, and O. T. Allen, plaintiffa in error, for the conversion of 15 head of cattle. At the close of the plaintiff’s evidence, the defendants interposed a demurrer thereto, on the specific ground that the evidence did not show that any demand for the cattle had been made on defendant Allen before the institution of suit. This demurrer was overruled, and the ruling of the trial court on this demurrer is the only question before this court. The defendants the Bowen Bros, pleaded in their answer that they had purchased the cattle in controversy from defendant Allen, and asked that in the event plaintiff should prevail they have judgment against the defendant Allen for the amount plaintiff was adjudged entitled to. The evidence conclusively shows that Allen had sold the cattle to the Bowens before the commencement of this action. There was trial to a jury and judgment rendered for plaintiff, from which judgment the defendants appeal.

It is a well-recognized principle of law that demand in an action for wrongful conversion is not necessary, where the act of conversion had been accomplished before the commencement of action, and that demand would be a futile and useless act. Bank of Commerce v. Gaskill, 44 Okla. 728, 145 Pac. 1131; Bilby v. Jones, 39 Okla. 613, 136 Pac. 414.

As demand of Allen for the' possession of the cattle was not necessary, the trial court properly overruled the demurrer of the defendant challenging the sufficiency of the evidence on this ground. As the sufficiency of the evidence was not properly challenged on the other issues, it must be held that *293 the evidence is sufficient to sustain the verdict of the jury.

Therefore the judgment of the trial court should be affirmed.

By the Court: It is so ordered.

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Opinion by

PRYOR, C.

This is an action brought by J. T. Smith, defendant in error, against J. H. Bowen. J. L. Bowen, L. B. Bowen, and O. T. Allen, plaintiffa in error, for the conversion of 15 head of cattle. At the close of the plaintiff’s evidence, the defendants interposed a demurrer thereto, on the specific ground that the evidence did not show that any demand for the cattle had been made on defendant Allen before the institution of suit. This demurrer was overruled, and the ruling of the trial court on this demurrer is the only question before this court. The defendants the Bowen Bros, pleaded in their answer that they had purchased the cattle in controversy from defendant Allen, and asked that in the event plaintiff should prevail they have judgment against the defendant Allen for the amount plaintiff was adjudged entitled to. The evidence conclusively shows that Allen had sold the cattle to the Bowens before the commencement of this action. There was trial to a jury and judgment rendered for plaintiff, from which judgment the defendants appeal.

It is a well-recognized principle of law that demand in an action for wrongful conversion is not necessary, where the act of conversion had been accomplished before the commencement of action, and that demand would be a futile and useless act. Bank of Commerce v. Gaskill, 44 Okla. 728, 145 Pac. 1131; Bilby v. Jones, 39 Okla. 613, 136 Pac. 414.

As demand of Allen for the' possession of the cattle was not necessary, the trial court properly overruled the demurrer of the defendant challenging the sufficiency of the evidence on this ground. As the sufficiency of the evidence was not properly challenged on the other issues, it must be held that *293 the evidence is sufficient to sustain the verdict of the jury.

Therefore the judgment of the trial court should be affirmed.

By the Court: It is so ordered.

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Bluebook (online)

1918 OK 451, 174 P. 280, 70 Okla. 292, 1918 Okla. LEXIS 822, Counsel Stack Legal Research, https://law.counselstack.com/opinion/allen-v-smith-okla-1918.

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