City of Guthrie v. T. W. Harvey Lumber Co.

Supreme Court of Oklahoma

City of Guthrie v. T. W. Harvey Lumber Co.

50 P. 84, 5 Okla. 774

CourtSupreme Court of Oklahoma

DecidedJuly 30, 1897

StatusPublished

Cited by9 cases

This text of 50 P. 84 (City of Guthrie v. T. W. Harvey Lumber Co.) 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

City of Guthrie v. T. W. Harvey Lumber Co., 50 P. 84, 5 Okla. 774 (Okla. 1897).

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Opinion

The opinion of the court was delivered by

McAtee, J.:

Error is assigned here .that the petition of the plaintiff in the court below fails to state facts sufficient to constitute a cause of action and (2) in sustaining the plaintiff’s demurrer to the answer of the defendant, and (3) in rendering judgment in favor of the plaintiff without the introduction of any testimony in support of the plaintiff’s petition.

The general denial of the answer controverted every proposition in the petition, and as to that part of the *778 answer tlie plaintiff’s demurrer should have been overruled. The case is one for damages for the conversion of property.

The Statutes of Oklahoma, 1893, § 4006, provides that:

“Allegations of value or amount of damages shall not be considered as true by failure to controvert them.”

And in § 4292, that:

“If the assessment of damages be necessary to enable the court'to pronounce judgment, upon a failure to answer, or under the decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof or assess the damages.”

And the court therefore erred in entering judgment for the plaintiff without proof of damages and the averment of value being controverted by the general denial. (Darrough v. Lightfoot, 15 Mo. 187).

The averments of the petition were by the demurrer of the defendant admitted, the pleading having been sufficient to cover a state of facts apparently sufficient to entitle the plaintiff to a recovery, and upon which the recovery was sought and since the judgment must be reversed, the case will be remanded for a new trial with the direction to take evidence in support of the allegations of the petition. (Hale on Damages, 227-228; C. & I. R. R. Co. v. Baker, 73 Ill. 316; Crogan v. Schiele, 1 Atl. 889; Thompson v. Haislet, 14 Ark. 220; 3d Sedgwick on Damages, § 1275).

The judgment of the court below will be reversed.

Dale, C. J., having presided in the court below, not sitting; all the other Justices concurring.

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The opinion of the court was delivered by

McAtee, J.:

Error is assigned here .that the petition of the plaintiff in the court below fails to state facts sufficient to constitute a cause of action and (2) in sustaining the plaintiff’s demurrer to the answer of the defendant, and (3) in rendering judgment in favor of the plaintiff without the introduction of any testimony in support of the plaintiff’s petition.

The general denial of the answer controverted every proposition in the petition, and as to that part of the *778 answer tlie plaintiff’s demurrer should have been overruled. The case is one for damages for the conversion of property.

The Statutes of Oklahoma, 1893, § 4006, provides that:

“Allegations of value or amount of damages shall not be considered as true by failure to controvert them.”

And in § 4292, that:

“If the assessment of damages be necessary to enable the court'to pronounce judgment, upon a failure to answer, or under the decision of an issue of law, the court may, with the assent of the party not in default, take the account, hear the proof or assess the damages.”

And the court therefore erred in entering judgment for the plaintiff without proof of damages and the averment of value being controverted by the general denial. (Darrough v. Lightfoot, 15 Mo. 187).

The averments of the petition were by the demurrer of the defendant admitted, the pleading having been sufficient to cover a state of facts apparently sufficient to entitle the plaintiff to a recovery, and upon which the recovery was sought and since the judgment must be reversed, the case will be remanded for a new trial with the direction to take evidence in support of the allegations of the petition. (Hale on Damages, 227-228; C. & I. R. R. Co. v. Baker, 73 Ill. 316; Crogan v. Schiele, 1 Atl. 889; Thompson v. Haislet, 14 Ark. 220; 3d Sedgwick on Damages, § 1275).

The judgment of the court below will be reversed.

Dale, C. J., having presided in the court below, not sitting; all the other Justices concurring.

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50 P. 84, 5 Okla. 774, Counsel Stack Legal Research, https://law.counselstack.com/opinion/city-of-guthrie-v-t-w-harvey-lumber-co-okla-1897.

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