Clark v. Dunn

Supreme Court of Oklahoma

Clark v. Dunn

1924 OK 579, 227 P. 139, 100 Okla. 91, 1924 Okla. LEXIS 927

CourtSupreme Court of Oklahoma

DecidedMay 27, 1924

Docket13384

StatusPublished

This text of 1924 OK 579 (Clark v. Dunn) 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

Clark v. Dunn, 1924 OK 579, 227 P. 139, 100 Okla. 91, 1924 Okla. LEXIS 927 (Okla. 1924).

Pincite

Opinion

Opinion by

MAXEY, C.

We have made an earnest endeavor to try to dispose of this case without having to send it back for more litigation, but the more we dig into the record, the more we are convinced that the plaintiff’s petition, does not stq^e a cause of action. The petition is an attempt to sue on a replevin bond given by the defendant, Clark, to replevy the kaffir corn that he bought from the tenants, Smith brothers, and failed to keep the money until the plaintiff, Dunn, could settle with his tenants. Dunn, .as soon as he found out that Clark had paid the money over to the tenants, sued out a landlord’s attachment, and had same levied on the kaffir, corn that Clark nad bought from the Smith brothers. He had taken possession of this corn under his landlord’s attachment and the case was tried and Dunn obtained a judgment for $100, the balance due him from the tenants for rent, and got an .order to sell the attached property. Before .he could sell, Clark commenced a replevin suit and took the corn *92 from the constable that was holding it under the landlord’s attachment; and, on the trial of the case, Clark got judgment for the corn and costs. Dunn appealed from this judgment to the district court and on Dunn’s motion the case was dismissed because the justice of the peace had no jurisdiction ; and this appears to be, as near as we can figure it out, a suit on that replevin bond. It does not require the citation of authorities to show that Dunn could not recover on that replevin bond. He had no judgment in his favor upon which to base a suit on that bond. The rents due him had all been settled, as between him and his tenants; and his landlord’s lien had been extinguished; the barley and oats were threshed, and the number of bushels of each ascertained and Dunn sold his share of the barley and the oats to his tenants and they took possession of them and sold them. There was an item of $20 for corn that he sold them from a previous crop and $15 for a drill. (Neither of these two items could be classed as rent, and he would have no lien on the crops for these two items. So far as the kaflir corn is concerned, he and his tenants divided that by counting the rows, the tenants taking one-half of the number of rows and he the other one-half. The tenants then sold Clark, the defendant, their one-half of the kaffir corn and Clark agreed to hold the money until Dunn could have a settlement with his tenants on the open account between them, but Clark failed to carry out that promise and paid the money over to the tenants, but that did not restore the lien. When the tenants and Dunn divided the kaffir corn, Dunn took his half and he had no landlord’s lien on the kaffir corn because that had been settled between him and his tenants. So under the facts in the case, he had no landlord’s lien on any part of the crop. He had extinguished his landlord’sHien by receiving the rent. It is true the tenants had not yet paid him for his part of the oats and barley, but he had permitted them to take possession of them and sell them, and they were only, liable to him for money had and received, and so far as the kaffir corn was concerned, he had received his rent and permitted them to sell it to Clark. We cannot see any way, under the facts in this case, that plaintiff can recover in this action. His only action, if any, against the defendant Clark would be an action against him for the value of the kaffir corn or the money that he received for the kaffir corn, which Clark testified was $75. He simply had an action against Clark for money had and received but had no landlord’s lien against anybody. We have before shown that he cannot recover on the replevin bond, because he had no judgment in his favor to base a suit on replevin bond. After a careful consideration of the case, we are of the opinion that the court should have sustained the defendant's demurrer to plaintiff’s evidence at the close of plaintiff’s case in chief, because giving his evidence the most favorable consideration it does not sustain a cause of action of the kind that plaintiff has brought. We are, therefore, of the opinion that the case should be reversed and the cause remanded, with directions to the trial court to set aside the judgment rendered and dismiss the action without prejudice to the plaintiff bringing the proper action, if he desires to do so. The judgment is, therefore, reversed.

By the Court: It is so ordered.

Free access — add to your briefcase to read the full text and ask questions with AI

Opinion by

MAXEY, C.

We have made an earnest endeavor to try to dispose of this case without having to send it back for more litigation, but the more we dig into the record, the more we are convinced that the plaintiff’s petition, does not stq^e a cause of action. The petition is an attempt to sue on a replevin bond given by the defendant, Clark, to replevy the kaffir corn that he bought from the tenants, Smith brothers, and failed to keep the money until the plaintiff, Dunn, could settle with his tenants. Dunn, .as soon as he found out that Clark had paid the money over to the tenants, sued out a landlord’s attachment, and had same levied on the kaffir, corn that Clark nad bought from the Smith brothers. He had taken possession of this corn under his landlord’s attachment and the case was tried and Dunn obtained a judgment for $100, the balance due him from the tenants for rent, and got an .order to sell the attached property. Before .he could sell, Clark commenced a replevin suit and took the corn *92 from the constable that was holding it under the landlord’s attachment; and, on the trial of the case, Clark got judgment for the corn and costs. Dunn appealed from this judgment to the district court and on Dunn’s motion the case was dismissed because the justice of the peace had no jurisdiction ; and this appears to be, as near as we can figure it out, a suit on that replevin bond. It does not require the citation of authorities to show that Dunn could not recover on that replevin bond. He had no judgment in his favor upon which to base a suit on that bond. The rents due him had all been settled, as between him and his tenants; and his landlord’s lien had been extinguished; the barley and oats were threshed, and the number of bushels of each ascertained and Dunn sold his share of the barley and the oats to his tenants and they took possession of them and sold them. There was an item of $20 for corn that he sold them from a previous crop and $15 for a drill. (Neither of these two items could be classed as rent, and he would have no lien on the crops for these two items. So far as the kaflir corn is concerned, he and his tenants divided that by counting the rows, the tenants taking one-half of the number of rows and he the other one-half. The tenants then sold Clark, the defendant, their one-half of the kaffir corn and Clark agreed to hold the money until Dunn could have a settlement with his tenants on the open account between them, but Clark failed to carry out that promise and paid the money over to the tenants, but that did not restore the lien. When the tenants and Dunn divided the kaffir corn, Dunn took his half and he had no landlord’s lien on the kaffir corn because that had been settled between him and his tenants. So under the facts in the case, he had no landlord’s lien on any part of the crop. He had extinguished his landlord’sHien by receiving the rent. It is true the tenants had not yet paid him for his part of the oats and barley, but he had permitted them to take possession of them and sell them, and they were only, liable to him for money had and received, and so far as the kaffir corn was concerned, he had received his rent and permitted them to sell it to Clark. We cannot see any way, under the facts in this case, that plaintiff can recover in this action. His only action, if any, against the defendant Clark would be an action against him for the value of the kaffir corn or the money that he received for the kaffir corn, which Clark testified was $75. He simply had an action against Clark for money had and received but had no landlord’s lien against anybody. We have before shown that he cannot recover on the replevin bond, because he had no judgment in his favor to base a suit on replevin bond. After a careful consideration of the case, we are of the opinion that the court should have sustained the defendant's demurrer to plaintiff’s evidence at the close of plaintiff’s case in chief, because giving his evidence the most favorable consideration it does not sustain a cause of action of the kind that plaintiff has brought. We are, therefore, of the opinion that the case should be reversed and the cause remanded, with directions to the trial court to set aside the judgment rendered and dismiss the action without prejudice to the plaintiff bringing the proper action, if he desires to do so. The judgment is, therefore, reversed.

By the Court: It is so ordered.

Cite This Page — Counsel Stack

Bluebook (online)

1924 OK 579, 227 P. 139, 100 Okla. 91, 1924 Okla. LEXIS 927, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-dunn-okla-1924.