Clark v. Farmers' State Bank

Supreme Court of Oklahoma

Clark v. Farmers' State Bank

1915 OK 307, 149 P. 1189, 48 Okla. 592, 1915 Okla. LEXIS 673

CourtSupreme Court of Oklahoma

DecidedMay 11, 1915

Docket4119

StatusPublished

Cited by6 cases

This text of 1915 OK 307 (Clark v. Farmers' State Bank) 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. Farmers' State Bank, 1915 OK 307, 149 P. 1189, 48 Okla. 592, 1915 Okla. LEXIS 673 (Okla. 1915).

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Opinion

Opinion by

MATHEWS, C.

1. Defendant in error filed this action in the county court against the plaintiff in error for the conversion of certain personal property, and plaintiff in error complains for the first- time in this court that the petition was fatally defective in not containing the allegation “that plaintiff , was entitled to the possession of the property alleged to have been converted.” It is apparent that the petition contains all the necessary allegations for pleading a good cause of action for conversion, except it fails to state the plaintiff was entitled to the possession of the property converted.

*593 2. There can be no contention, over the proposition that a petition for the conversion of personal property should show that plaintiff was in actual possession of the property at the time of the conversion, or, if not in possession, that he was entitled to the immediate possession of the property. 38 Cyc. 2068; Paine et al. v. British Butte Mining Co., 41 Wash. 28, 108 Pac. 12; Kennett v. Peters et al., 54 Kan. 119, 37 Pac. 999, 45 Am. St. Rep. 274; Citizens’ Bank v. Tiger Tail Mill Co., 152 Mo. 145, 53 S. W. 902.

No demurrer was filed against the petition; this defect was not challenged by the objection to the introduction of testimony, and was not assigned as error in the motion for a new trial, and is raised for the first time in the petition in error filed in this court. The omission of the allegation complained of makes the petition merely defective, and in no sense can be said to be jurisdictional, and the plaintiff in error, in failing to urge the objection in the trial court, has waived it and cannot take advantage of it now.

There is no rule of this court better settled than that errors not raised in the trial court will not be considered on appeal, when they do not go to the jurisdiction of the court. Baker v. Marcum and Toomer, 22 Okla. 21, 97 Pac. 572; Healy v. Loofbourrow, 2 Okla. 458, 37 Pac. 823; Weaver v. Kuchler, 17 Okla. 189, 87 Pac. 600.

For the reasons stated, the judgment of the lower court will be affirmed.

By the Court: It is so ordered.

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Opinion by

MATHEWS, C.

1. Defendant in error filed this action in the county court against the plaintiff in error for the conversion of certain personal property, and plaintiff in error complains for the first- time in this court that the petition was fatally defective in not containing the allegation “that plaintiff , was entitled to the possession of the property alleged to have been converted.” It is apparent that the petition contains all the necessary allegations for pleading a good cause of action for conversion, except it fails to state the plaintiff was entitled to the possession of the property converted.

*593 2. There can be no contention, over the proposition that a petition for the conversion of personal property should show that plaintiff was in actual possession of the property at the time of the conversion, or, if not in possession, that he was entitled to the immediate possession of the property. 38 Cyc. 2068; Paine et al. v. British Butte Mining Co., 41 Wash. 28, 108 Pac. 12; Kennett v. Peters et al., 54 Kan. 119, 37 Pac. 999, 45 Am. St. Rep. 274; Citizens’ Bank v. Tiger Tail Mill Co., 152 Mo. 145, 53 S. W. 902.

No demurrer was filed against the petition; this defect was not challenged by the objection to the introduction of testimony, and was not assigned as error in the motion for a new trial, and is raised for the first time in the petition in error filed in this court. The omission of the allegation complained of makes the petition merely defective, and in no sense can be said to be jurisdictional, and the plaintiff in error, in failing to urge the objection in the trial court, has waived it and cannot take advantage of it now.

There is no rule of this court better settled than that errors not raised in the trial court will not be considered on appeal, when they do not go to the jurisdiction of the court. Baker v. Marcum and Toomer, 22 Okla. 21, 97 Pac. 572; Healy v. Loofbourrow, 2 Okla. 458, 37 Pac. 823; Weaver v. Kuchler, 17 Okla. 189, 87 Pac. 600.

For the reasons stated, the judgment of the lower court will be affirmed.

By the Court: It is so ordered.

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1915 OK 307, 149 P. 1189, 48 Okla. 592, 1915 Okla. LEXIS 673, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clark-v-farmers-state-bank-okla-1915.

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