Dustin v. Hardy

Supreme Court of Oklahoma

Dustin v. Hardy

1916 OK 292, 155 P. 1179, 56 Okla. 645, 1916 Okla. LEXIS 758

CourtSupreme Court of Oklahoma

DecidedMarch 7, 1916

Docket6133

StatusPublished

This text of 1916 OK 292 (Dustin v. Hardy) 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

Dustin v. Hardy, 1916 OK 292, 155 P. 1179, 56 Okla. 645, 1916 Okla. LEXIS 758 (Okla. 1916).

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Opinion

Opinion by

MATHEWS, C.'

This was an action commenced an action against. one McKinney and caused an attachment to be issued and levied upon certain property. Immediately thereafter his wife, Rosa McKinney, set up a claim to the attached property and instituted a replevin action therefor against the said Miller and plaintiff Jim Dustin, constable, and defendant, R. Hardy, signed the replevin bond as surety, and the attached property went into the possession of the said Rosa McKinney. On the 14th day of November, 1912, judgment was rendered by default in favor of Miller in the attachment action, and in favor of the defendants in the replevin action. This action was instituted upon said replevin bond against R. Hardy, the surety thereon.

*646 The defendant answered this action by alleging that the property attached in the original suit had been taken possession of under a writ of attachment that was void, and in order to avoid the effect of quashing said attachment it had been agreed that no judgment wtould be taken that would bind R. Hardy, the surety on the replevin bond. Upon conflicting testimony the trial court decided in favor of defendant, and the plaintiffs prosecute this appeal.

It appears from the testimony that, when the two cases involving the attached and replevied property were called for trial, attorneys representing the several parties were present, and it was brought to the attention of plaintiffs’ attorneys that the attachment writ had been served by one Fount Dustin, who was not an officer, and had not been specially appointed to execute the attachment writ, and it was there agreed that the attachment was void, but as to the further agreement the evidence of the attorneys on each side conflicts.

It could serve no good purpose to review the evidence introduced at the trial. We have carefully considered the same, and it amply sustains the finding of the trial judge, and it has always been the settled policy of this court not to disturb the findings of the trial judge where the evidence is conflicting.

Attorneys for plaintiffs in error have urged several technical grounds against the decision of the trial court. Questions like the one at -bar, involving the keeping of agreements with opposing counsel, should be met squarely upon their merit, and we are not disposed to go into superfine legal technicalities to enable attorneys to avoid such agreements.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

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Opinion by

MATHEWS, C.'

This was an action commenced an action against. one McKinney and caused an attachment to be issued and levied upon certain property. Immediately thereafter his wife, Rosa McKinney, set up a claim to the attached property and instituted a replevin action therefor against the said Miller and plaintiff Jim Dustin, constable, and defendant, R. Hardy, signed the replevin bond as surety, and the attached property went into the possession of the said Rosa McKinney. On the 14th day of November, 1912, judgment was rendered by default in favor of Miller in the attachment action, and in favor of the defendants in the replevin action. This action was instituted upon said replevin bond against R. Hardy, the surety thereon.

*646 The defendant answered this action by alleging that the property attached in the original suit had been taken possession of under a writ of attachment that was void, and in order to avoid the effect of quashing said attachment it had been agreed that no judgment wtould be taken that would bind R. Hardy, the surety on the replevin bond. Upon conflicting testimony the trial court decided in favor of defendant, and the plaintiffs prosecute this appeal.

It appears from the testimony that, when the two cases involving the attached and replevied property were called for trial, attorneys representing the several parties were present, and it was brought to the attention of plaintiffs’ attorneys that the attachment writ had been served by one Fount Dustin, who was not an officer, and had not been specially appointed to execute the attachment writ, and it was there agreed that the attachment was void, but as to the further agreement the evidence of the attorneys on each side conflicts.

It could serve no good purpose to review the evidence introduced at the trial. We have carefully considered the same, and it amply sustains the finding of the trial judge, and it has always been the settled policy of this court not to disturb the findings of the trial judge where the evidence is conflicting.

Attorneys for plaintiffs in error have urged several technical grounds against the decision of the trial court. Questions like the one at -bar, involving the keeping of agreements with opposing counsel, should be met squarely upon their merit, and we are not disposed to go into superfine legal technicalities to enable attorneys to avoid such agreements.

We recommend that the judgment be affirmed.

By the Court: It is so ordered.

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Bluebook (online)

1916 OK 292, 155 P. 1179, 56 Okla. 645, 1916 Okla. LEXIS 758, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dustin-v-hardy-okla-1916.