Lewis v. Boice

Supreme Court of Oklahoma

Lewis v. Boice

1950 OK 299, 236 P.2d 258, 205 Okla. 189, 1950 Okla. LEXIS 595

CourtSupreme Court of Oklahoma

DecidedNovember 28, 1950

Docket33871

StatusPublished

Cited by9 cases

This text of 1950 OK 299 (Lewis v. Boice) 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

Lewis v. Boice, 1950 OK 299, 236 P.2d 258, 205 Okla. 189, 1950 Okla. LEXIS 595 (Okla. 1950).

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Opinions

HALLEY, J.

The parties will be referred to by name or according to the positions they occupied in the trial court.

Plaintiff filed suit to recover $2,375 for work done in the drilling of an oil well for defendant by his crew and machine between May 18 and June 2, 1947, at $160 for each 24 hours. The defendant filed a cross-petition. The case was tried to a jury and a verdict was rendered for the plaintiff for $2,373.32. The defendant appealed.

The defendant urges two propositions for reversal. The first is that the intangible tax was not paid at the time that judgment was taken; and the second is that the ver diet, was not supported by the evidence.

As to Proposition One, it appears that this case was filed on September 17, 1947. At that time plaintiffs claim was not subject to be listed for intangible tax and the earliest time for listing would be January 1, 1948. We held in Rutter v. Heatley, 198 Okla. 591, 180 P. 2d 822, that the taxable status of a claim is determined as of the time the action was commenced, and that where the work was done on September 7, 1943, suit filed ten days later, and judgment appealed from entered December 11, 1945, the plaintiff need not allege and prove payment of intangible tax nor excuse nonpayment as provided in 68 O.S. 1941 §1515. There is no substantial difference between that case and the case at bar, where at the time suit was brought no intangible tax was due. The defendant’s contention on this point must be denied.

As to the second proposition, that the verdict was contrary to and not sustained by the evidence, the defendant is without grounds for reversal, because he did not move for a directed verdict at the close of all the evidence. Bolon v. Smith, 170 Okla. 407, 40 P. 2d 677; Marland Refining Co. v. Harrel, 167 Okla. 548, 31 P. 2d 121; Self v. Vickery, 201 Okla. 492, 207 P. 2d 287.

The judgment of the trial court is affirmed.

The plaintiff asks for judgment on the supersedeas bond filed in the trial court, a copy of which is incorporated in the case-made.

[190]*190It is therefore ordered, adjudged and decreed by this court that the plaintiff, B. E. Boice, have and recover from the defendant, J. D. Lewis, and from Hartford Accident & Indemnity Company, the surety on his supersedeas bond, the sum of $2,373.32, with interest thereon at the rate of 6 per cent per annum from April 19, 1948, until paid, together with an attorney’s fee of $300, and all costs.

DAVISON, C.J., ARNOLD, V.C.J., and GIBSON, LUTTRELL, JOHNSON, and O’NEAL, JJ., concur. WELCH and CORN, JJ., dissent.

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HALLEY, J.

The parties will be referred to by name or according to the positions they occupied in the trial court.

Plaintiff filed suit to recover $2,375 for work done in the drilling of an oil well for defendant by his crew and machine between May 18 and June 2, 1947, at $160 for each 24 hours. The defendant filed a cross-petition. The case was tried to a jury and a verdict was rendered for the plaintiff for $2,373.32. The defendant appealed.

The defendant urges two propositions for reversal. The first is that the intangible tax was not paid at the time that judgment was taken; and the second is that the ver diet, was not supported by the evidence.

As to Proposition One, it appears that this case was filed on September 17, 1947. At that time plaintiffs claim was not subject to be listed for intangible tax and the earliest time for listing would be January 1, 1948. We held in Rutter v. Heatley, 198 Okla. 591, 180 P. 2d 822, that the taxable status of a claim is determined as of the time the action was commenced, and that where the work was done on September 7, 1943, suit filed ten days later, and judgment appealed from entered December 11, 1945, the plaintiff need not allege and prove payment of intangible tax nor excuse nonpayment as provided in 68 O.S. 1941 §1515. There is no substantial difference between that case and the case at bar, where at the time suit was brought no intangible tax was due. The defendant’s contention on this point must be denied.

As to the second proposition, that the verdict was contrary to and not sustained by the evidence, the defendant is without grounds for reversal, because he did not move for a directed verdict at the close of all the evidence. Bolon v. Smith, 170 Okla. 407, 40 P. 2d 677; Marland Refining Co. v. Harrel, 167 Okla. 548, 31 P. 2d 121; Self v. Vickery, 201 Okla. 492, 207 P. 2d 287.

The judgment of the trial court is affirmed.

The plaintiff asks for judgment on the supersedeas bond filed in the trial court, a copy of which is incorporated in the case-made.

[190]*190It is therefore ordered, adjudged and decreed by this court that the plaintiff, B. E. Boice, have and recover from the defendant, J. D. Lewis, and from Hartford Accident & Indemnity Company, the surety on his supersedeas bond, the sum of $2,373.32, with interest thereon at the rate of 6 per cent per annum from April 19, 1948, until paid, together with an attorney’s fee of $300, and all costs.

DAVISON, C.J., ARNOLD, V.C.J., and GIBSON, LUTTRELL, JOHNSON, and O’NEAL, JJ., concur. WELCH and CORN, JJ., dissent.

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Bluebook (online)

1950 OK 299, 236 P.2d 258, 205 Okla. 189, 1950 Okla. LEXIS 595, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lewis-v-boice-okla-1950.

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