168 P.2d 285 | Okla. | 1946
This is an action in replevin commenced by the First National Bank of Yukon, Okla., hereinafter called plaintiff, against John Lenox, sheriff of Okmulgee county, to recover possession of a 1941 Ford 1 1/2-ton truck with dump bed. The truck had been *53 levied upon by the sheriff under an attachment writ issued by Lee Burke, creditor of Robert Johnson. Lee Burke filed an answer and cross-petition. The cause was tried to a jury which returned a verdict for the plaintiff against Lee Burke and the Sheriff Lenox, and Burke alone, hereinafter called defendant, appeals.
The evidence discloses, without substantial conflict, that on the 28th day of August, 1943, Robert Johnson executed a chattel mortgage to the plaintiff to secure the payment of a promissory note for $742 executed and delivered to the plaintiff on the same date. This mortgage was filed in Oklahoma county on August 31, 1943. Defendant in his answer and cross-petition set up an attachment levied by the sheriff on November 5, 1943, in an action on a debt for merchandise sold and delivered by Lee Burke, the defendant, to Robert Johnson. W.M. French filed an answer and cross-petition setting up a chattel mortgage executed December 9, 1943, to secure a promissory note executed June 11, 1943. The cross-petition of W.M. French was dismissed upon his motion.
It is first argued that there is no competent evidence reasonably tending to support the verdict of the jury and the judgment of the court rendered thereon. 46 Ohio St. 1941 § 57[
He cites and relies upon Burbank Burbank et al. v. Bobbitt,
Defendant states that this court has never passed upon this identical question at bar. This may be technically true. In Continental Supply Co. v. Badgett,
Defendant also cites and relies upon Cowart v. Allen,
In this connection defendant asserts that by reason of 46 O. S. 1941 § 59, the chattel mortgage should have been filed in Okmulgee county because Johnson was operating as a common carrier. As stated above, there is no evidence that the truck in question was operated to haul freight. We find no evidence in the record to sustain the proposition that Johnson was operating as a common carrier so as to require the filing of the chattel mortgage in the case at bar in Okmulgee county in compliance with any provision of our statute.
It is next argued that the trial court erred in giving instructions 1, 3, and 4. No specific objection is made to instruction No. 1. It is not set out as required by the rules of this court. Instructions 3 and 4 are as follows:
"3. You are further instructed that the filing of a mortgage of personal property, operated as notice thereof to all subsequent purchasers and incumbrancers to so much of said property as is at the time located in the county or counties wherein such mortgage or authenticated copy thereof is filed: Provided, that when a mortgaged chattel is moved from one county to another in this state, any previous filing of the mortgage shall not operate as notice's against subsequent creditors, purchasers, mortgagees or incumbrancers for a longer period than one hundred and twenty days after such removal, but such mortgage must be refiled in the county to which the chattel is removed, and in which it is permanently located.
"4. As hereinbefore instructed, a mortgage of personal property is void as against creditors of the mortgagor (who in this case is Robert Johnson) unless the original, or a certified copy thereof be filed in the offices of the county clerk in each county wherein the property mortgaged, or any part thereof, is at such time situated.
"In this connection, you are instructed that the words, 'at such time situated,' as used herein, refer to the date of the execution of the mortage. A short stay of personal property during its transit through a place is not sufficient, but, in the ordinary sense, movables are situate in the place where they are used day after day; where they are stored, housed, or kept, when not in actual use, and where the business in which they are employed is done.
"You are therefore instructed that the burden of proof is upon the plaintiff to prove by a preponderance of the evidence that the truck involved herein was situated, as defined herein, in Oklahoma county, on the 28th day of August, 1943, and the dates when their respective mortgages were executed.
"You are further instructed that the burden is upon the defendant, Lee Burke, to prove by a preponderance of *55 the evidence in this case, that the truck belonging to the said Robert Johnson, was situated, as defined in these instructions on the 28th day of October, 1943, the date when the order of attachment was levied in Okmulgee county, Oklahoma."
Defendant objects that the instructions assume the property was situated in Oklahoma county and that the plaintiff properly filed the chattel mortgage therein. We do not believe the jury was misled by these instructions. Instruction No. 4 states that before the jury was warranted in finding that the chattel mortgage could be filed within 120 days in Okmulgee county, it must be first found from the evidence that the property was situated in Oklahoma county and the word "situated" is clearly defined. Defendant objects to the use of the phrase "burden of proof" in instruction No. 4. While the burden of proof never shifts from the plaintiff, it was the duty of the defendant to establish any defense after the plaintiff had offered its evidence of proper filing in Oklahoma county, and while not particularly approving the language used, we are of the opinion that the above instructions reasonably submitted to the jury the issues involved.
Finally the defendant argues that the trial court erred in allowing W.M. French to dismiss his answer and cross-petition. Under 12 O. S. 1941 § 683 any party has a right to dismiss except that such dismissal shall not affect the counterclaim of any party who has filed one after the pleadings have been made up. The defendant had no counter-claim against W.M. French. This contention is without substantial merit. The defendant shows no prejudice by reason of dismissal as to W.M. French and we find none.
The judgment of the trial court is affirmed.
GIBSON, C.J., HURST, V.C.J., and RILEY, OSBORN, CORN, and ARNOLD, JJ., concur.