9 P.2d 45 | Okla. | 1932
This is an appeal from a judgment of the court of common pleas of Tulsa county, dismissing an action instituted therein by the plaintiff in error, the plaintiff therein, against the defendant in error, the defendant therein, where the plaintiff sought to recover a money judgment for the conversion of certain personal property. Hereinafter the parties will be referred to as plaintiff and defendant.
The plaintiff in his petition, among other things, alleged that he was the owner of certain personal property therein described; that the property was taken from him in a replevin action instituted against him by the defendant; that the property was delivered to the defendant; that the property was of the reasonable value of $627.50; that the defendant wrongfully, unlawfully, and without authority converted the property to his own use and benefit, disposed of the same, and thereby deprived the plaintiff thereof, to the plaintiff's detriment, injury and damage; that the plaintiff sustained other damage by reason of the institution of the replevin action aforesaid, and that the plaintiff has been damaged in the total sum of $1,327.50, for which amount he prayed judgment. The defendant filed a motion to dismiss, the material part of which was as follows:
"* * * That the petition of the plaintiff filed herein be dismissed for the reason and on the ground that this court does not have jurisdiction to try the cause in said petition alleged or grant the relief therein asked for."
The motion of the defendant was sustained by the trial court and the action was by the judgment of that court dismissed.
There is no such pleading authorized by our Code as a motion to dismiss. Section 264, C. O. S. 1921, provides the pleadings that are allowed, and a motion to dismiss is not included therein. Notwithstanding that section, we are of the opinion that a motion to dismiss is authorized where the trial court does not have jurisdiction of the subject-matter of the action; but where the trial court has jurisdiction of the subject-matter of the action, a motion to *295 dismiss is not authorized by the procedure in this state. The trial court had jurisdiction of the subject-matter of this action.
It is contended that the motion to dismiss should be considered as a demurrer. Should we so consider it, there is but one provision of section 268, C. O. S. 1921, under which it could have been sustained, and that is the one which relates to petitions that do not state facts sufficient to constitute a cause of action. Under the rule stated in Robinson v. Peru Plow Wheel Co., I Okla. 140,
The defendant contends that there were allegations in the petition which show that the cause of action had been adjudicated in a replevin action between the same parties which had been filed in the justice court and which had been tried de novo on appeal in the court of common pleas, and that, under the provisions of section 335, C. O. S. 1921, the claim of the plaintiff herein could have been adjudicated in that action. Section 335, supra, is not applicable herein, for that section relates to an action in replevin in a court of record and not to an action in replevin in a justice court. The procedure for an action in replevin in a justice court is contained in article 4, ch. 4, C. O. S. 1921, and the provisions thereof with reference to a judgment are contained in sections 951 and 952, C. O. S. 1921. Those sections must be read in connection with the provisions of section 18, art. 7, of the Constitution, and, as held in Matheny v. Bank of Nashville,
We, therefore, hold that under the authorities cited the trial court erred in sustaining the motion of the defendant to dismiss the action, and for that reason the cause is remanded to that court, with directions to vacate the judgment rendered and to reinstate the action, and for further proceedings not in conflict herewith.
LESTER, C. J., and CULLISON, SWINDALL, McNEILL, and KORNEGAY, JJ., concur. CLARK, V. C. J., and RILEY and HEFNER, JJ., absent.