State Ex Rel. Dillard v. Gassaway

SWINDALL; J. This is an action invoking the original jurisdiction of this court to issue a writ of prohibition against the district court of Atoka county from proceeding in an action styled ‘‘Cub F. Dillard, Plaintiff, v. C. G. Maxwell, as Sheriff of Atoka County, Okla.” The undisputed facts before this court show that Mrs. Vada Dillard is a resident and citizen of Carter county, Okla., and that the defendant, P. L. -Gassaway, is judge of the district court in and for Atoka county, Okla., and that Cub F. Dillard is a resident of Atoka county, Okla., and that on the 9th day of May, 1929, Mrs. Vada Dillard filed a suit in the district court of Carter county, Okla., for divorce and alimony, the same being case No. 16892, wherein Mrs. Vada Dillard is plaintiff and Joe C. Dillard is defendant, and that in said cause summons was issued and personally served, as by law provided, upon the defendant, Joe O. Dillard. At the same time, Hon. Asa E. Walden, judge of the district court in and for Carter county, made an order that the plaintiff in that action was entitled to the possession of the automobile referred' to in this action, and that the defendant in said action took the same without right or authority of law, and that said defendant in that action was by said order, commanded and directed to deliver to the sheriff of Carter county instanter the automobile described in said order, and that *141 said sheriff or other peace officer was directed and commanded to seize said automobile wherever it might be found within the state of Oklahoma, and hold the same subject to the further order of the court. The sheriff of Carter county, under said order, took possession of the automobile described in said order, and stored same in a garage in the city of Ardmore, Okla., and personally served a copy of the order on Joe C. Dillard, the defendant in that action. Thereafter, on the 10th day of May, 1929, Cub Dillard, as plaintiff, tiled in the district court of Carter county, Okla., a petition in replevin against Yada Dillard alleging' that 'he was the owner of and entitled to immediate possession of the automobile which was taken possession of by the sheriff under order of the district court of Carter county, Okla. Thereafter, while each of said actions was pending in the district court of Garter county, and on the same date and during the nighttime of said day, said Cub F. Dillard entered the building where said automobile was stored and without right or authority of law took the same without the knowledge or consent of the sheriff of Carter county, Okla., or the parties with whom the same was stored, and took said automobile into Atoka county. When said facts were made known to the district court of Carter county, Okla., Judge Asa E. Walden, a judge of the district court of Carter county, in said district court, at Ardmore, Okla., on the 13th day of May, 1929, made an order directing the sheriff of Carter county, or any other peace officer in the state of Oklahoma, to seize and hold said car wherever it might be found, and to return the same to the jurisdiction of said court to the end that the property rights relative to the same could be determined by said court, and that thereafter on the 16th day of May, 1929, the sheriff of Atoka county, Okla., seized said automobile and held the same under and by virtue of the last-mentioned order of the district court of Carter county, Okla. While said automobile was being so held by said sheriff of Atoka county, and before the same could ba returned to the sheriff of Carter county, Okla., the defendant Cub F. Dillard filed in the district court of Atoka county, on the 16th day of May, 1929, an action in replevin, the same being case No. 4548 in the district court of Atoka county, and thereby secured the possession of said automobile from the custody of said sheriff of Atoka county, Okla. The sheriff of Atoka county filed an answer in said replevin action in which he stated that as such sheriff he received a purported order of court signed by Asa EL Walden, district judge of Carter county, Okla., commanding him to seize the property herein replevined, and that, acting- under) and by virtue of the authority of said purported order, he seized said automobile and held the same subject to the order of this court, a copy of which said order of the district court of Carter county, Okla., was) attached to said answer. There was also) filed in the district court of Atoka county, Okla., a motion by Mrs. Yada Dillard calling1 the attention of the district court of Atoka county to the proceedings pending in the district court of Carter county, Okla., as above stated. Entirely disregarding the) orders made by the district court of Carter county in the case of Mrs. Vada Dillard, Plaintiff, v. Joe C. Dillard, Defendant, for divorce and alimony, and the manner ⅛ which Cub F. Dillard had secured possession of said automobile in Carter county, the district court of Atoka county, on tn« 13th day of June, 1929, proceeded to hea* the action No. 4548, of Cub F. Dillard v. C. G. Maxwell as sheriff, and rendered judgment in favor of the plaintiff, Cub F. Dillard, for the possession of the automobile which was taken by Cub F. Dillard from the sheriff of Carter county, and out of the jurisdiction of Carter county, without the consent of the district court of Carter county, and the district court" of Atoka county, in said judgment, further finds that the iilaintiff, Cub F. Dillard, Is an innocent purchaser of said automobile for value and without notice, either constructive or actual, and that plaintiff was an innocent purchaser of said car and 1st the owner thereof. The district court of Atoka county further found that the district court of Carter county was without jurisdiction so far as the plaintiff, Cub F. Dillard, in the action in Atoka county was concerned, and that said court had no jurisdiction over said automobile, and that said order issued by Asa E. Walden* district judge of Carter county, Okla., in case No. 16892, Vada Dillard v. Joe C. Dillard, is void and of no effect as to said automobile and the plaintiff, Cub F. Dillard, for the) reason that the court was and is without; julrisdicftion. We cannot agree wi’tfh the learned trial judge of the district court of Atoka county. This court, in State ex rel. McMurray v. District Court of Hughes County et al.; *142 State ex rel. Pryor v. Melton, District Court Judge, 108 Okla. 32, 235 Pac. 234, held: “Where an action lias been filed iA a district court of this state for the purpose of having adjudged ownership in certain property, or a lien théreon, and process is served on the defendants, the property the tit e or lien on which is thus soug’ht tc be adjudged cannot be taken from the j iris-diction of such court by another court of co-ordinate jurisdiction, seeking to seize the same by a writ of garnishment in favo:: of a judgment creditor in said latter court. The first court thus acquiring jurisdiction, on final decree, would have the right to the control of the property, to direct its delivsry, either to court or to the party adjudged entitled thereto, and another court, on a judgment rendered subsequent to the filing of the first suit, cannot deprive the first court of the power to make its final judgment effective by taking from its jurisdiction and possibly its necessary control the subject-matter in litigation.” This rule is essential to the orderly administration of justice, and to prevent unseemly conflicts between courts whose jurisdiction embraces the same subjects persons. and In the instant case • it is held that the judge of the district court of Atoka county had no jurisdiction to enter a judgment in, favor of the plaintiff in the action in said court, subjecting the property in the legal possession of the sheriff of Carter county and under the jurisdiction and control of tlje district court of Carter county in a subsequent action commenced in Atoka couity. The district court of Carter county had jurisdiction over the action of Vada Diliard against Joe Dillard for divorce and alimony, and to order the property of Joe Dilard held subject to the final decree in that action. if this property was the property of Cub F. Dillard, he could intervene in the divorce action of Vada Dillard v. Joe C. Dillard and estab'ish his right to this property, or he could have proceeded with the re-plevin action he instituted in Carter county and filed his bond in replevin and caused a writ of replevin to issue against the sheriff of Carter county; but this court will not permit any person to unlawfully and wrongfully secure possession of property iron, an officer having the custody thereof under an order of a court, and take the same into the jurisdiction of another court of co-ordinate jurisdiction and thereby defeat the first court of its jurisdiction to determine the rights of property. To permit such a course by litigants would defeat the orderly administration of justicé in the district courts of this state. Such a rule would permit the last court whose jurisdiction is invoked, if' successful in obtaining possession of the property, to determine the rights of all parties interested in disregard of the fact that a court of co-ordinate jurisdiction had acquired power to try and determine the controversy. Should it be determined by the district court of Carter county, on final judgment, that the plaintiff in the action of Vada Dillard v. Joe C. Dillard is not entitled to the relief prayed, or should it be determined by the district court of Carter county that Cub F. Dillard is the owner of the automobile involved in said actions, then the respondent, Cub F. Dillard, may further pursue his remedy for the possession of said, property. But, under the rule of laws announced above, the district court of Carter county should retain the jurisdiction of the controversy, which originated there, to final judgment The judgment of the district court of Atoka county, purporting to subject the automobile to the judgment of Cub F. Dillard against C. 6. Maxwell, as sheriff of Atoka county, was in excess of its jurisdiction. Let the writ as prayed issue. MASON, C. J., and RILEY, HEFNER, OULLISON, and ANDREWS, JJ., concur. CLARK, J., dissents. LESTER, V. C. J., and HUNT, J., absent.