Drinker v. Kepley

RIDDLE, J. The parties will be designated here as they were in the trial court. Plaintiffs sued defendants before a justice of the peace, by filing their bill of particulars, alleging in substance that they were real estate brokers, and that in March, 1911, they entered into a contract with defendants, whereby it was agreed that if they should find a purchaser for certain real estate belonging to the estate of one C. B. Drinker, deceased, and for their services in finding such purchaser and making a sale of said property, plaintiffs were to have for their commission all over $6,800 for which said property might be sold; that they procured a purchaser for said property; that the same was sold for $7,035; that there was a balance due plaintiffs by defendants of $135, for which they prayed judgment. On the same day, plaintiffs filed an affidavit in due form, alleging in substance that the First National Bank of Beggs, Okla., had property and money in its possession belonging to said defendants and was indebted to them over all legal set-offs and exemptions in the sum of $135, and that they had good reason to believe and did believe that plaintiffs would lose their claim, unless a garnishee summons was issued to said bank. Upon the filing of said affidavit, a writ of garnishment was issued. Said cause *688 came on for trial before the justice and defendants filed a motion to discharge said garnishment, upon the ground that no affidavit and bond for attachment were filed, as required by law. This motion was overruled. On the trial, judgment was rendered for plaintiffs for the amount prayed for. A bond was executed within the time prescribed by law, and an appeal was prosecuted to the county court. In the county court, defendants filed a demurrer to the bill of particulars, which was overruled, and they renewed their motion to discharge the garnishment, which was likewise overruled. The case was tried to a jury, where, upon conclusion of plaintiffs’ testimony, defendants demurred thereto, which demurrer was sustained as to defendant Minnie S. Drinker, and overruled as to defendant C. H. Drinker. The testimony of plaintiffs sustains the allegations of the bill of particulars; and the testimony of defendants, in effect, admits the agreement alleged by plaintiffs. The jury returned a verdict in favor of plaintiffs for the full amount of the claim, from which judgment defendants prosecute this appeal. It is first contended by plaintiffs in error that the contract was void, for the reason the land contracted to be sold belonged to the estate of C. B. Drinker, deceased, and defendant C. IT. Drinker was the administrator; that said contract could not be enforced, either against him individually, or as administrator. This contention is not sound. Plaintiffs sued defendant in his individual capacity, and the testimony of plaintiffs shows that the contract was made with defendant in his individual capacity, and not as administrator. The contract or the enforcement thereof in no way affects the property of the estate. We know of no statute, rule of law, or public policy which renders such a contract void. The rule is well settled that a contract made by an executor or administrator which is unauthorized, or when made in his individual capacity in behalf of the estate, or in reference to property belonging to the estate, if containing all the requisites of a legal contract, is enforceable against such executor or administrator personally. 18 Cyc. 247, and cases cited. *689 It is next contended that the justice of the peace, as well as the county court, committed error in overruling the motion to discharge the writ of garnishment, on the ground that plaintiffs did not make and file the affidavit and bond required to be filed to obtain an, attachment. Suffice it to say that, so far as the action of the justice of the peace in overruling said motion is concerned, the same is not before us for consideration. We are of the opinion that the action of the court in overruling this motion was not error. The proceeding in garnishment is purely statutory, and, while the requirements of the statute must be met in order to entitle a party to the writ, yet plaintiffs were not required to follow the requirements of the statute in attachment proceedings. The law relative to garnishment proceedings is special, and the parties and the court are only required to follow the provision of the statute, which was done in this case. If the law on attachments must be 'followed in securing a writ of garnishment, then in a court of record the plaintiff must file two affidavits and two bonds; when he sues out a writ of attachment, which is a much harsher proceeding, and one which may result more disastrously, he is only required to file one bond and one affidavit. It is clear that the law does not contemplate the filing of' the attachment affidavit and bond when a writ of garnishment only is sought. Had the court committed error in this respect, we are of the opinion that it would be harmless, in that when defendant filed his bond to appeal the case from the justice court to the county court, by order of the justice of the peace the garnishment was discharged, and the money of defendant garnished was released. These two points being the only grounds argued in counsel’s brief, and it appearing from the record that the cause was tried to a jury upon a controverted question of fact, and the verdict was returned in favor of plaintiffs and judgment entered thereon, and since no error affecting the substantial rights of defendant has been committed by the trial court, the judgment is affirmed. All the Justices concur.