FISHER v. HARTFORD ACCIDENT & INDEM. CO.

FISHER v. HARTFORD ACCIDENT & INDEM. CO.
1933 OK 223
21 P.2d 15
163 Okla. 85
Case Number: 21480
Decided: 04/11/1933
Supreme Court of Oklahoma

Fisher
v.
Hartford Acci. & Indem. Co.

Syllabus

¶0 Appeal and Error--Rendition of Money Judgment for Plaintiff in Error for Amount Claimed in Accordance With Motion and Tender of Defendant in Error.
Where an appeal is taken to this court from a judgment of a trial court denying a prayer for a money judgment on a construction bond, and the defendant in error, by a written motion, admits the jurisdiction of this court over the person of the defendant in error and the subject-matter of the action and the jurisdiction of this court to render a judgment for the amount claimed by the plaintiff in error against the defendant in error and tenders a sufficient amount thereof to the plaintiff in error, this court will render a judgment for the amount tendered in full satisfaction of the claim of the plaintiff in error against the defendant in error and will remand the cause to the trial court for further proceedings not in conflict herewith.

Appeal from Court of Common Pleas, Tulsa County; S. J. Clendenning, Judge.

Action by Walter Fisher and another, copartners doing business as Superior Weatherstrip & Calking Company, against the Hartford Accident & Indemnity Company. Judgment for defendant, and plaintiffs appeal. Judgment rendered.

C. A. Steele and W. A. Daugherty, for plaintiffs in error.
Herbert D. Mason, Harold R. Williams, and Herbert S. French, for defendant in error.

ANDREWS, J.

¶1 This is an appeal by the plaintiffs in an action in the court of common pleas of Tulsa county from a judgment of that court sustaining a demurrer of the defendant to the petition of the plaintiffs filed therein.

¶2 After the cause had been briefed in this court by the parties hereto, the defendant filed herein a motion, as follows:

"Comes now the defendant in error, the Hartford and Indemnity Company, and moves that it be permitted to withdraw the demurrer heretofore filed by it in the above-entitled cause and heretofore sustained by the court of common pleas of Tulsa county, Okla., and that it be denied leave to plead further in said cause, and that said cause be remanded to the said court of common pleas of Tulsa county, Okla., with directions to enter judgment in favor of the plaintiffs in error and against the defendant in error for the full amount of their claim, together with interest and costs, or, in the alternative, that this court enter judgment against the said defendant in error for the full amount of the claim of the said plaintiffs in error, together with interest and costs, either of which judgments said defendant in error stands ready, able, and willing to pay, and hereby tenders and offers to pay in full."

¶3 The plaintiffs objected to the sustaining of that motion for the verbally stated reason that they wished to obtain a decision of this court on the legal questions involved in the action.

¶4 The legal effect of the motion filed by the defendant herein is that it has admitted the jurisdiction of this court over its person and over the subject-matter of the action and the jurisdiction of this court to render a judgment for the amount claimed by the plaintiffs. It has made an unconditional tender to the plaintiffs of the sum of $ 210, and has waived any right to demand change therefrom. It is not contended that that amount was not sufficient to cover the full amount of the claim of the plaintiffs against the defendant with interest and costs.

¶5 Under the theory that this court ordinarily will not determine abstract or hypothetical questions, and by reason of the admission by the defendant of the jurisdiction of this court as aforesaid, and by reason of its tender of a sufficient amount to pay the claim of the plaintiffs, it is ordered, adjudged, and decreed by this court that the plaintiffs in error herein have and recover judgment of and from the defendant in error herein in the sum of $ 210, as agreed to by the defendant in error in its tender of that amount to the plaintiffs in error, which amount is in full satisfaction of the claims of the plaintiffs against the defendant, including all interest and costs.

¶6 The cause is remanded to the trial court to enter this judgment on the judgment docket and for other proceedings not in conflict herewith.