GEISELMANN v. REMLING

GEISELMANN v. REMLING
1935 OK 930
49 P.2d 1064
174 Okla. 99
Case Number: 25954
Decided: 10/08/1935
Supreme Court of Oklahoma

GEISELMANN
v.
REMLING

Syllabus

¶0 Justices of the Peace--Jurisdiction in Replevin Action fixed by Allegation of value in replevin Affidavit--Prayer for costs "including Attorney Fees" disregarded in Verdict and judgment.
The Jurisdiction of the justice of the peace court in a replevin action for the possession of property is fixed by the affidavit in replevin, and the fact that the plaintiff in his bill of particulars prays for costs, "including attorney fees," in a sum which, when added to the amount of the alleged value in the affidavit, exceeds the jurisdiction of the court will not operate to oust the court of jurisdiction where the verdict and the judgment disregard such allegation and order possession of the property delivered, and no objection is made to the form of verdict or the judgment rendered other than the objection to the jurisdiction of the court.

Appeal from District Court, Texas County; F. Hiner Dale, Judge.

Action in replevin by O. W. Remling against August Geiselmann. Judgment for plaintiff, and defendant appeals. Affirmed.

George M. Frittz and Hughes & Dickson, for plaintiff in error.
Rizley & Sweet and Haskell Paul, for defendant in error.

PER CURIAM.

¶1 This action was commenced in the justice of the peace court of Texas county to recover the possession of certain personal property under promissory note and chattel mortgage.

¶2 The affidavit in replevin fixed the amount: at $ 199.50 and bill of particulars was filed praying for the possession of property or the value thereof, and in which prayer plaintiff prays for his costs, "including said attorney fees." The defendant made no defense other than to appear and object to the jurisdiction of the court for the reason that the bill of particulars by adding the attorney fees in the request for costs exceeded the jurisdictional amount of $ 200. On appeal to the district court and trial de novo, without objection on the part of either party, the Jury returned a verdict for the possession of the property, and thereupon the court entered judgment as follows:

"It is further ordered, adjudged, and decreed that said property which is now in the possession of said defendant be immediately delivered to the said plaintiff, or his agent, in accordance with this judgment, and it is further ordered that plaintiff herein have judgment for his costs."

¶3 The attorney fees are not part of the costs of a replevin action, and the sole question in such action in the nature of the one brought here is for the possession of the property or the value thereof Chadwell v. Brown, 88 Okla. 44, 211 P. 410; Wilson Motor Co. v. Dunn, 129 Okla. 211, 264 P. 194; Damaras v. Dance, 164 Okla. 63, 22 P.2d 1035. The request to be allowed the costs, including the attorney fees, was surplusage and was ignored in the verdict and the judgment of the court.

¶4 In our opinion the trial was fair and without prejudice to the defendant, who offered: no defense to the action. The action was brought upon an affidavit which determined the jurisdictional amount in controversy. The judgment was upon a verdict which was for the possession of the property, to which the plaintiff was entitled without dispute.

¶5 We have examined the authorities cited in the brief of the plaintiff in error, and are of the opinion that they are not in point. The amount claimed in this case was not involved, as the only question before the court was the possession of the property or the value thereof, as no damage was alleged or attempted to be proved. Damaras v. Dance, supra.

¶6 The judgment of the trial court is affirmed.