WATKINS v. MAULDIN

WATKINS v. MAULDIN
1958 OK 280
332 P.2d 962
Case Number: 38233
Decided: 11/25/1958
Supreme Court of Oklahoma

EVERETT WATKINS, PLAINTIFF IN ERROR,
v.
G.A. (BILL) MAULDIN, DEFENDANT IN ERROR.

Syllabus by the Court

¶0 In a garnishment proceeding in which plaintiff gives notice that he takes issue with the answer of the garnishee, and the issue is joined and evidence taken and trial is had as provided in

Appeal from the District Court of Carter County; W.J. Monroe, Judge.

Action by G.A. Mauldin against U.T. Walters, defendant, and Board of County Commissioners of Carter County, Oklahoma, garnishee, in which Everett J. Watkins intervened. Judgment for plaintiff sustaining garnishment; intervenor appeals. Appeal dismissed.

Wilson Wallace, Ardmore, for plaintiff in error.

James D. Payne, Ardmore, for defendant in error.

PER CURIAM.

¶1 This action was initiated by defendant in error, G.A. Mauldin, to recover judgment on an account. The defendant in the action failed to plead to the petition or appear to contest the claim. Defendant in error, upon affidavit, also caused garnishment summons to be served on the Board of County Commissioners of Carter County, who thereafter filed their answer contesting the garnishment and denying that they held any property belonging to defendant. The allegations of this answer were to the effect that the defendant's claim against the county had been validly assigned by him to Everett J. Watkins prior to the service of the garnishment summons. Issue was joined by the defendant in error on the garnishee's answer. Prior to the trial of the issues thus made as provided in

¶2 Defendant in error has reasserted in his brief his previous motion to dismiss. His contention that a motion for new trial was necessary, and the lack thereof fatal to the appeal, is correct. The appeal must be dismissed.

¶3 In Cassidy v. Thompson, 84 Okl. 33, 202 P. 291, 292, this precise question, except for the presence of an intervenor, was considered. In that action we said:

"Where notice that issue will be joined upon an answer in a garnishment proceeding is given and issue is joined and evidence taken, as was done in the instant case, the garnishment proceeding is in such a situation the same as if it were a trial in a civil action. A jury may be impaneled, and to get such proceeding reviewed in this court it is necessary to file a motion for a new trial in the lower court, and give the trial court an opportunity to review any alleged errors."

¶4 Appeal dismissed.

¶5 WELCH, C.J., CORN, V.C.J., and DAVISON, HALLEY, JOHNSON, WILLIAMS, JACKSON and CARLILE, JJ., concur.

¶6 The Court acknowledges the aid of the Supreme Court Commission in the preparation of this opinion. After a tentative opinion was written by the Commission, the cause was assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.