(221 P.)

Action by Mattie Brennan against Matt C., its answer, stating that Mettie Ford (which Moore and Mettie Moore. From an order was the same person as Mettie Moore) had on dissolving a garnishment and releasing gar- deposit in said bank $347.65, and stating furnishee, plaintiff appeals. Affirmed. ther that a restraining order had been served on it not to pay out any money from said deposit to any one (save and except to said Mettie Ford), and attached a copy of said order to the answer. The plaintiff served notice that she would take issue with the garnishee on said answer.

Clarence W. Hunter and Tolbert & Tolbert, all of Hobart, for plaintiff in error. Rummons & Hughes, of Hobart, for de

fendants in error.

THREADGILL, C. The writer of this opinion of October 23, 1923, dismissing the appeal on authority of First National Bank of Hennessey v. Harding, 35 Okl. 65, 130 Pac. 905, and other authorities therein cited, concedes the error of the opinion as set out in petition for rehearing, upon authority of section 782, Compiled Statutes of 1921, Mires v. Logan, 79 Okl. 233, 192 Pac. 811, and Strawn v. Brady, 84 Okl. 66, 202 Pac. 505, and upon the suggestion of Ruth C. the petition for rehearing is granted and the 'cause is now considered on its merits.

The plaintiff in error on June 23, 1922, ob

tained judgment in the sum of $360.35, with interest, against Matt C. Moore and his wife, Mettie Moore, in the district court of Kiowa county, Okl., and on July 3, 1922, caused an execution to be issued against the said defendants and placed in the hands of the sheriff for service, and his return on said

execution was as follows:

o'clock

- m.

"Sheriff's Office, Kiowa County, State of Oklahoma. I received this writ on the 3 day of July, A. D. 1922, at Returned by request of plaintiff. "State of Oklahoma, Kiowa County-ss.: I certify the above to be the times and manner of executing the within writ. Date this 8 day of Sept. A. D. 1922. C. R. Lee, Sheriff of

County, by W. T. Gann, Undersheriff."

On September 8, 1922, the plaintiff had another execution issued and placed in the hands of the sheriff for service, and the sheriff makes the following return on this

execution:

m.

On January 26, 1923, the defendant Mettie Moore filed a motion to dissolve and set aside the garnishment and discharge the garnishee on the grounds: (1) That the facts set forth in the affidavit to procure service of garnishee (1a) That the writ was improvidently issued for the reason that no bond was executed by the plaintiff. (2) That the moneys garnished were exempt, being the 90 days' wages of the defendant Mettie Moore; she being the head of the family and having the family to support.

summons were untrue.

On January 27, 1923, the application to dissolve garnishment was tried to the court on the evidence alone of the said Mettie Moore, and resulted in an order of court dissolving the garnishment and releasing the garnishee. The plaintiff excepted and appeals to this court for review, urging that the order dis charging was error for the reason that it was based on the testimony of the defendant alone, that her testimony was impeached by her statements, set out in a verified petition filed in the district court of Stephens county, stating that the money in said bank was the proceeds of her management of a hotel as proprietor, and by which petition she obtained a restraining order against the bank, and her affidavit and testimony before the court on the motion to dissolve the garnishment being in conflict with said petition and testimony too unreasonable to be credited and the court should not have considered it in her favor, but should have held her to the theory she expressed in the injunction action and held against her testimony on the mo tion.

"Sheriff's Office, Kiowa County, State of Oklahoma. I received this writ on the 8 day [1-3] 1. We cannot agree with this contenof Sept. A. D. 1922, at o'clock tion. We have examined and studied the According to the command of the within writ, briefs and the record, and we find that the. finding no goods or chattels belonging to the notice served by the plaintiff to take issue within named defendant whereon to levy on the 9 day of Sept. A. D. 1922, I did forthwith levy with the answer of the garnishee which joinsaid writ upon the following described: One ed the issues and made a case to be heard on Ford car Eng. No. 6116789, tag 203049, of said the affidavit of the plaintiff for the writ and debtor, situated in Kiowa county and state of the answer of the garnishee was never called Oklahoma, to wit: Car released by order plain-up and presented to the court for determinatiff's Atty.

"State of Oklahoma, Kiowa County-ss.: I certify the above to be the times and manner of executing the within writ. Dated this 9 day of Sept. A. D. 1922. C. R. Lee, Sheriff of Kiowa County."

tion, and the contest on the garnishee's answer must therefore be considered as abandoned or, at least, merged in the hearing on the motion of the defendant to dissolve, and the record further discloses that the plaintiff did not contest the motion to dissolve or On December 26, 1922, by affidavit and the affidavit thereto attached except by way without bond, plaintiff obtained a writ of of cross-questioning the defendant, and since garnishment in said cause and had the same the trial court heard her testimony and her served on the State National Bank of Mar-explanation of the seeming conflict in her low, at Marlow, Okl., and the said bank filed statements in the petition for injunction and

her testimony on her motion to dissolve the garnishment and was satisfied with the truthfulness of her statements and believed her testimony, and thereupon made the order dissolving the garnishment proceedings and discharging the garnishee, and, the testimony being sufficient to support the order of the court, the same will not be disturbed by this court. Incorporated Town of Sallisaw v. Chappelle, 67 Okl. 307, 171 Pac. 22; Hale et al, v. Streeter (No. 11417, not yet officially reported) 216 Pac. 154.

[4] 2. The plaintiff further contends that the defendant's ground in her motion to dissolve the garnishment, to the effect that the order of garnishment was improvidently issued for the reason that no bond was executed by the plaintiff, is not tenable, and that the court should have so held. This brings us to consider whether or not the garnishment proceeding was under section 354 or 753 of Compiled Statutes 1921. If it was under the first and not in aid of execution, then the bond would be a prerequisite to the writ. If under section 753 and in aid of execution, no bond would be necessary. Mason et al. v. Miller et al., 54 Okl. 46, 153 Pac. 187.

Plaintiff claims that the proceedings under section 753 do not provide for bond, but only provide that an execution must be issued, served, and returned unsatisfied. Plaintiff also contends that "unsatisfied," in this section, means that if the sheriff did not see fit to levy on the property of the judgment debtor, however much property she might have that could be levied on, and he made a return of the writ without collecting the judgment, this would satisfy the statute; but we cannot agree with this construction of the word

"unsatisfied." We think it was the intention of the Legislature that the officer should search for property upon which to levy the process and, if possible, satisfy the judgment by a sale of the property available, and that the writ of garnishment could not be invoked until the sheriff made an effort and used every reasonable means to find property under the execution, and that his return must show these facts leading to the conclusion that no property could be found before a writ of garnishment under this section could be issued. Now do the returns as above stated come up to these requirements under this section? We think not. The return of the sheriff under the first execution does not show that he did anything but receive the writ and return it by the request of the plain

tiff. His return under the second execution was that he received the writ and executed it by levying on a ford car belonging to the debtor and releasing it on the order of the plaintiff's attorney. The statement in this return, "finding no goods or chattels belonging to the within named defendant whereon to levy," being inconsistent with his statement that he levied on the Ford car, would be sur

plusage, and we must conclude that neither one of these returns is sufficient to show that there was no property that could be taken under execution and applied on the judgment, and the writ of garnishment should not have been issued and served without bond.

Finding no error in the order of the court dissolving the garnishment and discharging the garnishee, we recommend that same be affirmed.

COMMON SCHOOL DIST NO. 49 et al. v.
WOLFE, County Superintendent of Publio
Instruction of Alfalfa County, et al. (No.
12337.)

(Supreme Court of Oklahoma. Dec. 4, 1923.)

(Syllabus by the Court.)

1. Schools and school districts 33-Statute as to change of boundaries held not to apply in proceedings for annexation of entire district to independent school district.

tition of a majority of the qualified electors of
When a county superintendent upon a pe-

a common school district, to have such dis-
trict attached to an independent district, sec-
tion 10405, Compiled Statutes of Oklahoma
1921, which provides that the boundaries of
any district shall not be changed in annexing
territory to an independent district, or to a
city or town constituting an independent dis-
trict, so that the assessed valuation of the
original district shall be reduced more than 5
per cent. of the assessed valuation, does not
apply; the original district having been disor-
ganized, and all of its territory annexed to an
independent district for school purposes only.
2. Schools and school districts 37 (4)—No-
tice not required in annexing territory to in-
dependent school district.

common school district to an independent
The procedure for annexing territory of a
school district is under the provisions of sec-
tion 10405, Compiled Statutes 1921, and it is
not required by any of the provisions of said
section that notice thereof be given.
3. Schools and school districts 37(5)—
County superintendent's order attaching com-
mon school district to independent school
district final after 10 days.

An order made by a county superintendent attaching a common school district to an independent school district under section 10405, Compiled Statutes 1921, when a proper petition has been presented requesting such action, if no appeal is taken therefrom, after the expiration of 10 days becomes a final order.

Commissioners' Opinion, Division No. 5. Appeal from District Court, Alfalfa County; James B. Cullison, Judge.

Proceeding for writ of certiorari by Common School District No. 49 against Chas. C. Wolfe, County Superintendent of Public Instruction of Alfalfa County, and others to review and vacate an order by the county

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(221 P.)

The record discloses that it was stipulated and agreed by and between the attorneys for the plaintiff and defendants that the towns of Carmen, Aline and Jet are each

incorporated towns, maintaining a four-year high school course, fully accredited with the State University of the state of Okla. homa, and that the school districts therein are what are known under the law as independent school districts. The record discloses that on the 23d day of April, 1919, the county superintendent notified in writing the secretary of the board of education of the town of Jet and the clerk of school district No. 49 that he had attached school district No. 49 to independent school district No. 4, Alfalfa county, and that this action was taken by him on the 29th day of March, 1919, in response to a petition signed by more than 50 per cent. of the legal votes of said district No. 49 for such

tricts, and that section 10321, supra, can- sity, shall constitute an independent district not apply. and be governed by the provisions of this artiele."

44

Section 10405, Comp. Stat. 1921, provides: * * Provided, that if any party or parties should object to the changing of the school district boundaries, they shall have the right of appeal as provided for appealing from the decision of such county superintendent in changing the boundaries of other school districts."

Section 10405, supra, provides for the annexation of territory to independent districts by county superintendents "upon petition [to him] by a majority of the qualified electors of the territory desiring to be attached to or detached from such city or town." This section makes no provision for notices to be given by posting or otherwise by the county superintendent. All that section 10405 provides is that, whenever such a petition signed by a majority of the qualified electors is filed with the county superintendent, then, "if he deem it proper and to the best interests of the school of such city or town, he shall issue an order attaching such ter-ed by the county superintendent that he inritory to or detaching such territory from such city or town for school purposes, and such territory shall after being attached from the date of such order, be and compose a part of such city for school purposes only."

In the case of Fowler et al. v. Green et al. (Okl Sup.) 176 Pac. 222, the syllabus is as follows:

"Territory outside the limits of any city or town within an independent school district may be detached from said independent school district when a petition is presented to the county superintendent signed by a majority of the qualified electors residing in said territory sought to be detached, and, if the county superintendent deems it to be for the best interests of the parties presenting said petition, he may enter an order detaching said territory, and such order does not require that the independent school district have notice of such intended action of the superintendent making such order.

"An order made by the county superintendent detaching territory from an independent school district under section 2, art. 6, c. 219, Session Laws 1913, when a proper petition has been presented requesting such action, if no appeal is taken therefrom, after the expiration of ten days becomes a final order."

The record discloses that no appeal was taken from this order of the county superintendent to the board of county commis sioners. Counsel for plaintiffs in error say in their, brief that no appeal was taken for the reason that no notice was given or post

tended to make such an order, and no opportunity for an appeal to the county commissioners was given; and, further, it is contended that the fact that no appeal was taken is in no way decisive of the question involved as the order of the county superintendent is wholly void. In support of this proposition the cases of Woolsey et al. v. Nelson, 43 Okl. 97, 141 Pac. 436, and Common School District No. 32 et al, v. Independent School District No. 56 et al., 75 Okl. 70, 181 Pac. 938, are cited.

In the Woolsey Case, supra, the question considered was one affecting annexation of

a common school district to a common school district, and is therefore not applicable to the facts disclosed by the record in the instant case.

The question decided in the Common School District No. 32 Case, supra, was that the board of county commissioners exceeded its jurisdiction in affirming an order of the county superintendent transferring a portion of the territory of a common school district to an independent school district.

[1] Section 2, art. 6, c. 219, Session Laws, 1913 (section 10405, Comp. Stat. 1921), which provides for the transfer of territory to an independent school district, contains the fol

"And provided, further, that the boundary of any district shall not be changed in annexing territory to an independent district, or to a city or town, constituting an independent district, so that the assessed valuation of the orig

[3] We are of the opinion that section 10405, supra, controls the annexation of in-lowing proviso: dependent districts of adjacent territory for school purposes, rather than section 10321, as contended for by plaintiffs, and that the order of the county superintendent is appealable, and such appeal must be taken within 10 days of the date of the order; if not so appealed said order becomes final after 10 days from its making.

In the instant case it is admitted by all parties that the defendant independent districts are the independent districts of the incorporated towns of Aline, Carmen, and Jet, each of which districts maintain a fouryear high school course, fully accredited with the State University.

Section 10404, Comp. Stat. 1921, provides: "Each city of the first class, and each incorporated town maintaining a four years' high school fully accredited with the State Univer

inal district shall be reduced more than five

per cent. of the assessed valuation."

It appears in the case cited that the proposed transfer would reduce the assessed valuation of the common school district there involved more than 5 per cent., and it was held in that case that the order of the board of county commissioners affirming the order of the county superintendent was void, and the same was set aside. The facts in that case are not analogous to the facts in the case at bar. It is clearly disclosed in the record of the instant case that more than 50 per cent. of the qualified electors of

(221 P.)

instruction, which could not have misled jury, not ground for reversal.

A judgment will not be reversed because of an erroneous instruction, where from the evithe jury could not have been misled by such erdence adduced upon the trial it appears that

common school district No. 49 filed a peti-2. Appeal and error 1064(1)-Erroneous tion with the county superintendent of public instruction to attach the entire common school district to the independent school distriet. The 5 per cent. proviso of section 10405, supra, was clearly intended to prevent the crippling of a common school district by reducing its assessed valuation over 5 per cent. The statute without question was designed to reach the case of a common school district with an insufficient budg

et induced by the reduction of its assessed valuation over 5 per cent.; but, when the entire school district is attached to another district with a much greater assessed valuation than the district attached, the reason for the proviso does not exist, and it would seem was not intended to apply to a case such as this, where it cannot be said that the district has been reduced, but completely absorbed into the independent district.

To say that an order of the county commissioners annexing an entire common school district adjoining an independent district of a city of the first class, or incorporated town, maintaining a four-year high school, fully accredited with the State University, when such order is based upon a petition signed by more than 50 per cent. of the qualified electors of the territory desiring to be attached to such city or town for school purposes only, is wholly void, and that therefore it is not necessary for any party objecting to such order to appeal from the decision of the county superintendent, would be to attribute to the Legislature an intention to prohibit a common school district situated as in this case to enjoy the advantages and facilities possessed by an independent school district. We do not think such an intention can be gathered from any section of the School Code applicable to the instant case.

We are therefore of the opinion that the trial court did not err in refusing to issue the writ of certiorari in this cause, and that the judgment should be affirmed.

FISHER v. WOOLERY et al. (No. 11659.) (Supreme Court of Oklahoma. Dec. 4, 1923.)

(Syllabus by the Court.)

1. Appeal and error 216(3), 501(4)—Instruction not ground for reversal, in absence of exception and proper request.

A judgment will not be reversed because of an erroneous instruction, where it is not made to appear that the court's attention was called to such erroneous instruction by exceptions preserved in the record, or by a proper instruction requested.

roneous instruction.
3. Appeal and error 688(2)-Remarks of
counsel not considered, where not contained
in record.

by the attorney in his closing argument to the
This court cannot say that language used
jury was improper or prejudicial to the rights
of the opposing party, where such language is
not set out in the record.

Commissioners' Opinion, Division No. 1. Appeal from District Court, Woods County; Arthur G. Sutton, Judge.

Action by J. S. Fisher against Charley Woolery and another. Judgment for defendants, and plaintiff appeals. Affirmed.

E. W. Snoddy, of Alva, for plaintiff in error.

J. W. Barry and C. H. Mauntel, both of Alva, for defendants in error.

RAY, C. This is an action of replevin by the mortgagee to recover possession of three horses. Plaintiff obtained possession under the writ of replevin, and retained possession. Judgment was for the defendant in the sum of $325.

But two grounds are urged for the reversal of the judgment:

(1) That the court erred in instructing the jury as follows:

"Should your verdict be for the defendants, and you further believe that at the time of the institution of this suit the horses mentioned were taken from the defendants by a writ of replevin then your verdict should be for them in such sum as you find to be the reason able market value of such horses at any time after they were taken."

(2) Misconduct of the attorney for defendants in his closing argument to the jury..

[1, 2] 1. Plaintiff, in his petition, alleged the three horses to be of the value of $75 each. The defendants, in their cross-petition, alleged the three horses to be of the value of $250, and asked $75 damages for the wrongful taking and retention of the horses. One of the defendants, in response to questions as to the value of the horses at the time they were taken under the writ of replevin, said that two of the horses were of the value of $75 each, and one was of the value of $100, making a total value of the three horses $250. Other witnesses for the defendants were asked the value of the horses, without any time being fixed. The defendants' valuations were from $75 to $100 each.; No evidence was adduced by the defendants

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes