Opinion
No. 5932
Opinion Filed December 14, 1915.
APPEAL AND ERROR — Finding of Fact — Evidence. Where the trial court finds upon conflicting evidence that the plaintiff has not established his cause of action upon the theory upon which it was commenced, and there is evidence reasonably supporting such finding, the judgment of the trial court in favor of the defendant will not be disturbed.
(Syllabus by the Court.)
Error from District Court, Bryan County; A.H. Ferguson, Judge.
Action by Fannie Pope against the First National Bank of Kenefick and others. Judgment for defendants, and plaintiff brings error. Affirmed.
Victor C. Phillips, for plaintiff in error.
W.F. Semple and John A. MacDonald, for defendants in error.
This was a suit commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, for alleged conversion of a bank check. Upon trial to the court there was judgment for the defendants, to reverse which this proceeding in error was commenced. Hereafter the parties will be caled "plaintiff" and "defendants," respectively, as they appeared in the court below.
The check was in the ordinary form. The plaintiff alleged in substance that by agreement between T.A. Alexander, one of the defendants, who was a contable, and her husband, J.T. Pope, who was engaged in business at Durant, the check was given in lieu of a replevin bond in a replevin action, commenced by the plaintiff herein, against said T.A. Alexander, on the 28th day of June, 1912, the date of the check, and was not to be presented for payment in due course. The court found:
"I find the facts in this case to be: That on the 28th day of June, 1912, T.A. Alexander, who was a constable for township No. 12, Bryan county, Okla., had two executions issued out of the justice court for that township, and that he went to the place of business of J.T. Pope and started to levy on certain property. That J.T. Pope at that time or a short time thereafter insisted that he not levy on the property but give him a check for $210.10, being the matter in controversy in this case. That upon the giving of the check the property was released. The proof, as I understand it, shows that this check was given before a certain replevin suit brought by Fannie Pope, the plaintiff in this case, was filed, to recover the property levied on in the execution from the constable."
As there was sufficient evidence adduced at the trial to support the findings of the trial court, the foregoing findings of fact are controlling upon this court. The plaintiff having failed to establish her cause of action on the theory upon which it was commenced, to wit, that the check was given in lieu of a replevin bond in an action in replevin commenced by her against T.A. Alexander, on the 28th day of June, 1912, it follows that the judgment of the court below must be affirmed.
All the Justices concur.