Mason v. Slonecker

15 Citing cases

  1. Kriewitz v. Taylor

    45 P.2d 527 (Okla. 1935)   Cited 4 times

    In an action for debt and foreclosure of mortgage, the note and mortgage are required by the statute to be made a part of the petition, or attached thereto as exhibits, and if there is a variance between the allegations of the petition and the exhibits attached, the exhibits must control and the exhibits must be held to be a part of the petition. Mason et al. v. Slonecker, 92 Okla. 227, 219 P. 357. 3. Appeal and Error — Review of Equity Case — Sufficiency of Evidence.

  2. Gannaway v. Standard Acc. Ins., Detroit, Mich

    85 F.2d 144 (10th Cir. 1936)   Cited 8 times
    In Gannaway v. Standard Acc. Ins. Co. of Detroit, Mich., 85 F.3d 144, 145 (10th Cir. 1936), the Tenth Circuit addressed the impact of a similar insurance provision, in a case in which an agent represented to a policy holder that his insurance policy would not be terminated if he did not pay his premium because the insurance company would extend him a credit.

    The demurrer admitted all matters well pleaded, but these allegations are in conflict with the clear provision in the policy expressly denying authority to an agent to make an agreement of that kind. It is well settled in Oklahoma and elsewhere that where a written instrument is the foundation of a civil action and a copy of it is attached to the pleading, it controls over the pleading in respect of any conflict between the two. Hyde v. City of Altus, 92 Okla. 170, 218 P. 1081; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Forry v. Brophy, 116 Okla. 99, 243 P. 506; Home Ins. Co. v. Whitchurch, 139 Okla. 1, 281 P. 234; School District No. 60 v. Crabtree, 146 Okla. 197, 294 P. 171; Deere v. Gypsy Oil Co., 160 Okla. 237, 15 P.2d 1086; Devine v. Pyanhunkah, 170 Okla. 178, 39 P.2d 132; Maxwell-Chamberlain Motor Co. v. Piatt, 65 Colo. 140, 173 P. 867; Stillwell Hotel Co. v. Anderson (Cal.App.) 42 P.2d 720; Aetna Ins. Co. v. Long (Tex.Civ.App.) 47 S.W.2d 854; Rounds v. Owensboro Ferry Co., 253 Ky. 301, 69 S.W.2d 350; Frigorifico Wilson De La Argentina v. Weirton Steel Co. (C.C.A.) 62 F.2d 677.

  3. Chandler-Frates Reitz v. Kostich

    1981 OK 74 (Okla. 1981)   Cited 9 times
    In Chandler-Frates & Reitz v. Kostich, 1981 OK 74, 630 P.2d 1287, the Court's discussion supports the conclusion that the award of postjudgment interest in Edwards (i.e., from the date of the original judgment) is strictly limited to circumstances where the appellate court modifies, or affirms as modified, the judgment.

    See Annotation in 4 A.L.R.3rd 1221, 1222-1223 on Date from which interest on judgment starts running, as affected by modification of amount of judgment on appeal.Todd v. Orr, 44 Okla. 459, 145 P. 393 [1914]; Mason v. Slonecker, 92 Okla. 227, 219 P. 357, 362 [1923]; Vilbig Const. Co. et al. v. Whitham, 201 Okla. 86, 201 P.2d 922 [1949]; Missouri-Kansas-Texas Railroad Co. v. Edwards, Okla., 401 P.2d 303, 304-306 [1961].Aishman v. Taylor, Okla., 516 P.2d 244, 245 [1973]; J.A. Tobin Construction Co. v. Grandview Bank, Okla., 424 P.2d 81, 84 [1967].

  4. Hostutler v. State

    302 P.2d 983 (Okla. 1956)   Cited 6 times
    In Hostutler v. State of Oklahoma on Relation of the Commissioners of the Land Office, Okla., 302 P.2d 983, we held that before a judgment will be reversed on account of the admission of incompetent evidence, it must affirmatively appear that the evidence probably resulted prejudicially to the interests of the one making the objection thereto.

    It has long been the rule in this Court that where a suit is based on the exhibits and there is a discrepancy between the allegations in the petition and the exhibits, the exhibits control. First National Bank of Arkansas City v. Jones, 2 Okla. 353, 37 P. 824; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Gourley v. Northwestern National Life Ins. Co., 94 Okla. 46, 220 P. 645. For his second contention the defendant urges that the trial court erred in admitting incompetent evidence offered by plaintiff.

  5. Nabob Oil Co. v. Bay State Oil Gas Co.

    1953 OK 59 (Okla. 1953)   Cited 11 times

    "Where there is a variance between the allegations of the petition and exhibits attached thereto as a basis of suit, the contents of the exhibits control and prevail over the allegations of the petition." See, also, Billingslea v. Billingslea, 194 Okla. 400, 152 P.2d 276; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Home Insurance Co. of New York v. Whitchurch, 139 Okla. 1, 281 P. 234. Bowker v. Linton, 69 Okla. 280, 172 P. 442, is a case remarkably similar to the case at bar.

  6. Arnold v. Arnold

    194 Okla. 571 (Okla. 1944)   Cited 8 times

    The defendant contends, primarily, that it was error to overrule his demurrer to the second amended petition of the plaintiff. In support of the contention so made defendant invokes the rule which prevails where an action is based upon written instruments and where the allegations of the petition are at variance with the terms of said instruments, and in this connection our attention is directed to Sawyer v. Sawyer, 182 Okla. 348, 77 P.2d 703; Schmeusser v. Schmeusser, 181 Okla. 18, 72 P.2d 378; Robison v. Hamm, 179 Okla. 79, 64 P.2d 894; Devine v. Pyanhunkah, 170 Okla. 178, 39 P.2d 132; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Newman v. Newman, 27 Okla. 381, 112 P. 1007. An examination of the cited cases will reveal that while they are authority for the rule which the defendant seeks to invoke, they are without application to the case at bar for the reason that plaintiff in her amended petition alleged a state of facts which did not depend upon the terms of the instrument attached to the petition as exhibits, but which, if true, would have been sufficient to establish the right of the plaintiff to the relief sought.

  7. Hearn v. Snow

    88 P.2d 891 (Okla. 1939)   Cited 1 times

    In an action for debt and foreclosure of mortgage, the note and mortgage are required by the statute to be made a part of the petition, or attached thereto as exhibits, and if there is a variance between the allegations of the petition and the exhibits attached, the exhibits must control and the exhibits must be held to be a part of the petition. Mason et al. v. Slonecker, 92 Okla. 227, 219 P. 357. 2.

  8. Schmeusser v. Schmeusser

    181 Okla. 18 (Okla. 1937)   Cited 9 times
    In Schmeusser v. Schmeusser, 181 Okla. 18, 72 P.2d 378, it is held that before a decree will be vacated, good ground must exist for such action and an appropriate proceeding must be brought for the purpose of vacating the decree.

    Under such circumstances the exhibits control. First National Bank of Arkansas City v. Jones, 2 Okla. 353, 37 P. 824; Mason v. Slonecker, 92 Okla. 227, 219 P. 357. While a decree of divorce may be vacated, if good grounds exist, in an appropriate proceeding instituted for that purpose (Rodgers v. Nichols, 15) Okla. 579, 83 P. 923; Holt v. Holt, 23 Okla. 639, 102 P. 187; Clay v. Robertson, 30 Okla. 758, 120 P. 1102; Butler v. Butler, 34 Okla. 392, 125 P. 1127; Crow v. Crow, 40 Okla. 455, 139 P. 122; Wooden v. Wooden, 113 Okla. 81, 239 P. 231; Burton v. Burton, 176 Okla. 494, 56 P.2d 385, 104 A. L. R. 728); and an action to modify a divorce decree on the ground of fraud and division of property may be maintained without the necessity of alleging a defense to the divorce action (Mann v. Mann, 135 Okla. 211, 275 P. 348), nevertheless it is essential that facts entitling the party to the relief sought be alleged in a petition to vacate such judgment before any relief may be granted thereunder.

  9. Ray v. Oklahoma Furn. Mfg. Co.

    170 Okla. 414 (Okla. 1935)   Cited 5 times
    Stating that under Oklahoma law, the plaintiff bears the burden of proof on tolling of the limitations period

    We have held that where a written instrument is relied upon and is attached as an exhibit, its wording controls over a variance therefrom in the allegations relating thereto in the pleadings. Mason v. Slonecker, 92 Okla. 227, 219 P. 357. The note and the indorsements thereon are attached and made a part of the petition; therefore, they are the controlling part of the pleading.

  10. Devine v. Pyanhunkah

    170 Okla. 178 (Okla. 1934)   Cited 9 times

    It has been decided many times by this court that where there is a conflict in the allegations set forth in the pleadings and the exhibit thereto attached, upon which the cause of action is based, the language of the exhibit is controlling. Deere v. Gypsy Oil Co., 160 Okla. 237, 15 P.2d 1086; Mason v. Slonecker, 92 Okla. 227, 219 P. 357; Forry v. Brophy, 116 Okla. 99, 243 P. 506; Home Insurance Co. v. Whitchurch, 139 Okla. 1, 281 P. 234; School District No. 60 v. Crabtree, 146 Okla. 197, 294 P. 171. There are no allegations in the petition that there had been any settlement made by the plaintiff, Alice Pyanhunka, and Harry Pyanhunkah, or the defendant George Mellott, administrator of the estate of Harry Pyanhunkah, deceased, and it being admitted by the interveners that they had received their one-third interest in the amount of $200 that had been collected, and it being clear under the terms of the contract that they were only to receive, and their assignment only to attach to, the one-third interest that was recovered, the demurrers to the petition in intervention were properly sustained.