
    BARLOW et al. v. RITCHIE et al.
    No. 11880
    Opinion Filed Nov. 20, 1923.
    Rehearing Denied Jan. 10, 1925.
    1. Execution —■ Wrongful Levy —i Exemplary Damages.
    _ In an action for the recovery of possession of personal property, wherein exemplary damages are sought on account of the oppressive and malicious levy of the writ, and the plaintiffs plead exemption as one of the grounds for recovery, and the evidence shows that the plaintiffs had been out of the city for more than one year prior to the levy, and had not used the household effects, and had no returned to their place of domicile more than two or three times during the continued absence, the evidence is not sufficient to submit the question of exemplary damages to the jury.
    2. Same — Prejudicial Admission of Evidence.
    Where the evidence shows that the wife «'as absent from the city and had been ’or some time prior to the levy, the testimony of the plaintiff over the objection and exception -of the defendants to the effect that the levy caused thie wervows breakdown of the wife and continued confinement, and from which physical condition, the wife had not recovered, and that her recovery was doubtful, fe incompetent for any purpose in the trial of the cause and prejudicial to the rights of the defendants.
    3. Same — Process — Sufficiency of Service.
    The return of the service on the plaintiff issued out of the cause in the justice court from which the execution was issued and levied on the goods involved in this ease is good against the collateral attack of the? wife, Sarah Ritchie.
    4. Same — Instructions.
    It was error for the court to instruct the jury that the return of service! was void, and consequently the iudgment based thereon against Sarah Ritchie.
    5. Same — Reversal.
    For thd errors occuring in the course of the trial, the cause should be reversed and remanded for new trial.
    (Syllabus by 'Stephenson, G.)
    Commissioners’ Opinion, Division No. 4.
    Error from District Court, Oklahoma County; George W. Clark, Judge.
    
      Action by J. H. Ritchie and Sarah Ritchie against L. H. Barlo-w and W. F. Mclver. as constable, for recovery of possession of household goods levied on by execution. Judgment for plaintiffs. Defendants bring error.
    Reversed and remanded.
    Morgan & Deupree, for plaintiffs in'error.
    Loyal J. Miller, for defendants in error.
   Opinion Jby

STEPHENSON, C.

Heretofore L. IT. Barlow commenced his action in thd justice court of Oklahoma county, against J. IT. land 'Sarah Ritchie et al. Summons appears to hare been served on the defendants and bears the following return :

“Received this. writ December ISth, 1018, served same bs' delivering a copy thereof with the indorsements thereon duly certified, to the within named defendant, J. H. Ritchie, ancl served J. IT. Ritchie for all of the within named' defendants leaving a copy for defendants.
“J. N. Goucher, Constable.”

The summons was addressed to Sarah Rit-chie; and J. IT. Ritchie, along with other defendants named therein. In the trial of the cause judgment went for the plaintiff, Barlow, and against the defendants in the principal sum of .$200. The defendant Barlow caused an (Execution to be levied on the household effects involved herein by W. E. Mclver, as constable. Prior to the sale under execution J. H. Ritchie commenced his action against the constable, joining . .Toe Layton, another constable of Oklahoma county, for the possession of the property. The plaintiff for his cause of action alleged that the goods were exempt, and, further, that summons was not served on him in the action. Later, L. IT. Barlow! was substituted as defendant for Joe Lay-ton. In a subsequent proceeding Sarah Ritchie, the wife of thej plaintiff, was made a party plaintiff, who alleged that she was a joint owner of the property with her husband. The plaintiffs then alleged that they were residents of the state of Oklahoma at the time the levy was made on the property, and that the property was exempt from the levy. The plaintiffs further alleged -that the levy was wantonly, maliciously, and oppressively made and asked to be allowed exemplary damages thereon If was ¡further contended by the plafj':',tiffs that the judgment rendered in the justice court was void for want of service on -these (plalintliiffis. The evidence slewed tha-t J. H. Ritchie was an officer or employe of the Uncle Sam Oil Company, and had been out of the city in the course of his employment with the oi] company for more than one year prior to the date of the levy. The wife had been during -that tim^ out of the city for her health. The plaintiffs, according to the evidence, had been in the city possibly on two or three occasions during the year or more preceding the date of the levy. The plaintiffs ha¡d \etit their household effects during that time in a house owned by the wife -in Oklahoma City. The plaintiffs weire not in the city and so far as the records show, in the state, at the time the levy was made. The plaintiff J. H. Ritchie testified that his home Cwas in. Oklahoma City, and that he had hot intended to abandon Ms residence in this -city, and that he ' claimed his exemption oh the property. Over the objections and exception of the defendants, J. IT. Ritchie was permitted to testify that -the levy on the property resulted in a bad effect on his wife’s health causing a nervous breakdown. He further testified that she had not recovered from the nervous breakdown at the time of the trial, and that her final recovery was doubtful. The plaintiff further testified that on account of the physical condition of his wife resulting from the! levy on the household goods, it became necessary for him to take his wife to a higher altitude in the hope of improving her health. The evidence was incompetent for any purpose in the trial of the cause, and was calculated tó -prejudice the jury. There is at least the appearance of some evidence of prejudice uli-th the jury in the return of its verdict for $625 as the reasonable value of the property when this verdict is considered with -the fact -that the property, sold -at public sale with notice, and apparently in a fair manner, brought /only $190.50. The evidence shows that the plaintiff J. II. Ritchie had been out of the city for morej than one year prior to the levy in the pursuit of his regular employment, and that his wife had also been absent from -the city during the same period or time, and neither party had been back in. the city more than two or three -times iin the year’s time preceding the levy. We think the evidence was insufficient to warrant the submission of the question of exemplary damages and attorney’s feej to the jury. However, as the jury returned its verdict for exemplary damages -,a.nd a'Bt'orney’t® fee tin separate items, the judgment might be modified and affirmed except for the instruction of the court to the jury laiter referred to. The court instructed the jury that th?; return of service in the justice court as to Sarah Ritchie was insufficient and void. If Sarah Ritchie had attacked the service and return in the justice court by special appearance, tbe proof in explaining tbe officer’s return and. showing tbe relation between J. H. Bitchlie and Sarah Riteh'ie would bave shown that the officer serving the summons had met with the requirements of the statute, if in fact the copy was serried on J. H. Ritchie. The return is good against collateral attack in so far as it relates to service on Sarah Ritchie. Therefore, tbe court was in error in instructing the jury' that the rqrurn was void as to the plaintiff Sarah Ritchie. We will not pass on the sufficiency of the testi-m< ny of J. H. Ritchie to impeach the return of the officer as to service made on him. This question might be determined from the evidence on a retrial of this cause as measured by the rule in Pettis v. Johnston, 78 Okla. 277, 190 Pac. 681.

Therefore, we recommend that the cause; he reversed and remanded for new trial.

By the Court: It. is so ordered.  