Baker v. Citizens' State Bank of Okeen
| Decision Date | 04 December 1917 |
| Docket Number | 8386. |
| Citation | 177 P. 568,74 Okla. 182,1917 OK 579 |
| Parties | BAKER v. CITIZENS' STATE BANK OF OKEEN. |
| Court | Oklahoma Supreme Court |
Rehearing Denied Jan. 21, 1919.
Syllabus by the Court.
The statutory enumeration of grounds for a new trial is in this jurisdiction exclusive, and any matter for which a new trial may be granted is waived if not embraced in the motion therefor.
Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract cannot be considered on appeal unless such error is assigned in the motion for a new trial as a reason therefor.
This court will reverse the action of the trial court in granting a motion for a new trial, where the record shows beyond all reasonable doubt that the trial court manifestly and materially erred with respect to a pure, simple, and unmixed question of law, and, but for the same, the motion for a new trial would not have been sustained; but, where there are other reasons assigned in the motion for a new trial other than the one concerning which the trial court has erred, this court will not disturb the judgment of the lower court granting a new trial unless the record shows affirmatively that the same should not have been sustained upon any of the other grounds assigned in said motion.
Commissioners' Opinion, Division No. 3.
Error from District Court, Blaine County; T. A. Edwards, Judge.
Action by Jacob Baker against the Citizens' State Bank of Okeen. Judgment for plaintiff, motion for new trial sustained, and plaintiff brings error. Affirmed.
Erwin & Erwin, of Wellston, for plaintiff in error.
Wm. O Woolman, of Watonga, for defendant in error.
This action was instituted by the plaintiff in error in the district court of Blaine county for the recovery of $663.50 being the penalty of twice the amount of usurious interest alleged to have been exacted by the bank from the plaintiff in error upon a series of transactions had between them. The bank interposed a defense of a general denial, a plea of payment by third party, novation, and the statute of limitation, all of which was denied by the plaintiff in error.
The cause was tried to a jury, and a judgment rendered for the plaintiff in error for the full amount sued for. Thereupon in due time the bank filed a motion for a new trial, alleging the following reasons:
On the 3d day of January, 1916, at a subsequent term of court, the court passed upon and sustained said motion for a new trial, and it appears from the record before us that said motion was sustained upon the theory that the demand made by the plaintiff in error upon the bank for the return of usury only demanded the sum of $85, and that the trial court took the view that the plaintiff in error was entitled to recover no more than the amount of his demand, and, inasmuch as the plaintiff in error refused to remit all of the judgment recovered by him against the bank, save and except the sum of $85, the motion for a new trial was sustained, from which the plaintiff in error has appealed to this court, contending that the record shows beyond all reasonable doubt that the trial court manifestly and materially erred with respect to a pure, simple, and unmixed question of law, and but for the same this motion for a new trial would not have been sustained. Ten Cate v. Sharp, 8 Okl. 300, 57 P. 645.
Section 5033 of Revised Laws 1910 contains the grounds for which a new trial may be heard, and the fifth subdivision thereof provides:
"Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract, or for the injury or detention of property."
It will be noticed here that the motion for a new trial filed by the bank in the instant case does not assign subdivision 5 of said section as a reason therefor.
This court in Yates v. First Nat. Bank of Mill Creek, 42 Okl. 95, 140 P. 1174, held:
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