Bardwell v. Riverside Oil & Ref. Co.

• Decision Date: 01 October 1929
• Docket Number: Case Number: 17504
• Parties: BARDWELL v. RIVERSIDE OIL & REFINING CO. et al.
• Court: Oklahoma Supreme Court

1929 OK 382

280 P. 1083

139 Okla. 26

BARDWELL v. RIVERSIDE OIL & REFINING CO. et al.

Case Number: 17504

Supreme Court of Oklahoma

Decided: October 1, 1929

Syllabus

¶0 1. Justices of the Peace--Appeal to District Court for Trial De Novo--Erroneous Refusal of Change of Venue by Justice not Ground for Remanding Cause to Justice Court.

Where defendant gave bond and appealed his case from a justice court to district court for trial de novo, it is not error for the latter court to refuse to remand said cause to the justice upon the ground that he erroneously refused, upon proper affidavit, to transfer the cause to another justice for trial, but retained and tried the cause and rendered judgment therein.

2. Trial--Demurrer to Evidence, When Properly Overruled.

Upon consideration of a demurrer to the evidence, in a law case before a jury, the rule is that if there is any evidence which reasonably tends to support the necessary allegations of plaintiff's petition and his cause of action, the same will be overruled.

3. Forcible Entry and Detainer--Judgment for Plaintiff Sustained.

The verdict and judgment in this case is properly supported by the evidence.

Commissioners' Opinion, Division No. 2.

Error from District Court, Creek County; Fred A. Speakman, Judge.

Action by Riverside Oil & Refining Company and O. O. Owens against Robert Bardwell. Judgment for plaintiffs and defendant appeals. Affirmed.

Edgerton & Vickers, for plaintiff in error.

C. M. Oakes, for defendants in error.

BENNETT, C.

¶1 Riverside Oil & Refining Company and O. O. Owens brought an action of forcible entry and detainer before C. L. Nance, a justice of the peace in the city of Bristow, Okla., against Robert Bardwell for possession of the south half of the southwest quarter of section 19, township 17, range 9 in Creek county, Okla. The defendant filed first a motion to quash summons, and later asked that the trial be adjourned for want of material testimony. Finally, defendant filed an affidavit for change of venue based upon the alleged bias and prejudice of the justice and in the affidavit tendered costs. The court overruled the motion to quash and later overruled the application for change of venue upon the ground that the motion and application appeared to be for delay only, to which the defendant excepted, and thereafter, to wit, on January 29, 1925, an appeal bond was filed in the court, and by it duly approved for an appeal to district court.

¶2 After the cause was docketed in district court, defendant moved the court to remand the cause to said justice of the peace with instructions to grant the change of venue. Defendant alleged that the records and files in the transcript of said cause showed that the refusal of said justice to grant said change of venue was erroneous and contrary to law. The motion to remand was by the court overruled March 16, 1925, and thereupon defendant filed his answer in the form of a general denial and plea of "not guilty."

¶3 At the trial in the district court, there was evidence reasonably tending to support the plaintiffs' cause, and, among other things, it was testified by a witness for plaintiffs that the defendant, in consideration of the payment of a certain sum of money, about which there was some contention, had agreed to move off the premises by January 1, 1925, and deliver possession thereof; that pursuant to such agreement, the oil company, for whose benefit this arrangement was made, gave to the defendant a check for the amount agreed upon, which was duly cashed, and that this occurred in December, 1924.

¶4 The defendant testified that he went into possession of these lands in December, 1923, and held the same under an oral lease for the succeeding year and for which he paid a cash rental. It was testified that he orally leased the property from one Moses, a colored man, who, as far as the record discloses, had no authority to lease the same, but one J. W. Armstrong, who, by the admission of the parties, held the land as trustee and had authority to lease the same for agricultural purposes, was on the farm during the year 1924, and made no objection to the defendant occupying the same for that year.

¶5 Defendant testified that he claimed a right to occupy the lands for the year 1925 because he had spoken to Moses, who said it would be all right for defendant to stay on, but no proof or effort was made to show that Moses had any title or authority to rent the land, but it seems to have been admitted that said Armstrong, as trustee for the owner, had such authority, and that he had, in December, 1924, executed to the plaintiff, O. O. Owens, a written lease upon the lands for a term of five years beginning January 1, 1925. The cause was tried to a jury under instructions which appear to be fair, and a verdict was rendered for the plaintiffs and a judgment followed the verdict, from which the defendant appeals upon the following grounds as shown by his motion for new trial:

(1) That the verdict is not sustained by the evidence and is contrary to law; (2) errors of law occurring at the trial; (3) error of the court in overruling demurrer to the evidence of plaintiff; (4) error of the court in not remanding the matter to the justice of the peace.

¶6 In his brief defendant's assignments of error contain seven grounds, but in his presentation of argument and authorities in his brief, he urges only two grounds:

1. That the refusal of the justice to change the venue was error, which was preserved by defendant's exception and by his motion in the district court to remand the cause on that ground. He refers to a single case as squarely in point, Wrought Iron Range Co. v. Leach, 32 Okla. 706, 123 P. 419. In that case plaintiff in error, as defendant below, filed an affidavit for change of venue before the justice and it was denied. Upon appeal to the county court defendant moved to dismiss the action for want of jurisdiction, and the overruling of this motion was the point discussed in the appeal to the Supreme Court. No motion to remand was made. The court refused to dismiss the action and said:

"The act of the justice in refusing to grant the change was, without doubt, erroneous, and rendered the judgment entered thereafter voidable, but not void. The justice court, however, still had jurisdiction of both subject-matter and parties."

And proceeds further:

"It is presumed that justices of the peace, as well as other public officials, will follow the plain letter of the law, and not exercise the functions of their offices in an oppressive and unlawful manner. Had appellant, in the county court, moved to remand the cause to the justice, or had it made other proper effort to correct the erroneous ruling, on refusal, it might have some cause for complaint; but it sought no such relief. It simply asked to have the cause dismissed for want of jurisdiction, which request, as has been seen, was denied, and rightfully."

¶7 It must be quite clear, and, from his brief it seems that the plaintiff in error so understood it, that so much of the holding and discussion by the court of the question of remanding the cause to the justice in the above quotation is purely dictum, for it in no sense was necessary to or incidental to a determination of the matter there properly presented, and therefore we cannot treat the case either as squarely in point or as controlling here.

¶8 Section 962, C. O. S. 1921, provides:

"If on the return of process, or at any time before the trial shall have been commenced, either party shall file with the justice of the peace before whom any cause is instituted or is pending for trial, an affidavit, stating: * * *or, second, that he verily believes that he cannot have a fair and impartial trial before such justice, on account of the bias or prejudice of the said justice against the affiant; * * * the trial of the case shall be changed to some other justice of the peace, as provided in the next section * * *"

¶9 Under the plain provisions of this section, it is, of course, the duty of a justice to grant a change when a motion supported by proper affidavit is filed; and a refusal to grant the same is error. However, the justice court still has jurisdiction of both the subject-matter and the parties, and if he chooses to refuse the motion and proceeds to trial and judgment, the same would be voidable only. Wrought Iron Range Co. v. Leach, supra.

¶10 The Kansas statute, art. 7, c. 81, Comp. L. 1879, is practically identical with our own, and the Supreme Court of that state held, in the case of Barnhart v. Davis, 2 P. 633:

"The question arising thereon is whether, upon the filing of the affidavit and confessing judgment for costs, as provided for in article 7, c. 81, Comp. Laws 1879, the justice was ousted of all jurisdiction in the case pending before him. * * * The contention is, on the part of the plaintiffs, that after they had filed their affidavit for a change of place of the trial of the case, and had confessed judgment for costs before the justice, that the justice was not only bound to change the place of trial, but that all of his subsequent acts were mere nullities, and that the judgment subsequently rendered was void. With this view we cannot concur. In Herbert v. Beathard, 26 Kan. 746, we decided 'If the application for a change of the place of trial was sufficient, the justice must grant the change, but if the application is not sufficient, he must refuse it.' Of course, within this decision, upon proper application and action, a change of the trial should be granted from the justice to whom the application is made to some other justice; but we have not decided, and are not willing to decide, that upon the filing of a sufficient affidavit * * * before the justice as required by the statute, the justice loses jurisdiction of the cause. If the application, when properly made, is overruled, the ruling is merely erroneous, and the judgment subsequently rendered is not a nullity or void for want of

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