Barnes v. Lynch
| Decision Date | 11 February 1899 |
| Citation | 59 P. 995,9 Okla. 11,9 Okla. 156,1899 OK 1 |
| Parties | BARNES et al. v. LYNCH et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where an action is tried before a district judge, and time given to make a "case," and the term of office of the judge expires during the time fixed for making the "case," he may settle and sign the "case after going out of office, although at the time he retired from office no time had been fixed for settling and signing the "case." Section 567, Code Civ. Proc., authorizes an ex-judge to settle and sign a "case" if, at the time of his retirement from office, either the time for making and serving "case," had not expired, or, if it had expired, the retirement of the judge was pending the time fixed for settling and signing the "case."
2. A party who voluntarily acquiesces in or ratifies, either partially or in toto, a judgment against him, cannot appeal from it. Where plaintiffs brought action, claiming to be the owners of certain lands, praying a decree for absolute title and for the quieting of the same, and the decree was for the defendant, decreeing that defendant was the owner of the lands, from which decree plaintiffs appealed, and pending appeal, on supplemental petition in the trial court plaintiffs claimed to have expended individual moneys in the purchase of the lands under circumstances that would entitle them to an equitable lien for the amount expended, and had a referee appointed to make an accounting of the money so expended, and asking that the amount so found should be decreed and equitable lien upon the land, held, that such subsequent proceeding, being inconsistent with the assertion of absolute ownership and title, was an acquiescence in and ratification of the judgment, and that their appeal should be dismissed.
3. Evidence dehors the record, to establish certain facts affecting proceedings on appeal, is admissible in an appellate court, and the admission of such evidence, when uncontroverted, is not an assumption of original jurisdiction.
On Rehearing.
1. Where an action is tried before a district judge, and time given to make a "case," and the term of office of the judge expires during the time fixed for making the "case," he may settle and sign the "case," after going out of office, although at the time he retired from office no time had been fixed for settling and signing the "case," Section 567, Code Civ. Proc., authorizes an ex-judge to settle and sign a "case" if, at the time of his retirement from office, either the time for making and serving "case" had not expired, or, if it had expired, the retirement of the judge was pending the time fixed for settling and signing the "case."
2. When one state adopts the statute of another, it adopts only the construction placed thereon by the courts of the latter state which have been rendered before the adoption of the statute.
3. It was claimed in the present case, and evidence was tendered to show, that a large amount of money had been advanced by the plaintiffs for the acquisition of the land contended for which testimony was, under the issues in this case, property refused by the trial court. The issues in this cause having been determined against the plaintiff in the trial court, the plaintiff appealed to this court in this proceeding, and at the same time, by a supplemental petition, asked the trial court for a referee who should ascertain the facts and make a recommendation to the court as to the amount of money so advanced by the plaintiffs, and that this proceeding, under a supplemental petition, should be taken only in the event of an unfavorable determination in this court upon appeal, and that in this event also the plaintiffs might have relief, by way of compensation out of the land contended for here, for the expenditures so claimed to have been made by them. The relief sought for by the supplemental petition was not the relief sought in the petition in this case. Evidence was refused at the trial in support of it. No wrong could be done by permitting the application for relief made in the supplemental petition, and the plaintiffs were not stopped from taking this appeal by reason of asking for the relief sought in the supplemental petition, which was only sought upon condition that this appeal should result unfavorably to them.
4. A person cannot legally purchase on his own account that which his duty or trust requires him to sell on account of another nor purchase on account of another that which he sells on his own account. He is not allowed to unite the two opposite characters of buyers and seller.
5. The officers of a corporation having entered into an agreement between themselves to divide the assets of the corporation among themselves, and to merge the property of the corporation in their individual estates, the agreement was voidable at the option of the corporation, or at the instance of any stockholder; and, since both the corporation and the stockholders other than the officers themselves who participated in the agreement are here asserting their rights against the agreement, the whole transaction will be set aside and disregarded. and the deeds executed in pursuance of it are held to be void.
6. It makes no difference what the consideration of deeds made in execution of such an agreement was, even though it was adequate and full, and no actual injury was done to the stockholders. The principle will still able strictly adhered to that against the dissent of any stockholder of a corporation or cestui que Trust protesting and asserting his right in the matter, the rule which prohibits the trustee from dealing with his trust in such a manner as to appropriate it with and mingle it with his own estate will be set aside, and no inquiry on the subject will be permitted.
7. Since it was shown and is uncontradicted in this cause that the plaintiffs, who participated, as officers, in the illegal agreement referred to to divide the assets of the estate between themselves and with one of the defendants, had themselves removed the books of the corporation out of the jurisdiction of the court, in order to defeat the effect of an order of the court, which was expected, appointing a receiver to take possession of the assets of the corporation and in order to prevent that officer of that court, if one should be appointed, from ascertaining from the records of the company what the exact facts were relating to the company's affairs, and that no reasonable efforts were made to retain or recover them by the plaintiffs, secondary evidence of what those records contained should be refused and rejected.
8. The rule has been heretofore uniformly adopted by this court, and is now here again reasserted, that, when special findings of fact have been made by the jury, and evidence has been introduced in the case reasonably tending to support them, they will not be reviewed here.
9. In cases of equitable cognizance, while the judge may call in a jury or consent to one, for the purpose of advising him upon the questions of fact, he may adopt or reject their conclusions as he sees fit, and the whole matter must eventually be left to him to determine, and instructions to the jury furnish no ground of error upon appeal. It was not only the right, but the duty, of the court to have determined all question of fact as well as of law.
10. When an illegal transactions has been consummated, when no court has been called upon to give aid to it, when the proceeds of the illegal transaction have been actually received, and received in that which the law recognizes as having value, and the court is not asked to enforce an illegal contract, and when it is not necessary to invoke the aid of the illegal transaction to establish the right to recover, the illegal transaction cannot be invoked as a defense or set up as a bar to relief, to which, upon other legal grounds, the parties to the action may be entitled.
11. Rule 4 of the rules of practice of this court (43 P. viii.) requires that "the briefs must refer specifically to the page of the record which counsel desires to have examined." When this rule is not complied with, the court will not hold itself bound to refer to any page of the record "which counsel desires to have examined." except such as are specifically referred to in the briefs.
Error from district court, Kay County; before Justice A. G. C. Bierer.
Action by Burton S. Barnes and John W. Dalton, as partners, against J. W. Lynch. the Ponca City Land & Improvement Company, and others, to recover certain lands, and to quiet title thereto. From a decree in favor of the defendants, plaintiffs bring error. Dismissed.
30k569(3) Authority of Court or Judge.
Under Code Civ.Proc. § 567, providing that where the term of a trial judge shall expire before the time fixed for settling and signing a case it shall be his duty to certify, settle, or sign the case as if his term had not expired, a judge may, after he goes out of office, settle and sign a case, if his term expire during the period granted for preparing it though at the date of his retirement from office no time had been definitely fixed for the signing and settling.
H. B. Martin, J. B. Diggs, and George S. Green, for plaintiffs in error.
Pollock & Lafferty, J. W. Quick, E. Bee Guthrey, and C. W. Ransom, for defendants in error.
The decree in this case was entered on February 21, 1898, when 100 days were allowed the plaintiffs in error to make and serve a case-made. Fifteen days there after was given to suggest amendments thereto; the case to be settled upon five days notice. The "case" was served as May 28, 1898. July 1, 1898, notice was given that the case-made would be presented for settling and signing on July 6, 1898. ...
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