Bd. of Cnty. Comm'rs of Garfield Cnty. v. Beauchamp

• Decision Date: 13 February 1907
• Citation: 1907 OK 8,88 P. 1124,18 Okla. 1
• Parties: THE BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY v. JAMES K. BEAUCHAMP.
• Court: Oklahoma Supreme Court

1907 OK 8

88 P. 1124

18 Okla. 1

THE BOARD OF COUNTY COMMISSIONERS OF GARFIELD COUNTY v. JAMES K. BEAUCHAMP.

Supreme Court of Oklahoma

Decided: February 13, 1907

Syllabus

¶0 1. PRACTICE--Demurrer--Error Waived, When.--Where a demurrer to a pleading is sustained and the pleader presents his amended pleading and makes application to the court for leave to file the same, he thereby waives the error, if any has been committed in sustaining such demurrer. In order to take advantage of a ruling on a demurrer, where the demurrer is sustained, the party must stand upon his pleading held to be defective and not amend or offer to amend.

2. ERROR ASSIGNED--Abandoned When. In a case where the trial court has sustained a demurrer to the petition and the pleader presents an amended pleading with an application for leave to file the same, which application is denied, and where the party making such application to amend assigns such ruling as error in his petition in error but fails to present such assignment either in his brief or oral argument, such assignment of error is deemed to be waived and abandoned.

Error from the District Court of Garfield County; before C. F. Irwin, Trial Judge.

Daniel Huett, County Attorney, and Charles West, for plaintiff in error.

C. H. Parker, Robberts & Curran, Houston & Buckner, Mackey & Mackey, W. O. Woolman, Seymour Foose, Horace Speed, John B. Harrison, Sam P. Ridings, Denton & Denton and Dale & Bierer, for defendant in error.

PANCOAST, J.:

¶1 This action was originally brought in the district court of Garfield county by the plaintiff in error against the defendant in error. The petition is in nineteen counts. The action was brought to recover certain sums which it is claimed were due from the defendant in error that he received as probate judge of Garfield county and had not paid into the county treasury.

¶2 It is alleged that the defendant became probate judge of Garfield county on January 2nd, 1899, and held the office continuously until the 20th day of May, 1902; that he fraudulently appropriated moneys to his own use belonging to the county. The money so alleged to have been appropriated was money received by him as probate judge which he failed to report and pay into the county treasury. Various amendments were made to the petition. On October 5th, 1905, by leave of court, the last amended petition was filed, and on the 9th of December a demurrer was sustained on the ground that it did not contain allegations sufficient to constitute a cause of action.

¶3 By the various counts of the petition it is disclosed that quarterly reports were made by the defendant as probate judge to the county commissioners at the end of each quarter which were in each instance acted upon. Copies of these various reports are attached to and made a part of the last amended petition. Each count represents an alleged cause of action based upon the moneys received during each quarter, the first being denominated "Old court costs," the second, for fees earned by the defendant's predecessor in office, the third, for money which is is alleged was not paid to the county treasurer but was retained by the defendant, and so on down through the various counts, except the sixth, seventh, eight and others, which is for interest alleged to be due upon amounts which were either not reported or not reported at the time required by law. By careful reference, however, to the petition, it is clear that these various discrepancies are all accounted for and disclosed in the various reports similar to count one, which is referred to as "Old court costs," and appears on pages 99 and 100, being footed on page 100, which report was filed at the end of the quarter ending March 31, 1899, there being a number of items, the total of which the defendant charges himself with, as is shown upon page 105, under a column headed "Total amount received," and is again shown on the final count of settlement on page 311. This is true of each of the other counts except those charging interest and those charging that moneys were received for marriage ceremonies performed.

¶4 The demurrer to the last amended petition was sustained by the court below, for the reason that the action, as disclosed by each of the counts in the petition, was barred by the statute of limitations. After rendering judgment sustaining the demurrer, an application to again amend the petition was made by presenting an amended petition, and leave was asked of the court to file the same, which was denied.

¶5 The case made was originally attacked by the defendant in error for the reason that it did not contain a copy of the judgment or final order of the trial court. This defect, however, has been remedied and the case made amended, so that this question is eliminated.

¶6 After the court declined to allow the plaintiff to further amend its petition, a motion for new trial was filed and overruled.

¶7 Elaborate briefs have been filed by both parties, containing in all nearly three hundred pages. The record is likewise voluminous. The only questions, however, argued by plaintiff in error are those growing out of the judgment sustaining the demurrer. The question of the correctness or incorrectness of the ruling of the court in refusing the plaintiff to further amend its petition after the demurrer was sustained, is in no wise touched upon, and, therefore, under the well settled rules of practice, this question must be taken to have been waived by the plaintiff in error.

¶8 The defendant in error, however, in his first proposition contends that all questions of error, if any there be, growing out of the sustaining of the demurrer cannot now be presented to this court in this appeal because of the fact that all such were waived by the plaintiff in error when it presented its amended petition and made application to file the same, which was denied, and, in support of his contention, the case of Berry and Berry v. Barton et al., 12 Okla. 221, 71 P. 1074, is cited as decisive of this proposition. If the defendant in error is correct in his contention in this regard, all other questions are eliminated and it will serve no good purpose to extend this opinion to an extent necessary to take up in detail the various counts of the plaintiff's petition in order to determine whether or not the decision of the court below was correct in sustaining the demurrer thereto.

¶9 It might be well, however, to state that, notwithstanding the allegations of the petition alleging fraud on the part of the defendant while probate judge in failing to make his reports and in failing to account for moneys coming into his hands, yet, in the oral argument made to this court by counsel for plaintiff in...