Bell v. Bearman

• Decision Date: 19 June 1913
• Docket Number: Case Number: 2553
• Citation: 133 P. 188,1913 OK 421,37 Okla. 645
• Parties: BELL v. BEARMAN et al.
• Court: Oklahoma Supreme Court

1913 OK 421

133 P. 188

37 Okla. 645

BELL v. BEARMAN et al.

Case Number: 2553

Supreme Court of Oklahoma

Decided: June 19, 1913

Syllabus

¶0 1. APPEAL AND EROR--Time for Taking Appeal. Act Feb. 14, 1911 (Sess. Laws 1910-11, c. 18), limiting the time within which appeals can be taken to six months, is not retroactive, and does not apply to cases tried before it was passed.

2. SAME--Assignments of Error--Amendment. When the assignment of errors fails to allege as error the overruling of the motion for new trial, the plaintiff in error will be permitted to amend his assignment of errors within the time allowed by law for appealing the case, so as to assign as error the action of the court in overruling the motion for a new trial.

3. EVIDENCE--Opinion--Age. It is not error to permit witnesses acquainted with a person whose age at a certain time is in controversy to testify that she appeared to be more than eighteen years old at that time.

4. SAME--Declaration of Decedent--Age. Evidence is admissible that a person, dead at the time of trial, stated that she was more than eighteen years of age on a certain date.

5. APPEAL AND ERROR--Evidence--Age--Harmless Error. Where the issue is as to whether a person had attained majority at the time she executed a certain deed, it is not error to admit evidence that she executed a note and mortgage prior to the execution of the deed in controversy, and the case will not be reversed because the contents of the note and mortgage were received in evidence, when it does not appear that their contents could have influenced the jury.

6. EVIDENCE--Age--Affidavits. Where the grantor's mother and sister were dead at the time of trial, it was not error to admit in evidence their affidavits as to the age of the grantor, made long before the execution of the deed whose validity is disputed.

7. EJECTMENT--Burden of Proof--Evidence--Indians. Where the defendant in an action of ejectment is in possession deranging title through a deed from a Creek allottee, and the plaintiff claiming title through a subsequent deed from the same allottee relies for recovery on the fact that the first deed is invalid because of the minority of the allottee at the time of its execution, the burden is upon him to show such minority.

8. APPEAL AND ERROR--Verdict--Evidence. A verdict reasonably supported by the evidence will not be disturbed on appeal.

Robert F. Blair and Peter Diechman, for plaintiff in error.

F. B. Righter and Preston C. West, for defendants in error.

ROSSER, C.

¶1 This was an action by L. A. Bell against Jacob A. Bearman and John S. Bilby to recover certain land. There was a judgment for the defendants, and plaintiff appealed. He filed a brief containing a number of assignments of error, all of which related to matters occuring at the trial, but did not assign as error the overruling of the motion for a new trial. The defendants in error have filed a motion to dismiss the petition in error for the reason of the overruling of the motion for new trial is not assigned as error. Plaintiff in error has filed a response to the motion to dismiss the petition in error, in which he admits that the overruling of the motion for a new trial must be assigned before this court can review the questions raised by the brief, but he asks to be allowed to amend the petition in error by adding the assignment that the court erred in overruling the motion for a new trial. The order overruling the motion for new trial was entered on the 6th day of January, 1911. The application to amend the assignment of error was filed November 15, 1911. At the time the action was tried, the law permitted appeals to be taken at any time within a year, and the law then in force governed as to the time within which an appeal could be taken. Act Feb. 14, 1911 (Sess. Laws 1910-11, p. 35), limiting the time within which appeals can be taken to six months, is not retroactive in its effect, and does not apply to cases tried before it was passed. Rolater v. Strain, 31 Okla. 58, 119 P. 992; Buchanan v. Loving, 35 Okla. 207, 128 P. 499. The plaintiff in error filed his application to amend his assignment of error by adding one with reference to the action of the court in overruling the motion for a new trial before the expiration of a year from the time of overruling of the motion. The assignment presents no new question of law; and the appellees cannot be injured in any way by permitting the amendment, except that they will lose their technical right to have the appeal dismissed. Therefore the assignment of error with reference to overruling the motion will be considered, and the motion to dismiss will be overruled. The land in controversy in this action is in the Creek Nation. Both parties claim under a deed from Beatrice Davis (nee Bean,) who was the original allottee. The defendants, who are also defendants in error, claim through a deed executed by her to the Western Investment Company March 1, 1905. The plaintiff claims through a deed executed by her June 7, 1907. It is his contention that the allottee was a minor less than eighteen years of age at the time she executed the deed to the Western Investment Company March 1, 1905. The question upon which issue was joined is whether or not she was of lawful age at the time she executed the deed to the Western Investment...