Bennett v. Moore, Case Number: 8239

• Court: Supreme Court of Oklahoma
• Writing for the Court: DAVIS, C.
• Citation: 62 Okla. 159,1917 OK 70,162 P. 707
• Parties: BENNETT v. MOORE.
• Decision Date: 09 January 1917
• Docket Number: Case Number: 8239

1917 OK 70
162 P. 707
62 Okla. 159

BENNETT
v.
MOORE.

Case Number: 8239

Supreme Court of Oklahoma

Decided: January 9, 1917

Syllabus

¶0 1. Jury--Jury Trial--Right to. Issues of fact arising in an action for the recovery of money only must be tried to a jury, unless a jury trial is waived or a reference ordered as provided by statute.

2. Appeal and Error--Petition in Error--Assignments of Error. To be availing the petition in error should, in an orderly and specific manner, clearly point out the error or errors complained of and sought to be reviewed, and errors occurring during the trial cannot be considered by the Supreme Court unless the ruling of the trial court on the motion for a new trial is assigned as error in the petition in error.

3. Appeal and Error--Case-Made--Extension of Time. The recital in a case-made, duly certified to by the judge, that an order was made extending the time in which to prepare and serve a case, where the substance of the order is contained in the case-made, is sufficient, and motion to dismiss because it does not affirmatively appear in the case-made that such order of extension has been recorded upon the journal will be overruled.

Leahy & McDonald, for plaintiff in error.

A. M. Widdows, for defendant in error.

DAVIS, C.

¶1 Herein the parties will be spoken of as they stood in the court below. Plaintiff, Moore, sued defendant, Bennett, for $ 500 for grazing, herding, and feeding certain domestic animals belonging to defendant under employment by defendant so to do. Said domestic animals consisted of hogs, horses, mules, cattle, etc., and said services were performed by plaintiff for defendant under contract from November 20, 1914, to September 30, 1915. Plaintiff demanded said recompense for his said services, but defendant failed, neglected, and refused to pay the same. Plaintiff claimed and asked for a lien on 62 head of hogs, 200 head of cattle, 12 head of horses, six cows, and mules, under our statutes in such cases made and provided. The defendant''s answer was a general denial simon pure and nothing more. The day of trial finally came, as sometimes happens under the Code of Civil Procedure of this state. Defendant strenuously objected to the cause being tried to a jury, and when his objection was duly overruled by the court, which not infrequently occurs, and this notwithstanding the defendant''s insistence that this case was a proceeding in equity, and that there was no cause for a jury, and that a jury...