Bilby v. Gibson
| Decision Date | 20 November 1928 |
| Docket Number | Case Number: 17377 |
| Citation | 271 P. 1026,1928 OK 658,133 Okla. 196 |
| Parties | BILBY et al. v. GIBSON et al. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error--Assignment of Errors--Order Overruling Motion to Quash Summons not "Error Occurring at Trial"--Necessity for Presentation in Motion for New Trial.
An order overruling a motion to quash summons is not an error of law occurring at the trial, and cannot be reviewed under the assignment of errors, "Errors of law occurring at the trial," and unless the same is properly presented to the trial court in a motion for a new trial, it cannot be reviewed on appeal.
2. Same--Joint Assignment of Error Good as to All Joining in It or Good as to None.
A joint assignment of error must be good as to all who join in it or it will be good as to none.
3. Contracts--Presumption that Obligations Appearing to Be Joint Are Joint and Several.
The statutory provision, section 5062, C. O. S. 1921, "Where all the parties who unite in a promise receive some benefit from the consideration, whether past or present, their promise is presumed to be joint and several," will be held to modify the common-law rule for construing obligations that appear to be joint to the extent that courts will presume them to be joint and several, unless that presumption, is overcome by evidence, or the terms of the obligation itself exclude such presumption.
4. Evidence--Necessity for Opinion Evidence as to Value of Layman's Services in Settling Lawsuit.
In a case involving the issue and question of the reasonable value of personal services rendered in settling a pending lawsuit by one not an attorney at law, there should be introduced some special or opinion evidence as to the value of such or similar services, by witness or witnesses familiar with their value so as to aid and afford some guide to the jury in arriving at a verdict.
5. Trial--Error to Instruct on Issues Unsupported by Evidence.
It is error to instruct the jury upon a theory or issue not supported by evidence, where such instruction is likely to mislead the jury.
6. Judgment not Sustained.
Record examined, and held, insufficient to sustain the judgment.
Robson & Moreland, for plaintiffs in error.
Chas. West, for defendants in error.
¶1 Kelly F. Gibson, defendant in error, commenced this action in the district court of Tulsa county, wherein he, as plaintiff, sought to recover of and from the defendants, J. Ed Bilby, N. V. Bilby, and R.I. Bilby, the sum of $ 15,000 for alleged services rendered by him for the defendants. The petition filed by plaintiff stated, in part and in substance, that on the 24th day of April, 1920, the defendants R.I. Bilby and N. V. Bilby were under a binding, legal obligation to assist with their means in satisfying the legal debts of J. Ed Bilby; that there was then pending in the state of Kansas a suit against J. Ed Bilby upon certain of his legal obligations, notes and mortgages, involving the sum of $ 265,000; that the defendants employed plaintiff to serve them in the settlement, compromise and disposition of such action; that the employment was oral, but was upon the terms that he, plaintiff, was to be paid a reasonable sum for his services in settling said suit; that he was given a maximum limit of settlement and authorized to use in such settlement all the real and personal property sought to be foreclosed and the sum of $ 25,000, the latter to be furnished by the defendants N. V. and R.I. Bilby; that, under the terms of his employment, the greater would be his services and the larger necessarily the amount that he would earn in settlement, the lower the settlement could be made within the terms of said maximum amount of settlement. Upon said terms plaintiff undertook said settlement as the employee and agent of defendants and made and effectuated an agreement for settlement which was consummated and carried into effect within 90 days, and thereupon plaintiff became due a reasonable amount, not less than $ 15,000, for his services; that said settlement was made upon terms considerably within the fixed limits, and was brought about and consummated by the direct efforts of plaintiff under said employment, and he saved to the defendants the whole of the said sum of $ 25,000, as well as a large part of the personal property, at least $ 5,000 thereof, by them offered for said settlement; that because the employment of said plaintiff therein was to be paid for only in contingency of success, it was understood and agreed that his compensation was to be many times larger than if it had been paid for by the day or week, and it was understood and agreed that his compensation was to be made in accordance with the size of the project and the relative proportion that the settlement bore to the indebtedness owed; that the entire amount of money and property accepted by plaintiffs and interveners in said suit in settlement of the same did not exceed the sum of $ 90,000, and plaintiff was able to settle said indebtedness for practically one-third thereof.
¶2 Plaintiff further alleged a demand for payment of the services which was refused, and he prayed judgment for $ 15,000 with interest. Personal service of summons was had upon the defendant J. Ed. Bilby, in Tulsa county, and upon N. V. Bilby, in Hughes county. The defendant N. V. Bilby, who appears to have been a resident of Hughes county, Okla., at the time of the service of summons upon him, filed a motion to quash, set aside and vacate the pretended service of summons, giving as grounds and the reason therefor:
"That the same was not issued, served and returned according to law, and is insufficient to confer jurisdiction on this court,"
--which motion to quash was overruled, and he filed a motion to make plaintiff's petition more definite and certain, also a motion to strike certain portions thereof, and later a demurrer was presented to the petition, all of which were overruled and excepted to, whereupon the defendant N. V. Bilby filed an answer in the nature of a general denial. The defendant R.I. Bilby, being a nonresident of Oklahoma, entered his appearance in the cause and filed an answer in the nature of a general denial. The defendant J. Ed Bilby filed an answer in the cause, admitting that the plaintiff effected a settlement and compromise of the suit pending against him in the state of Kansas, but specifically denied that the plaintiff was acting as agent for him, or under any contract of employment with him, and alleged that the services rendered by the plaintiff were at the request and on behalf of the other defendants.
¶3 Upon a trial of the cause a verdict was rendered in favor of the plaintiff, Gibson, against N. V. and R.I. Bilby, for the sum of $ 6,000, with interest thereon, and a verdict in favor of the defendant J. Ed Bilby absolving him of liability. Judgment was entered in accord with the verdict, from which N. V. and R.I. Bilby bring this appeal, and allege and set forth in their joint petition in error several grounds for reversal.
¶4 The first assignment of error argued and presented in the brief of plaintiffs in error, No. 11, in their petition in error, relates to the order of the court overruling the motion of the defendant N. V. Bilby to quash the summons. We will consider such assignment in connection with their seventh assignment of error in the petition in error, which is:
"That the court was without jurisdiction to render a judgment in favor of plaintiff against N. V. and R.I. Bilby or either of them."
¶5 It was the contention of the plaintiffs in error that the action was a joint one, and that since the jury found in favor of the defendant J. Ed Bilby, the action could not then be maintained in Tulsa county as against the defendant N. V. Bilby, who was a resident of Hughes county, Okla., and that no judgment could be entered upon the verdict as against N. V. and R.I. Bilby because the action was a joint one. The plaintiffs in error rely upon the holding in the case of Fisher v. Fiske, 96 Okla. 36, 219 P. 683, the syllabus of which is as follows:
¶6 If the motion of the defendant N. V. Bilby to quash the summons was meritorious and sufficient in form to raise the question of the jurisdiction of the court on account of his being a nonresident, the error, if any, in overruling such motion is not properly before this court because he failed to present the same in his motion for new trial. He assumes that the assignment, "Errors of law occurring at the trial and excepted to by defendant," in the motion for new trial and in petition in error is sufficient to cover and include the order and ruling of the court in overruling his motion to quash the summons, but such is not the rule, and the same is not sufficient under the holding of this court in the following cases: Sarlls v. Hawk, 46 Okla. 343, 148 P. 1030; Akin v. Bonfils, 47 Okla. 492, 150 P. 194; Baker v. Citizens' State Bank, 74 Okla. 182, 177 P. 568; First Nat. Bank v. Farmers' State Guaranty Bank, 62 Okla. 30, 161 P. 1063; W. T. Rawleigh Co. v. Riggs, 123 Okla. 42, 252 P. 428; C., R.I. & P. Ry. Co. v. Warren, 132 Okla. 107, 269 P. 368; Clark v. Herbert, 132 Okla. 272, 270 P. 329; which hold, in effect, that an order overruling such a motion cannot be reviewed under the assignment of error, "Errors of law occurring at the trial," and unless presented to the trial court in motion for new trial and assigned as...
To continue reading
Request your trial