Bradford v. Cline

• Decision Date: 08 January 1903
• Citation: 1903 OK 2,72 P. 369,12 Okla. 339
• Parties: W. A. BRADFORD, JR., AND L. E. WALKER v. D. L. CLINE, J. A. S. GRAVES, L. E. WALKER,
• Court: Oklahoma Supreme Court

1903 OK 2

72 P. 369

12 Okla. 339

W. A. BRADFORD, JR., AND L. E. WALKER v. D. L. CLINE, J. A. S. GRAVES, L. E. WALKER,

Supreme Court of Oklahoma

Decided: January 8, 1903

Syllabus

¶0 1. REPORT OF REFEREE.

Where the report of a referee appointed by the court to report law and facts in the case, is filed after the time designated in his order of appointment, and the party against whom judgment is rendered appears in court at or after the filing of such report and files a motion for a new trial, and in such motion makes no objection to the filing of such report at that time, and does not raise the question of such report being out of time, until after judgment is rendered on said report by the court, it will be presumed that such objection is waived.

2. INSUFFICIENCY OF EVIDENCE IN THE TRIAL COURT.

This court will not reverse the decision of the trial court upon a question of fact, where the record as presented to this court does not purport to contain all the evidence heard in the trial court.

On the 28th day of April, 1898, D. L. Cline filed his petition in the district court of Grant county, Oklahoma, against J. D. Alexander and W. A. Bradford, Jr., L. E. Walker, and J. A. S. Graves, co-partners, doing business under the firm name and style of W. A. Bradford, Jr., and Co., L. E. Walker, as receiver of the Hutchinson and Southern railroad company, the Hutchinson and Southern railway company, a corporation, W. A. Bradford, Jr., L. E. Walker, and J. A. S. Graves. After several motions had been sustained and confessed to the petition, thereafter, on the 20th day of February, 1899, plaintiff filed his second amended petition, alleging an indebtedness against all the defendants and claiming judgment in the sum of $ 1,746.10, with interest at seven per cent. from March 1, 1898, against all the defendants. All of the defendants except J. D. Alexander filed an answer of general denial, and also filed an answer denying partnership. On the 18th day of December, 1899, this cause was by the district court of Grant county referred to C. M. Keiger, as sole referee, to hear the evidence, and report his finding of fact and conclusions of law, at the next regular term of the court. Keiger, on the same day, towit, the 18th day of December, 1899, qualified as referee, and on the 15th, 16th and 17th, days of January, 1900, all of the parties appearing except J. D. Alexander, the evidence was introduced, and the case orally argued before the referee, and some time after that and prior to the May term, written briefs were filed by plaintiff and defendant, except Alexander. The next regular term of the court following the December term in Grant county, was held during the month of May, 1900. No report was made by the referee at that term. On the 17th day of December, 1900, the same being the first day of the December term, 1900, of the court of Grant county, the report of the referee was filed. The said report recommends that a judgment be rendered in favor of the plaintiff and against W. A. Bradford and Company, on plaintiff's first cause of action, for $ 1,251.06, and on his tenth cause of action for $ 5.59; making a total of $ 1, 236.65, and finds in favor of all the other defendants, except Alexander. No extension of time for making the report of the referee was ever granted by the court, and the record does not show that any time was allowed by the referee to prepare exceptions to his report. On the 18th day of December, 1900, W. A. Bradford, Jr., and L. E. Walker, composing the firm of W. A. Bradford, Jr., & Co., filed their motion in writing for a new trial, which motion was by the court overruled, to which the defendants excepted. On the 19th day of December, 1900, C. M. Keiger, referee filed his motion to have the report of the referee confirmed, and on the same day plaintiff filed his motion to have the report confirmed, and also for judgment on the report. And on the 21st day of December 1900, the court overruled the motion of Bradford and Walker, and sustained the motions of the referee, and the plaintiff, and rendered judgment against W. A. Bradford and L. E. Walker, for $ 1,389.15, and costs. On the 22nd day of December, 1900, the plaintiffs in error, Bradford and Walker again filed a motion for a new trial, and on the same day filed a motion to vacate the judgment rendered on the 21st, and to strike the referee's report from the files; this latter motion to vacate the judgment being the only motion in which any objection is raised to the time in which the referee had filed his report. Thereafter, and on the 6th day of April 1901, the motion of plaintiffs in error for a new trial, and the motion to vacate the judgment and to strike the report of the referee from the files, were presented to the court, and both overruled, to which the plaintiffs in error duly excepted, and assigned as error, and brought the case here for review. Affirmed.

Error from the District Court of Grant County; before John L. McAtee, Trial Judge.

J. W. Rose and D. S. Dill, for plaintiffs in error.

J. D. Houston, H. E. Asp and A. E. Helm, for defendants in error.

IRWIN, J.:

¶1 In this case the plaintiffs in error make five assignments of error. The first, second, fourth and fifth are based upon the refusal of the court to grant a new trial, and in the argument the counsel base these assignments upon ten grounds; all the said grounds except the first and fourth depend for a decision upon the facts developed by the proof. These facts, or in fact, any facts or evidence upon which the referee or the trial court acted are not before this court. The certificate attached to the case-made is as follows:

"The above and foregoing case-made contains full, true and complete copies of all pleadings, motions, orders, judgments, and matters and the final report of the referee, and all proceedings had in said cause, except the written and oral evidence introduced before the referee on the trial of said cause, before him, which written and oral evidence was not filed in the office of the clerk of the district court of Grant county, Oklahoma Territory, and the above and foregoing case-made contains full, true and complete copies of all papers and all proceedings had in the above case except the evidence as hereinbefore stated.

"Signed, J.

W. ROSE AND D. S. DILL.

"Attys. for W. A. Bradford, Jr. and L. E. Walker, partners under the firm name of W. A. Bradford, Jr. & Company."

¶2 By this it will be seen that the case-made does not purport or pretend to give the evidence or any part of it, and this court has repeatedly held that it will not disturb any finding of fact in the trial court, where the evidence is not preserved in a bill of exceptions, or case-made and presented to this court.

¶3 In Grand Lodge of Ancient Order of United Workmen v. Oleva Furman, 6 Okla. 649, and also in the same volume p. 671 in the case of the Grand Lodge of Ancient Order of United Workmen v. Mary Edmonson, this court says:

"Evidence--Sufficiency of--This court will not reverse a judgment upon the ground that it is not supported by sufficient evidence when the record filed herein does not purport to contain all of the evidence introduced at the trial of the cause."

¶4 Board of Commissioners of Washita County v. F. M. Hubble, 8 Okla. 169:

"Review.--Case-made must contain entire record. Before this court will consider the record and review the evidence, based upon the ground that the findings of the court and judgment thereon are contrary to the evidence, or are not sustained by sufficient evidence, it must affirmatively appear in the case-made itself that it contains all the evidence, and a mere statement or recital to that effect in the certificate of the trial judge is not sufficient."

¶5 And the same doctrine is held by the Kansas supreme court in the case of Glover v. Lawler et al, 18 P. 718, where the court says:

"As the record brought here does not show that it embraces all the evidence upon which the findings and judgments were based, we cannot say that they are not sufficiently supported."

¶6 In the case of Grand Lodge v. Furman, supra, the court cites with approval the following language:

"Where the record brought to the circuit court does not purport to contain all the evidence introduced on the trial in the court below, the supreme court cannot tell whether the findings and judgment of the court below are sustained by sufficient evidence or not."

¶7 Authorities there cited in support of this doctrine are: Hill v. First Nat....