Chi., R. I. & P. Ry. Co. v. Reese

• Decision Date: 12 July 1910
• Docket Number: Case Number: 394
• Citation: 110 P. 1071,1910 OK 199,26 Okla. 613
• Parties: CHICAGO, R. I. & P. RY. CO. v. REESE.
• Court: Oklahoma Supreme Court

1910 OK 199

110 P. 1071

26 Okla. 613

CHICAGO, R. I. & P. RY. CO. v. REESE.

Case Number: 394

Supreme Court of Oklahoma

Decided: July 12, 1910

C. O. Blake, Thos. R. Beman, Foshee & Brunson, and J. G. Ralls, for plaintiff in error.

D. H. Linebaugh, for defendant in error.

DUNN, C. J.

¶1 This case presents error from the county court of Coal county and comes to us on a transcript. Defendant in error, who will hereafter be called plaintiff, filed his petition in the county court of Coal county against plaintiff in error as defendant on June 25, 1908, and had a summons providing for answer by defendant on or before the 21st day of July, 1908. On July 22, 1908, defendant having failed to plead in any manner within the time given, counsel for plaintiff filed a motion for judgment by default and for the court to assess the damages. The trial of the case was accordingly taken up, and the court heard the evidence of plaintiff, and rendered judgment thereon in the sum of $965. After the case was called for trial, counsel for defendant appeared and asked leave to file a motion requiring plaintiff to make his petition more definite and certain, and to separately state and number the causes of action, together with the date of each and the amount of damages claimed for each item. This motion bears indorsement showing that the same was offered at 2:40 p. m., but which the court "refused to file for the reason that it was offered during the trial and before judgment." Also that it was "filed at 4 p. m. after judgment was rendered by the court." To these proceedings counsel for defendant saved their exceptions, and filed a motion to set aside and vacate the judgment rendered along with a motion for a new trial, both of which were denied, and the case has been brought to this court. The facts involved are for all practical purposes identical with those in the case of Chicago, Rock Island & Pacific Railway Company v. Eastham (an opinion prepared and delivered at this term of court) 110 Pac. 887. The law as declared in that case is entirely applicable to the facts in the case at bar, and upon the authority of that case this judgment must be reversed.

¶2 Counsel for defendant took time in open court to prepare a case-made and at the same time prepared and had allowed a bill of exceptions, and, instead of bringing the case to this court by case-made, elected to bring the same on transcript, and this action on their part is made a ground for a motion, to dismiss the appeal....