Clark v. Bank of Hennessey

• Decision Date: 03 September 1904
• Citation: 1904 OK 88,14 Okla. 572,79 P. 217
• Parties: GEORGE A. CLARK, JOHN SMITH, M. W. CHAMNESS AND JOHN A. RATLIFF v. BANK OF HENNESSEY, a Corporation.
• Court: Oklahoma Supreme Court

1904 OK 88

79 P. 217

14 Okla. 572

GEORGE A. CLARK, JOHN SMITH, M. W. CHAMNESS AND JOHN A. RATLIFF v. BANK OF HENNESSEY, a Corporation.

Supreme Court of Oklahoma

Decided: September 3, 1904

Syllabus

¶0 1. REFEREE'S REPORT--District Court May Extend Time for Filing. Where the district court, by an order appointing a referee, limits the time within which he shall file his report, the court may for cause, and within the time limited, extend the time within which such report may be filed.

2. DISTRICT COURT--Power of Amendment. District courts in this Territory have the power, while a case is pending and before final judgment, to correct and amend the record or any order or proceeding had in such case, to conform to the facts by a nunc pro tunc order, and are not confined to any one class of evidence, but may proceed upon satisfactory evidence.

3. REFEREE'S REPORT--Motion to Strike From Files. It is not error for the trial court to overrule a motion to strike the referee's report from the files for the reason alone that the defeated party was not notified of the finding and conclusions of the referee, where it is not shown that any substantial right was prejudiced thereby.

4. BOND--Omission of Principal's Name. The omission of the name of the principal, as one of the signers of a bank cashier's bond, even where his name appears in the body of the bond as principal, is a mere technical defect, and will not release the sureties, except in case where the sureties sign upon conditions known to the obligee, that the bond is not to take effect until signed by the principal.

STATEMENT OF FACTS.

This is an action commenced in the district court of Kingfisher county by the defendant in error against plaintiffs in error, as sureties on a bond of Homer L. Chamness, as cashier of the Bank of Hennessey. Plaintiffs in error filed separate answers to the petition, containing, first, a general denial; second, that at the time the bond was presented to the defendants for their signatures the name of Homer L. Chamness, as principal, was written in the body of the bond, and the defendants signed the bond upon the express condition that H. L. Chamness should sign it before delivering it to the obligee. After issues joined, on the 27th day of September, 1901, the case was referred to J. C. Robberts, as referee, with power to find on questions of law and of fact, and to report at the next term of court. Trial was had before the referee on the 10th day of February, 1903, The referee made the following findings:

"1. That the plaintiff was duly incorporated under the laws of the Territory of Oklahoma, and authorized to carry on a general banking business as alleged in its petition.

"2. That Homer L. Chamness, the person named as principal in the bond sued on, was duly elected and acting cashier of said bank, plaintiff, at the times alleged in said petition.

"3. That on the 15th day of March, 1899, the defendants executed the bond sued on, and delivered the same, to the said Homer L. Chamness.

"4. That the body of said bond had written therein, at the time each of said defendants signed the same, the name of Homer L. Chamness as principal.

"5. That each and all of said defendants knew that the name of said Chamness was written in the body of said bond at the time they signed the same and delivered it to said Chamness.

"6. That at the time defendants signed and delivered said bond to said Chamness, they told said Chamness that they signed said bond upon the condition and understanding that said Chamness was also to sign the same as principal before the delivery thereof.

"8. The plaintiff introduced evidence tending to show that the defendants were present at the time Chamness delivered the bond to the bank. All of the defendants denied that fact. Upon that proposition I find that none of the defendants were present at the time of the delivery of said bond to the plaintiff.

"9. That the conditions upon which said bond was signed by said defendants was not communicated to the plaintiff, nor any of its officers, and the plaintiff had no notice nor knowledge of the conditions upon which the said defendants signed said bond, other or different than such notice would be implied by the fact that the name of Chamness was written in the body of said bond as principal, and not signed by him.

"10. That on the 24th day of March, 1899, each and all of said defendants subscribed and was qualified to the value of the property owned by them respectively; and said qualification was attached to the bond at the time the same was signed by the defendant.

"11. The defendants offered no evidence tending to show that at the time they were qualified as to the value of their property they mentioned the condition upon which they had signed said bond, nor was any evidence offered tending to show that objections were made at that time by either of them to the fact that Chamness had not signed the bond as principal.

"12. Said bond was delivered to the plaintiff by Homer L. Chamness on the 24th day of March, 1899, after said defendants had been qualified to the same, and at the time of the delivery of said bond to plaintiff it had not been signed by Chamness, and plaintiff had no notice of the conditions upon which said bond had been signed by defendants, other than such notice as would be implied from the conditions of the bond at the time it was delivered."

On the first day of October, 1902, a term of court having intervened since the appointment of the referee, the referee filed his report. On the 23rd day of October, 1902, plaintiffs in error filed their motion to strike the report of the referee from the files. On the 9th day of March, 1903, the defendant in error filed its motion for a nunc pro tunc order, showing that at the April, 1902 term of said court, the court extended the time in which the referee should report until the next regular term thereof.

Affidavits and evidence were offered in support of the application, including an entry upon the judge's trial docket, and the record discloses the following statement of the court:

"The court states that he has a distinct recollection of Mr. Robberts, the referee, stating to him that he hadn't entirely prepared his report to file, and that he wanted additional time. The recollection of the court is that he asked that the report be deferred until the next term of court and the court stated to him, 'Very well, you can have the time,' meaning and intending to have it continued for the term. The court at that time made a minute on his docket, which seems to read: 'Passed for report of referee,' but the true entry on the docket would indicate the order made by the court and intended by him should have been: 'Continued for the term.'"

Thereupon the court overruled plaintiffs in error's motion to vacate and set aside the report of the referee, to which they excepted, and the court made the following order:

(After title of cause).

"And now on this 9th day of March, A. D., 1903, this cause came regularly on to be heard on the motion and application of J. C. Robberts, referee, and said plaintiff, for a nunc pro tunc order showing that on the day of April, A. D., 1902, at the April, 1902, term of said court, the court extended the time in which the referee should report, until the next regular term thereof. Said plaintiffs appearing by their attorneys, Lee M. Gray and Stevens & Miller, and the defendants appearing by their attorneys, P. S. Nagle, M. J. Kane and W. A. McCartney, and the court after hearing the evidence in support of said motion, the argument of counsel thereon, and being fully advised in the premises, finds that the court on the day of April, 1902, at the April, 1902 term of said court, did make an order extending the time in which the referee in said cause should report, until the next regular term thereof; that by inadvertence and mistake said order was not entered on the journals of said court, and that an order ought to be now entered as of and for the said day of April, A. D., 1902, as follows:

"'And now on this day of April, A. D., 1902, this cause came regularly on to be heard upon the application of the Hon. J. C. Robberts, referee, for an extension of time in which to file his report as such referee, and the court after being fully advised in the premises, finds that the time formerly allowed by the court to said referee in which to make his report is insufficient, and ought to be extended until the next regular term of this court. It is therefore by the court considered, ordered and adjudged that the time for making and filing of the report of the referee in said cause is hereby extended until the next regular term of said court.'

"It is therefore by the court considered, ordered and adjudged that there be entered at this time upon the journal of this court, the following order, to wit:

"'And now on this day of April, A. D., 1902, this cause came on to be heard upon the application of Hon. J. C. Robberts, referee, for an extension of time in which to file his report as such referee, and the court, after being fully advised in the premises, finds that the time formerly allowed by the court to said referee in which to make his report is insufficient and ought to be extended until the next regular term of this court. It is therefore by the court, considered, ordered and adjudged that the time for making and filing of the report of the referee in said cause is hereby extended until the next regular term of said court.'

"And that said order be here entered as of and for the said day of April, A. D., 1902, to all of which the defendants at the time objected and excepted, and object and except."

On the 13th day of March, 1903, plaintiffs in error filed their motion for judgment on the findings of fact of the referee, notwithstanding the recommendations of the referee; and on the 14th day of March, defendant in error moved the court for judgment upon the findings and report of the referee. On the 23rd...