Crump v. Lanham

• Decision Date: 29 May 1917
• Docket Number: 4976.
• Citation: 168 P. 43,67 Okla. 33,1917 OK 270
• Parties: CRUMP v. LANHAM et al.
• Court: Oklahoma Supreme Court

168 P. 43

67 Okla. 33, 1917 OK 270

CRUMP v. LANHAM et al.

No. 4976.

Supreme Court of Oklahoma

May 29, 1917

Rehearing Denied Oct. 30, 1917.

Syllabus by the Court.

It is not error for the court to overrule a motion to strike out certain portions of a petition where such parts are not statements of redundant or irrelevant matter, but are germane to the issues.

The court will disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party, and will not reverse a judgment by reason of such error or defect.

In cases of equitable cognizance the judge may call a jury, or consent to one, for the purpose of advising him on questions of fact, and he may adopt or reject their conclusions, as he sees fit, and instructions offered by the parties furnish no ground of error on appeal. It is not only the right, but the duty, of the court in such cases to finally determine all questions of fact as well as of law.

In an equity proceeding this court will weigh the evidence, but the judgment of the trial court will not be set aside where it is not clearly against the weight of the evidence.

Error from District Court, Garvin County; R. McMillan, Judge.

Action by P. G. Lanham against R. L. Garrett and W. B. Crump. Judgment for plaintiff against defendant Crump, and he brings error. Affirmed.

J. B Thompson, of Pauls Valley, for plaintiff in error.

Blanton & Andrews, of Pauls Valley, for defendant in error Lanham.

RAINEY J.

One P G. Lanham instituted this action in the district court of Garvin county, Okl., against R. L. Garrett and W. B. Crump for the cancellation of a note and mortgage in favor of R. L Garrett, and assigned before maturity to W. B. Crump. Plaintiff alleged in substance that the note and mortgage were secured from him by fraud, and were without consideration and void; that the consideration for the execution of said note was a "Little Crater crude oil burner contract," which Garrett, through his agent, W. C. Frost, represented to the plaintiff would cost $5,000, and that Frost pretended and agreed to enter into a partnership with Lanham to purchase such contract for said sum, each party to pay one-half of the purchase price; that the contract was written in the name of Frost, but in truth and in fact Frost paid nothing for his interest therein; that the contract was against public policy and in violation of the laws of the state and of the United States; and that the said W. B. Crump, one of the defendants, took the assignment of the note and mortgage, well knowing the facts and circumstances surrounding the execution thereof, and after he had been warned by the plaintiff, Lanham, not to purchase the same. The defendants, Garrett and Crump, filed separate answers, each admitting the execution of the note and mortgage, and its transfer from Garrett to Crump. Garrett also admitted that the sole consideration for the execution of the note and mortgage was the "Little Crater crude oil burner contract," but denied that the same was in violation of the laws and contrary to public policy, and disclaimed any interest in the controversy. Defendant Crump denied that the note and mortgage were without consideration, and also denied that the contract was contrary to law and public policy, He further alleged that instead of being warned by Lanham not to purchase the note, that he had made inquiry of the said Lanham, and was informed by him that the note was in all respects all right, and was as good a note as he could make, and alleged that the plaintiff was estopped to plead want of consideration for the execution of said note, even if such there were. The plaintiff filed a reply denying all the affirmative allegations in defendant's answer, except as pleaded in his original complaint. When the cause was reached for trial the trial judge impaneled a jury to assist him in determining the issues of fact. On the facts as found by the jury in response to interrogatories propounded by the trial judge, the court rendered its decision in favor of the plaintiff, Lanham, and against defendant Crump, and canceled the note and mortgage. Defendant Crump brings the case here. The defendant Garrett is made a defendant in error, but is not represented in this court. The parties will be hereinafter denominated as in the trial court.

Counsel for Crump argues 15 assignments of error out of the 27 assignments alleged in his petition in error. We will consider these assignments in the order presented in the briefs.

In the first assignment of error it is charged that the court erred in overruling defendant's motion to strike from plaintiff's petition the following language:

"And of the United States and that the company issuing said contracts have been denied the use of the mails by the post office authorities; and that the president of the said company has been arrested charged with the fraudulent use of the mails in carrying on said business; that said business could not be carried on by this plaintiff under the terms of said contract without violating the laws and public policy of the state of Oklahoma and of the United States."

In the absence of statute, the power to strike a pleading or separate part thereof is inherent in the court. Such a motion, like a demurrer, admits the truth of all facts well pleaded for the purpose of the motion, and should be granted only in clear cases. The granting or refusing of a motion to strike is a matter within the sound discretion of the court. 31 Cyc. 616. With reference to the authority of the court to strike out pleadings, section 4770, Rev. Laws of Oklahoma 1910, provides:

"If redundant or irrelevant matter be inserted in any pleading, it may be stricken out, on motion of the party prejudiced thereby. ***"

This section, which is identical with section 4323, Wilson Statutes, was construed by the Supreme Court of Oklahoma Territory in the case of Berry et al. v. Geiser Manufacturing Co., 15 Okl. 364, 85 P. 699, in an opinion by Irwin, Justice. It was there said:

"The ruling of the court striking out certain parts of the petition must depend for its correctness upon two propositions: First, was the matter stricken out redundant or irrelevant? Judge Black, in his Law Dictionary, page 1009, defines 'redundancy' to be: 'The insertion in a pleading of matters foreign, extraneous, and irrelevant to that which it is intended to answer. The fault of introducing superfluous matters into a legal instrument.' The term 'irrelevant' is by the same learned author at page 644 defined to be: 'Not relevant, not relating or applicable to the matter in issue, not supporting the issue.' Bouvier's Law Dictionary, vol. 2, p. 433, defines the term 'redundancy' as: 'Matter introduced in an answer, or pleading, which is foreign to the bill or articles.' Now in the case at bar, the question is: Were the matters stricken out foreign to the case? Were they immaterial, or extraneous to the issue involved? If so, the decision of the trial court was right, if not, it was wrong."

If the motion had been directed solely at that part of the paragraph above quoted, which charged that the president of the company had been arrested, we think it should have been sustained. But the principal allegations contained in that part of the petition challenged by the motion to strike were in our opinion germane to the action as pleaded. Evidence supporting the major part of the allegations sought to be stricken, if offered, would have been relevant and material to the issues. If in fact, as alleged, the contract was contrary to public policy and was in violation of the laws of the state and federal governments, proof of such fact would have had an effective bearing on the truth of the facts in dispute. It is urged, however, that the plaintiff did not prove all of these allegations. At the time of passing on the motion in this, as in similar cases, the court could not anticipate what the proof would be, and in determining as to whether or not the motion to strike should have been sustained we are governed by not what in fact was proven, but what properly could have been proven under the pleadings. The court did not err in overruling the motion.

Counsel for defendant Crump, in the second assignment of error, contends that the court erred in overruling his motion to make the petition of the plaintiff in error more definite and certain by attaching a copy of the Little Crater crude oil burner contract, and in support of this contention cites section 4769, Rev. Laws of Oklahoma 1910, which reads as follows:

"If the action, counterclaim or set-off be founded on account or on a note, bill, or other written instrument as evidence of indebtedness, a copy thereof must be attached thereto and filed with the pleading."

The cause of action was not solely founded upon...