Dill v. Malot
| Decision Date | 28 August 1917 |
| Docket Number | 7910. |
| Citation | 167 P. 219,66 Okla. 74,1917 OK 436 |
| Parties | DILL v. MALOT. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Where the answer admits the execution of the note sued upon and pleads payment and set-off, it is not necessary to the recovery by the plaintiff that the note sued upon be introduced in evidence.
While amendments are favored in the furtherance of justice, the granting or refusal of permission to amend rests largely within the discretion of the trial court, and it is not an abuse of such discretion to refuse to permit, after trial is begun, an amendment of an answer, which would substantially change the defense.
In a case tried to the court, where the evidence is in conflict the judgment of the court will not be disturbed if there is any evidence reasonably tending to support the judgment.
Commissioners' Opinion, Division No. 1. Error from District Court, Okfuskee County; Geo. C. Crump, Judge.
Action by Dona C. Malot against W. H. Dill. Judgment for plaintiff and defendant brings error. Affirmed.
B. B Blakeney and J. H. Maxey, Jr., both of Tulsa, for plaintiff in error.
J. B Patterson, of Okemah, for defendant in error.
This is an action brought by the defendant in error against plaintiff in error to recover upon a promissory note for $700 executed by W. H. Dill and H. G. Malot, the husband of defendant in error, which said note was indorsed by H. G. Malot as follows: Hereinafter the parties will be styled as they were in the trial court.
The petition avers that on the ______ day of ______, 1914, and before maturity of said note, for a valuable consideration, and in due course of trade, said H. G. Malot indorsed, transferred and delivered said note to this plaintiff, and this plaintiff is now the legal owner and holder of said note, that there is justly due and owing on said note the full principal sum thereof, together with interest at the rate of 6 per cent. per annum from the 1st day of January, 1916, and that she is entitled to recover of and from the defendant said sum of money. The defendant filed an unverified answer, denying each and every material allegation of said petition, except such as are hereinafter specifically admitted, and admitted the execution of the note described in plaintiff's petition, and the delivery of the note to H. G. Malot, but alleges that same has been fully paid, that plaintiff had full knowledge at the time she became the holder of said note that same was fully paid, and denies that plaintiff is the holder of said note for a valuable consideration, but alleges that she found said note among the papers of H. G. Malot, and that the same was never delivered to plaintiff by H. G. Malot. For further answer and counterclaim defendant alleges and says that on the 5th day of June, 1912, for value, the plaintiff executed and delivered to defendant her promissory note of that date, together with H. G. Malot, in the sum of $300, with interest at the rate of 8 per cent. per annum from the date thereof, together with a reasonable attorney's fee in case said note was placed in the hands of an attorney for collection, and alleges that there is now due and unpaid on said note the said sum of $300, and interest, together with an attorney's fee of $50. Defendant further answering, and for his further counterclaim, alleges and says: That on the 3d day of March, 1913, plaintiff, being indebted to defendant in the sum of $335, made, executed, and delivered, together with H. G. Malot, her promissory note in the sum of $335, with interest thereon at the rate of 6 per cent. per annum from that date, and a reasonable attorney's fee in case said note should be placed in the hands of an attorney for collection. Copies of said notes are attached as exhibits to said answer.
The plaintiff filed a motion to strike the counterclaim, which motion was overruled by the court, after which plaintiff filed a reply denying the allegations of plaintiff's answer, and alleged that she was the owner and holder of the note sued upon, and had received the same for a valuable consideration, and denied the execution of the notes...
To continue reading
Request your trial