Dunham v. Holloway
| Decision Date | 27 July 1895 |
| Citation | 41 P. 140,3 Okla. 244,1895 OK 33 |
| Parties | JAMES H. DUNHAM et. al. v. J. R. HOLLOWAY. |
| Court | Oklahoma Supreme Court |
Petition for a Rehearing.
¶0 1. INCOMPETENT TESTIMONY--Waiver of Error. Where no exception is taken to the introduction of incompetent testimony, error is waived.
2. PRACTICE--Exception to Instructions. Where the court gives a series of instructions, each of which is separately stated, and the record of the exception reads as follows: "to the giving of which instructions, and each of them, the defendant at the time excepted," held, an exception is properly saved for review by the, supreme court.
3. COMPLAINT--Sufficiency of Prayer to Sustain Verdict. Where an itemized account, showing the dates when the several items were purchased, and the time when such purchases were to be paid for, is attached to, and made a part of, the complaint, and the prayer of the complaint asks for judgment for the principal sum, together with interest thereon, according as the same may appear to be due from the items of said exhibit, held, that such prayer is sufficient to support a verdict for the principal sum, and interest as computed from the date when payment for each of the several items, as set forth in the exhibit, became due, to the date of the verdict.
4. PLEADING STATUTES OF ANOTHER STATE. If a party to an action wishes to avail himself of the law of another state, which fixes the rate of interest, upon a contract, at a different rate than that fixed by the laws of the territory, he must plead such statute.
5. SUFFICIENCY OF EVIDENCE TO SUSTAIN A VERDICT. Where a party sues out a writ of attachment and in his affidavit therefor sets forth two grounds for said writ, and evidence is offered in support of both grounds and the jury finds against the defendant upon each of the issues so joined, and such verdict is approved by the trial judge, this court will not disturb the verdict for the reason that the same is not supported by the evidence.
Amos Green & Son and C. A. Leland, for petitioner.
J. W. Johnson and Rogers & Howard, contra.
¶1 A petition for rehearing has been filed in this case, and the attention of this court has been properly called to the fact that in the consideration formerly given to the matter important testimony contained in the record was overlooked. The statement of facts and assignments of error will not again be fully set out, but commented upon only sufficiently for a proper understanding of the questions discussed. In the former opinion, we held that the trial court was in error in not sustaining the objections of defendant below to the introduction of the depositions of James H. Dunham, John T. Dutcher, Henry Walker and Edwin Davis; that if such depositions had been rightfully excluded, no evidence would appear in the record tending to establish the validity of the amount of the debt sued upon. In this conclusion we erred. In the deposition of Bradley, agent of plaintiff, is found testimony which shows that Bradley, acting for plaintiff below, presented the account of said plaintiff to Holloway, demanded payment therefor, and that the amount of the claim was agreed to by Holloway, and payment refused simply upon the ground of inability to meet the obligation. This testimony is uncontradicted. It appears from the record that Holloway, except by his answer, raised no issue upon the question of indebtedness. The depositions which were by the court below improperly admitted, only go to the question of indebtedness. They nowhere bear upon the issue raised under the attachment proceeding. Consequently, the evidence contained in such depositions was cumulative, and, there being sufficient without them to prove the indebtedness, the ruling of the court below did not prejudice the rights of Holloway. We will now take up the discussion of the assignments of error, not noticed in the former opinion, which are as follows:
¶2 I. At the trial, upon objection, the court refused to allow certain cross-interrogatories and answers thereto in depositions to be read to the jury. Witnesses were interrogated by the plaintiff below relative to the residence and whereabouts of defendant and his family, at and about the time of the commencement of the attachment suit. The witnesses testified in effect that Holloway and two of his sons left Fort Worth, Texas, about the middle of September, 1891, and that the other members of his family, consisting of his wife and daughters, remained at and continued to reside in Fort Worth for some time after that date. By cross-interrogatories the witnesses were asked if Mr. Holloway stated when he left Fort Worth in September, 1891, that he intended to make Oklahoma City his home. Which question was answered in the affirmative. This answer was permitted to go to the jury. The witnesses were then asked if they had heard members of Mr. Holloway's family make statements as to their intention of moving to Oklahoma, which questions were also answered in the affirmative. This testimony was excluded, and, we think, correctly. The question of the residence of Mr. Holloway alone was in issue. Proof of the residence of the family was admissible as a circumstance affecting the residence of Mr. Holloway. Beyond this it was not competent for any purpose. Statements made by members of the family as to their intention of changing their abode, were clearly inadmissible, because irrelevant.
¶3 Upon an examination of the record we find that counsel's assignment of error based upon the refusal of the court to allow witnesses to testify as to what Holloway said to them in connection with his efforts to procure a house at Oklahoma City, is not well taken. One of the witnesses was asked to detail the conversation, and an objection to the testimony was offered, and, without ruling upon such objection, the court stated that the fact of his renting a house could be proved. No exception was taken to the statement of the court limiting the proof, and if there is error it was waived.
¶4 II. Complaint is made of the instructions given by the court to the jury. The attachment was based upon two grounds, to-wit: That Holloway was disposing of his property with the fraudulent intent to cheat, hinder and delay his creditors, and that he was a non-resident of the Territory of Oklahoma. The instructions of the court relative to the non-residence of Holloway are particularly complained of. After the instructions were prepared, they were numbered and signed by the judge, and following this there appears in the record this entry: "To the giving of which instructions and each of them the defendant at the time excepted." Then appears a full set of instructions which were presented by the defendant and the refusal of the court to give the same, to which action of the court, an exception is saved. It is insisted by appellee that, under the Code of 1890, the appellant has not properly saved his objections to the instructions. We have examined all of the decisions cited in the brief of counsel for appellee and fail to find that an exception taken in the manner of the one under consideration has been passed upon by the supreme court of Indiana. Elliott et al. v. Woodward, (18 Ind. 183,) in speaking to this question says: "Where instructions given by a court to a jury consist of several distinct propositions, a general exception to the instructions is unavailing, if any one of them is correct." Citing Garrigus v. Burnett, (9 Ind. 528,) to the same effect In Jolly v. The Terre Haute Drawbridge Company, (9 Ind. 417,) we find the court has pointed out how exceptions must be saved in order to make them available in the...
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