Eggleston v. Williams

• Decision Date: 14 November 1911
• Citation: 120 P. 944,30 Okla. 129,1911 OK 377
• Parties: EGGLESTON et al. v. WILLIAMS.
• Court: Oklahoma Supreme Court

120 P. 944

30 Okla. 129, 1911 OK 377

EGGLESTON et al. v. WILLIAMS.

Supreme Court of Oklahoma

November 14, 1911

Syllabus by the Court.

Section 5827, Snyder's Comp. Laws Okl. of 1909, provides that motion for new trial must be made within three days after the verdict or decision was rendered, unless unavoidably prevented, except in the case of newly discovered evidence material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial. Therefore, in the absence of any excuse, a motion for a new trial, filed more than three days after the decision in a case was made, will not be considered by the trial court and no error will be committed in overruling the same.

This court will not review the rulings of a lower court made in the course of the trial, unless a motion for a new trial based upon such alleged errors, had been duly presented to the lower court, and an opportunity thereby to re-examine and correct them has been given to such court.

The case-made shows that judgment was entered on March 19th, and a bare recital follows stating that a motion for a new trial was filed, presented, and overruled on March 23d. No copy of the motion is to be found in the case-made. Held that, even though a motion for a new trial had been presented, it affirmatively appears that it was not filed within the three days as required by statute, and in the absence of any excuse as to why it had not been so filed error assigned on account of the overruling of the same by the trial court will not be considered by this court.

Common-law forms of actions have been abolished by statute in this state; but common-law causes of action have not been abolished. Under the Code the plaintiff need only state the facts constituting his cause of action in ordinary and concise language without repetition. The petition in this case examined, and held to be sufficient as against a general demurrer.

Commissioners' Opinion, Division No. 1. Error from District Court, Muskogee County; John H. King, Judge.

Action by James A. Williams against Robert N. Eggleston and another to recover on a breach of warranty. Judgment for plaintiff, and defendants bring error. Affirmed.

Enloe V. Vernor, for plaintiffs in error.

N. B. Maxey and Chas. F. Runyan, for defendant in error.

ROBERTSON C.

On March 16, 1907, the defendant in error, Williams, commenced an action against Robert N. and Blanche G. Eggleston, plaintiffs in error, in the United States Court for the Western District of Indian Territory, to recover $561.95 and interest, alleged to be due him on account of a breach of warranty of title to lots 4 and 5, in block 3, in the town of Chase, in said Indian Territory. A general demurrer to the sufficiency of the complaint was interposed by the Egglestons, which was overruled by the court and thereafter answer was filed and trial was had in the district court of Muskogee county, which resulted in a judgment entered on March 19, 1909, in favor of the plaintiff, in the sum of $721.30, with interest at 6 per cent. per annum from said date. To reverse this judgment, Eggleston and wife bring this appeal, and urge many reasons in support of their claims. All the alleged errors, except the overruling of the general demurrer to the complaint, occurred at the trial, and could only be reviewed by the trial court on timely notice for new trial.

On page 60 of the case-made is found the following statement: "And thereafter, on the 23d day of March, 1909, the defendants filed their motion for a new trial, which motion was by the court on March 27, 1909, overruled, to which ruling the defendants excepted." At no other place in the record is there any reference to a motion for a new trial. Nor is there a copy of any such motion in the record before us. The rule is well settled that a motion for a new trial in order to be considered by the trial court must be filed within three days from the date of the judgment.

This was not done in this case as judgment was entered, on the 19th day of March, and, according to the bare statement in the case-made (which is not sufficient, however), the motion was not presented until the 23d day of March. Hence it affirmatively appears that no motion for a new trial was filed in this case as required by statute. In a very able opinion, Mr. Chief Justice Turner, speaking for our Supreme Court, in Joiner v. Goldsmith, 25 Okl. 840, 107 P 733, in discussing this identical question, said: "After amended answer and reply, there was a trial by jury which on March 16, 1906, resulted in a verdict and judgment for plaintiff and against defendant for said sum, with interest and costs. On March 20, 1906, or four days later, defendant filed his motion for a new trial, which was overruled. Defendant brings the case here, and assigns for error that the court erred in overruling his motion for new trial. But we cannot consider it, for the reason that the motion was filed out of time. Snyder's Comp. Laws Okl. § 5827, requiring that the motion be filed within three days after the verdict, is mandatory, and, in the absence of a showing that the party filing it has been unavoidably prevented from filing it within the time specified by the statute, this court cannot consider it or review the...