Eisminger v. Beman
| Decision Date | 14 May 1912 |
| Docket Number | Case Number: 1813 |
| Citation | 1912 OK 346,32 Okla. 818,124 P. 289 |
| Parties | EISMINGER v. BEMAN. |
| Court | Oklahoma Supreme Court |
¶0 1. PLEADING--Motion to Make More Definite. Under Comp. Laws 1909, sec. 5659, providing that, when " * * * the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment," it is not error to overrule a motion to make a pleading more definite and certain when it is sufficient to inform the opposing party of the precise nature of the charge or defense.
2. TRIAL--Instructions--Reservation of Exceptions. When the instructions are given in writing, and following them the case-made recites, "To the giving of the said instructions and each and all of them the defendant then and there excepted and excepts, and his exceptions were by the court allowed," this is not a sufficient reservation of an exception to any particular instruction contained in the charge under section 5795 of Comp. Laws 1909.
3. SAME--Repetition. When the instructions as given fairly contain the substance of an instruction refused, the refusal of such instruction is not reversible error.
4. APPEAL AND ERROR--Review-- Refusal of New Trial. Under the ruling that, before a new trial will be granted because of newly discovered evidence, it must be made to affirmatively appear that the new evidence would be sufficient to probably produce a different result, a certain amount of discretion is vested in the trial court, and his ruling will not be reversed here unless we are able to see that such evidence would probably produce a different result.
Error from District Court, Kay County; W. M. Bowles, Judge.
Action by Oscar S. Beman against James A. Eisminger. Judgment for plaintiff, and defendant brings error. Affirmed.
James Q. Louthan, for plaintiff in error.
W. K. Moore and Moss, Turner & McInnis, for defendant in error.
¶1 The plaintiff sued the defendant for $ 10,000, damages for alienating the affections of his wife. The case was tried to a jury, resulting in a verdict for $ 400. The first error assigned is that the court erred in overruling the defendant's motion to require the plaintiff to make his petition more definite and certain. The petition alleged that the defendant frequently gave to the plaintiff's wife money, that he made frequent trips to the farm upon which the plaintiff was residing, and that he, by these and other ways, alienated the affections of the plaintiff's wife.
¶2 The motion asks that the plaintiff be required to state the dates and number of times money was given, and the amount given at each time; also that he state the number and dates of the times of defendant's frequent visits to the plaintiff's wife; also that he state specifically "what other ways" the defendant used to alienate her affections. This motion was overruled, as we think, properly. Our statute provides (section 5659 of Comp. Laws 1909):
"If redundant or irrelevant matter be inserted in any pleading, it may be stricken out on motion of the party prejudiced thereby; and when the allegations of a pleading are so indefinite and uncertain that the precise nature of the charge or defense is not apparent, the court may require the pleading to be made definite and certain by amendment."
¶3 There was no showing of injury resulting to the defendant by overruling this motion, and upon the face of the motion no information was called for which seemed necessary, and we do not think the court abused his discretion in overruling the motion. When the petition is sufficiently definite and certain to disclose to the defendant the precise nature of the charge which is brought against him, and the court in its discretion overrules the motion to require it to be made more definite and certain, that ruling will not be reversed unless it has resulted prejudicially. Ft. Smith & W. R. Co. v. Ketis, 26 Okla. 696, 110 P. 661.
¶4 Objection is made to the admission of evidence. One of the objections is that the court permitted a question to be answered twice. Another is that a question is leading and suggestive. Another is that a question was improper cross-examination. Other objections are made to the exclusion of certain evidence by the court. To examine all of these objections seriatim would protract this opinion unduly. It is sufficient to say that we have examined the entire record, and that we think the objections, one and all, are without merit.
¶5 The next error assigned is that the court erred in giving the instructions, but no sufficient exception was saved. In the case-made, after the instructions have been set out in full, the following recital appears:
"To the giving of the said instructions and each and all of them, the defendant then and there excepted and excepts, and his exceptions were by the court allowed."
¶6 Our statute provides (Comp. Laws 1909, sec. 5795):
"A party excepting to the giving of instructions, or the refusal thereof, shall not be required to file a formal bill of exceptions; but it shall be sufficient to write at the close of each instruction, 'Refused and excepted to,' or, 'Given and excepted to,' which shall be signed by the judge."
¶7 This is not a sufficient exception. McCabe & Steen Construction Co. v. Wilson, 17 Okla. 355, 87 P. 320; Glaser v. Glaser, 13 Okla. 389, 74 P. 944; Holloway v. Dunham, 170 U.S. 615, 18 S. Ct. 784, 42 L. Ed. 1165.
¶8 In Isnard v. Edgar Zinc Co., 81 Kan. 765, 106 P. 1003, it is said in the first paragraph of the syllabus:
"Where instructions are given to a jury in numerous paragraphs involving several propositions, and the only exception to any or the whole of such instructions is the following: 'To each and every instruction given by the court to the jury adverse to the defendant, and to each and every part thereof, and to the instructions as a whole, the defendant at the time...
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