Fed. Sur. Co. v. Little, Case Number: 19846

• Decision Date: 13 October 1931
• Docket Number: Case Number: 19846
• Citation: 9 P.2d 447,1931 OK 600,156 Okla. 75
• Parties: FEDERAL SURETY CO. et al. v. LITTLE.
• Court: Oklahoma Supreme Court

1931 OK 600

9 P.2d 447

156 Okla. 75

FEDERAL SURETY CO. et al. v. LITTLE.

Case Number: 19846

Supreme Court of Oklahoma

Decided: October 13, 1931

Syllabus

¶0 1. Appeal and Error -- Review -- Record -- Oral Statements of Court on Law and Facts as Impeaching Judgment and Ruling on Motion for New Trial.

Where, at the conclusion of a trial of a law case, had before the court without a jury, the court orally makes general observations as to the law and facts involved in the case, and such general remarks are not included within a journal entry setting forth the findings and judgment, but are incorporated in the case-made from the minutes of the clerk or reporter, such general oral observations of the court perform no office in the case-made and cannot be considered by this court on appeal for the purpose of impeaching such judgment, but where the court makes oral statements showing that he approves or disapproves his former findings and judgment and citing the reasons therefor, and assigns certain reasons for granting or refusing a new trial, and thereafter signs a journal entry setting forth such statements and reasons, and such journal entry is filed in the case, and appears in the case-made, the same will be considered by this court on appeal on the question of whether or not the new trial was properly granted or refused as the case may be.

2. New Trial--Motion on Ground Findings and Judgment Contrary to Evidence--Abuse of Discretion in Granting New Trial After Approving Findings and Judgment.

It is the duty of the trial court upon a motion for a new trial, which challenges the findings and judgment of the court, where the trial was to the court without a jury, upon the ground that they are contrary to the evidence, to weigh the evidence, if there be any conflict therein, and to approve or disapprove the findings and judgment. If, upon so doing, he approve the finding and judgment and thinks they were correct and the judgment was for the right party under the evidence, it is an abuse of discretion to grant a new trial upon grounds other than those provided by law.

Appeal from District Court, Marshall County; Porter Newman, Judge.

Action by J. W. Little against the Federal Surety Company et al. From order granting plaintiff a new trial, defendants appeal. Reversed.

Ames, Cochran, Ames & Monnet and Hatchett & Ferguson, for plaintiffs in error.

Reuel W. Little, for defendant in error.

RILEY, J.

¶1 This is an appeal from an order granting the defendant in error, hereinafter referred to as plaintiff, a new trial. Plaintiffs in error, hereinafter referred to as defendants, contend that the trial court committed error as to a simple and unmixed question of law in granting a new trial, and also grossly abused his judicial discretion.

¶2 The action is one for the recovery of damages for alleged breach of a contract for the construction of a building. J. C. Gosdin and N. M. Gosdin, partners, doing business as Gosdin Brothers, were the contractors, and Federal Surety Company was their surety upon a bond given to secure the performance of the contract.

¶3 Defendants Gosdin Brothers filed an answer in which they admitted the execution of the contract and alleged, in substance, that they were ready at all times to complete the building under the terms of the contract, but that plaintiff had refused to permit them so to do, and had demanded certain things to be done not called for in the plans and specifications prepared by an architect, and made a part of the contract, and alleged that they had done work and furnished material to the value of $ 2,500 for which they had not been paid, and prayed for judgment against plaintiff in said sum.

¶4 The cause was tried before Honorable Porter Newman, district judge of Marshall county, without a jury, on May 27, 1927, and taken under advisement until July 2, 1927, at which time judgment was rendered for defendants on plaintiff's petition and against them on their cross-petition.

¶5 On July 5, 1927, plaintiff filed his motion for a new trial, assigning as grounds therefor that the judgment was contrary to both the law and the evidence, and errors of law occurring at the trial.

¶6 For some reason, not explained, no action was taken upon this motion until May 7, 1928, at which time the motion for a new trial was sustained and defendants gave notice of their intention to appeal. On the same day the trial court signed a journal entry of the order granting a new trial, reading as follows:

"Now on this the 7th day of May, 1928, the same being a regular judicial day of the May term of this court, the motion of plaintiff for a new trial came on for hearing in its regular order and the plaintiff, J. W. Little, appearing by his attorney, R. W. Little, and the defendants J. C. Gosdin and N. M. Gosdin, and Federal Surety Company, a corporation, appearing by their attorney of record, Hatchett & Ferguson, whereupon the court heard the argument of counsel and reviewed the facts in the case and being fully advised in the premises, sustained the plaintiff's motion for a new trial and said motion for a new trial is hereby granted. The defendants excepted to the ruling of the court which said exceptions were allowed and notice of appeal was given by defendants."

¶7 This journal entry was prepared by plaintiff's counsel, but whether or not it was submitted to defendant's counsel for their approval before being signed by the judge does not appear. Some days thereafter, defendants' counsel prepared a second or supplemental journal entry and presented it to the trial court for his signature, which he signed, and which reads as follows:

"Now, on this the 7th day of May, 1928, the same being one of the regular days of the district court of Marshall county, Okla., there came on to be heard the motion of the plaintiff for a new trial in this cause, which said motion is presented to the court by counsel for both the plaintiff and the defendant, upon the conclusion of which argument, the court makes the following statement, to wit: 'I had this case under advisement for about two months before judgment was rendered. At the time the case was tried, I heard all the evidence and carefully considered it. When I rendered judgment in this case, I thought my judgment was right and still think so. It was the only judgment I could then have rendered and is the only judgment I could render now. If the plaintiff ever gets anywhere with this lawsuit, he will have to materially change his testimony. The plaintiff thinks that he was outraged, and I have decided, after carefully considering the matter, to grant a new trial and to certify my disqualification as trial judge in this cause, which I now do.'

"Therefore, an order was made by the court sustaining the motion for a new trial as is set forth in a separate journal entry signed herein, to which action of the court the defendants except and their exception is allowed. Thereupon, the defendants gave notice of an appeal to the Supreme Court of Oklahoma, which said notice the clerk is ordered to enter on the minutes. The defendants ask and are granted 90 days from this date in which to prepare and serve case-made for appeal. The plaintiff is granted 10 days after the service of said case-made, in which to suggest amendments. Said case-made to be settled on five days' written notice by either party.

"Appeal or supersedeas bond of said defendants is fixed at the sum of $ 500, and said defendants shall have 90 days from this date in which to file the same. Said bond to be approved by the clerk of this court."

This journal entry appears at p. 115 of the case-made.

¶8 Orders were made extending the time to prepare and serve a case-made to and beyond October 16, 1928. On that date the case-made, as prepared by defendants and with certain amendments thereto suggested by plaintiff, was presented to the court for his approval or disapproval for the purpose of settling and signing the case-made. Certain of the suggested amendments were agreed to by defendants and were granted by the court. The sixth of the suggested amendments called for the striking from the case-made of the second journal entry above mentioned and was resisted by defendants' counsel. When this question was presented to the trial judge, he made the following order:

"This case-made came on to be heard for final settlement on this the 16th day of October, 1928, and it being called to the court's attention that an order was signed by the court on the 7th day of May, 1928, at p. 115 of the case-made, in which it was incorporated a statement as to the reasons why the court granted a new trial, and there being no record made of such statement at the time the motion was granted and no exception thereto being saved by either party as to the statement of the court, the court of his own motion sets aside and holds for naught the journal entry on that date and recorded on p. 115 of the case-made, and adopts in lieu thereof as follows:

"'That, on the 7th day of May, 1928, the same being a regular day of the district court of Marshall county, Okla., there came on for hearing the motion of plaintiff for a new trial in this case, which said motion was presented to the court by counsel of both sides and after argument of counsel the court granted the motion for a new trial, which order is recorded in case-made on p. 114 1/2 thereof, granting a new trial and notice of appeal was given in said order, but no time fixed in which the appeal was to be made, but an order was duly made and entered in the office of the court clerk allowing 90-10 and 5 for preparing and serving case-made and settling same; thereupon the defendants gave notice of appeal to the Supreme Court of the state of Oklahoma, which said notice was by the clerk entered upon the minutes of the court as required by law, and upon the prayer of the defendants they were granted 90 days from the 7th day of May, 1928, in which to prepare and serve case-made and the plaintiff

...