First Nat. Bank of Wetumka v. Nolen
| Decision Date | 02 May 1916 |
| Docket Number | Case Number: 7564 |
| Citation | 1916 OK 518,157 P. 754,59 Okla. 20 |
| Parties | FIRST NAT. BANK OF WETUMKA v. NOLEN. |
| Court | Oklahoma Supreme Court |
¶0 1. Appeal and Error-- Presenting Questions in Trial Court--Motion for New Trial.
The statutory ground for a new trial, viz., "error of law occurring at the trial and excepted to by the party making the application," will, when embraced in the motion for new trial, present on appeal any objection or exception made to the instructions at the trial in the statutory way.
2. Same--Instructions-- Inconsistency.
The instructions as a whole must be consistent and harmonious, and, where two instructions contain inconsistent propositions, the cause will be reversed, for the reason that the court is unable to tell which the jury followed and which they ignored.
Error from County Court, Hughes County; J. Ross Bailey, Judge.
Action by J. M. Nolen against the First National Bank of Wetumka. Judgment for plaintiff, and defendant brings error. Reversed and remanded.
Jno. E. Turner, for plaintiff in error.
Crump, Skinner & Anglin, for defendant in error.
¶1 The parties will be designated as in the trial court. This action was instituted in the county court of Hughes county to recover the sum of $ 157.76 which plaintiff claimed was due him from said defendant bank, being his balance on deposit in said bank. It appears from the evidence that on the 11th day of September, 1913, the plaintiff procured a loan from said bank in the sum of $ 600. The plaintiff was given a credit on the books of the bank for $ 400, and the controversy arose over the balance, $ 200. The defendant bank claimed that, at the time of the aforesaid transaction. the plaintiff was given a deposit credit of $ 400 and was paid $ 200 in currency. The plaintiff denied that he was paid $ 200 in currency, and claimed that he should have received a deposit credit for that sum also. It was admitted that the plaintiff was due the bank $ 42.24 for an overdraft. The case was tried to a jury, which returned a verdict in favor of plaintiff in the sum of $ 157.76, which was the amount sued for, less the said overdraft. Defendant's motion for a new trial having been overruled, it has perfected an appeal to this court. The defendant moved for a new trial upon the following grounds:
¶2 The assignment of error, so far as pertinent, is as follows:
¶3 The principal ground for reversal of this cause urged by the defendant is because of certain alleged erroneous instructions. The instructions complained of were regularly excepted to at the trial, but the plaintiff contends that the statutory ground for a new trial, "errors of law occurring at the trial and excepted to by the defendant," is too general and indefinite to reach exceptions to the instructions of the trial court, and for that reason not sufficient to raise any question in this court concerning the correctness of the instructions given in the trial of the case.
¶4 It is conceded that there is an apparent conflict in the authorities of this state on this question. The case of Walter A. Wood Co. v. Farnham, 1 Okla. 375, 33 P. 867, supports plaintiff's contention, while the case of Glaser et al. v. Glaser et al., 13 Okla. 389, 74 P. 944, supports defendant. The rule laid down in the case of Walter A. Wood Co. v. Farnham, supra, seems to have been approved in the case of Shuler et ux. v. Collins, 40 Okla. 126, 136 P. 752, and in the case of Gast v. Barnes, 44 Okla. 107, 143 P. 856, and in the judgment of the writer of this opinion is the rule that should have been adhered to in this jurisdiction; but in the recent cases of Cavanagh v. Johannessen, 57 Okla. 149, 156 P. 289, this exact question was under consideration by Judge Roberts, and while he was inclined to follow the rule laid down in the case of Walter A. Wood Co. v. Farnham, supra, yet, on account of the fact that the rule laid down in the case of Glaser et al. v. Glaser et al., supra, had long been followed and was the accepted practice in this state, he was of the opinion that it would work a hardship to establish the more strict rule contended for by plaintiff here.
¶5 It seems the conflict of the authorities in this state arose from the fact that at the time the case of Walter A. Wood Co. v. Farnham, supra, was rendered, the Indiana practice act was in force in the then new territory of Oklahoma, and this case followed the rule in Indiana, while, when the case of Glaser et al. v. Glaser et al., supra, was rendered, we had then adopted the Kansas practice, and the Supreme Court of Kansas had refused to follow the Indiana decision on this question, but held squarely to the contrary, that the Statutory ground for a new trial, viz., "error of law occurring at the trial and excepted to by the party making application," will, when embraced in the motion for new trial, present on appeal any objection or exception made to the instructions at the trial in the statutory way. Richardson v. Mackay, 4 Okla. 328, 46 P. 546; De Lee v. Blackburn, 11 Kan. 190: Marbourg v. Smith, 11 Kan. 554; St. Louis & S. F. R. Co. v. Werner, 70 Kan. 190, 78 P. 410.
¶6 The practice in this state is now thoroughly committed to the Kansas rule on the question at bar as laid down in the case of Glaser et al. v. Glaser et al., supra, from which we take the following:
"The eighth statutory cause for a new trial, * * * viz., 'error of law occurring at the trial and excepted to by the party making the application,' will, when embraced in a motion for a new trial, present to the trial court any objection or exception properly made and saved during the progress of the trial, and this includes exceptions to the giving of instructions to the jury; and an assignment of error in this court to the effect that the court erred in overruling the motion for new trial will present for review by the supreme court every alleged error embodied in the motion for new trial." Boyd v. Bryan, 11 Okla. 56, 65 P. 940; Stark Bros. v. Glaser, 19 Okla. 502, 91 P. 1040; Baker v. Tate, 41 Okla. 353, 138 P. 171; Cavanagh v. Johannessen, 57 Okla. 149, 156 P. 289.
¶7 In the second assignment of error...
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