Gamel v. Hynds

• Decision Date: 29 January 1918
• Docket Number: 6071.
• Citation: 171 P. 920,69 Okla. 204,1918 OK 62
• Parties: GAMEL v. HYNDS et al.
• Court: Oklahoma Supreme Court

171 P. 920

69 Okla. 204, 1918 OK 62

GAMEL v. HYNDS et al.

No. 6071.

Supreme Court of Oklahoma

Jan. 29, 1918

Rehearing Denied March 26, 1918.

Syllabus by the Court.

In cases of equitable cognizance, the judge may call a jury or consent to one for the purpose of advising him on questions of fact, and he may adopt or reject their conclusions; and instructions offered by the parties furnish no ground of error on appeal.

It is not only the right but the duty of the court in such cases to finally determine all questions of fact as well as of law and, where the record shows that the court did not adopt the findings of the jury but especially disagreed therewith, a judgment of the court based on the findings of the jury must be reversed.

Parol evidence is inadmissible to prove the existence of a foreign judgment.

Commissioners' Opinion, Division No. 3. Error from District Court, Pontotoc County; J. W. Bolen, Judge.

Suit by J. C. Hynds and another against J. A. Gamel. Judgment for plaintiffs, and defendant brings error. Reversed, and remanded for new trial.

J. F McKeel, of Ada, for plaintiff in error.

Robert Wimbish, B. H. Epperson, and Tom D. McKeown, all of Ada, for defendants in error.

HOOKER C.

This suit was instituted in the lower court by Gamel against J. C and Agnes Hynds to recover a personal judgment upon three promissory notes for $800 each with 8 per cent. interest from the date, August 17, 1906, and to establish and foreclose a vendor's lien upon certain real estate described here. And it was alleged that said notes had been executed to N. B. Breckinridge as a part of the purchase price for real estate conveyed by Breckinridge to Hynds, and that said notes had been assigned and transferred before maturity for a valuable consideration to the plaintiff in error who upon default and maturity thereof instituted this action.

N. B. Breckinridge, on his application, was made a party defendant to this action in the court below, and he filed an answer in his own behalf which admitted the execution of said notes to him and his transfer thereof to Gamel, but he alleged that, after the execution and delivery of said notes and the conveyance of the property for which they were given as a part of the purchase price, he removed from the state of Oklahoma to the republic of Mexico, and while he was there that he was induced by Gamel to purchase an interest in a certain corporation organized by Gamel for the purpose of manufacturing and selling ice and soda water, and that he was induced to take stock in said corporation by means of false and fraudulent representations made by Gamel to him as to the value of the said stock, and that relying upon these representations, he had executed his note for $5,000 to the plaintiff, Gamel, and in order to secure the payment thereof had deposited with Gamel as collateral security the three notes involved in this action; that there was no other consideration for said note other than this worthless stock, and that plaintiff knew at the time he made said representations that they were false and were made by Gamel for the purpose of defrauding him, which it did. As a further defense the said Breckinridge alleged that suit had been filed upon the $5,000 note against him in the court at Saltillo, Mexico, and that a judgment of the court had been rendered there in his favor to the effect that said note was void and without consideration, and that judgment was relied upon by Breckinridge in bar to any recovery here. It was further asserted by Breckinridge that there was no consideration for the notes executed by Hynds to him.

To the answer of Breckinridge the plaintiff, Gamel, filed a reply, and upon the issues as presented the cause was tried and a judgment had in favor of the defendants in error, from which an appeal is had to this court.

It will be noticed that this is an action of equitable cognizance, as the plaintiff below sought the foreclosure of a vendor's lien upon the property involved. The defendant. Breckinridge, asked that the notes be canceled that the vendor's lien on said real estate be released, and that his deed to Hynds be canceled and held for naught, and that the court decree the title to said property to him, and the judgment of the court so did. The trial court submitted these issues to the jury under instructions, and a verdict was rendered in favor of the defendants in error. The court below evidently failed to recall that the verdict of the jury was only advisory, and that as the trial court he had the right to disregard the verdict of the jury if same did not meet with his own views as to what the equities of the case demanded. From the record before us the verdict of this jury did not meet with the approval of the trial judge, for in the order of the...