Godfrey v. F. D. Bearley Lbr. Co.
| Decision Date | 09 April 1935 |
| Docket Number | Case Number: 24714 |
| Citation | 1935 OK 389,43 P.2d 478,171 Okla. 425 |
| Parties | GODFREY v. F. D. BEARLEY LBR. CO. |
| Court | Oklahoma Supreme Court |
¶0 1. APPEAL AND ERROR - Two Methods of Appeal - Appeal by Case-Made or by Transcript.
There are two ways of bringing a record to this court in support of a petition in error: (a) The party appealing may attach to his petition in error a case-made containing all the record, including evidence and statements of the exceptions, without the necessity of having the exceptions reduced to writing, allowed, and signed by the trial judge; (b) or the appealing party may attach to his petition in error a transcript of the record, and if he desires to bring to this court any part of the record, other than the pleadings, the process, the return, reports, verdict, orders, and judgments, as provided for in section 688, C. O. S. 1921, he must incorporate the same into the record by a bill of exceptions.
2. SAME - Incorporation of Evidence and Oral Proceedings, in Narrative Form in Case-Made.
The statutes do not require that a case-made contain a transcript of the court reporter's notes of the evidence and proceedings, and such being the case, the evidence and oral proceedings may be reproduced in narrative form from the memory of the court and counsel and incorporated in the case-made as showing all the evidence introduced in the trial court.
3. APPEAL AND ERROR - NEW TRIAL - Discretion of Court as to Granting New Trial Because of Impossibility of Making Case-Made.
A petition for new trial based upon the ground that it has become impossible for the complaining party to make and serve a case-made is addressed to the sound discretion of the trial court. The ruling of the court thereon will not be reversed unless it is made to appear that there was a clear abuse of discretion in denying the motion for new trial.
4. APPEAL AND ERROR - Motions to Dismiss Appeal not Favored.
Motions to dismiss appeals are not looked upon with favor, and unless it clearly appears from the appellant's statement of his own case that the appeal is wholly without merit, or it is manifestly clear from a casual examination of the record that the only point involved is a clear and unmixed question of law, firmly and finally settled adversely to plaintiff in error by the decisions of this court, or the court is without jurisdiction, or the case is moot, a motion to dismiss will not be considered in advance of the date the case comes on regularly to be heard on its merits.
5. APPEAL AND ERROR - REVIEW - Sufficiency of Evidence in Jury-Waived Case.
Where jury is waived and the trial court renders a judgment based upon conflicting testimony, such judgment will not be disturbed where there is evidence reasonably tending to support it.
Appeal from District Court, Oklahoma County; Warren K. Snyder, Special Judge.
Action by F.D. Bearley Lumber Company against D.V. Godfrey. Judgment for plaintiff, and defendant appeals. Affirmed.
Fred Davis, for plaintiff in error.
Charles B. Selby and Max M. Fagin, for defendant in error.
¶1 The parties will be referred to herein as they appeared in the trial court. The plaintiff sued the defendant for a balance due for material it claimed to have sold the defendant. The amount was not in controversy. It was stipulated at the trial that the only question for the court to determine was whether the account was a proper charge against the defendant, and whether the defendant did or did not order or authorize the purchase of the material.
¶2 The parties in open court selected and agreed to the Hon. Warren K. Snyder, as a special judge to try said cause, and waived a jury, and waived having the testimony of the witnesses taken by a court reporter.
¶3 Both parties offered the testimony of a number of witnesses, and at the conclusion of the trial the court rendered its decision for the plaintiff and judgment was entered against the defendant for the amount found due. The defendant filed a motion for a new trial within the time allowed by statute; this motion was overruled by the court December 7, 1932. The order overruling the motion shows that the defendant gave notice in open court of his intention to appeal to the Supreme Court and was given 90 days to make and serve a case-made, the plaintiff to have three days thereafter to suggest amendments, the same to be settled and signed on three days' notice.
¶4 The record further shows the following:
"And thereafter, and on, to wit, the 21st day of November, 1932, said cause was duly submitted to the Honorable Warren K. Snyder, trial judge, and at said trial the evidence was introduced and proceedings had as shown by the 'bill of exceptions,' duly settled in said cause, which together with all the Indorsements thereon being in words and figures as follows, to wit."
¶5 This is followed by a recital of the proceedings at the trial, with the testimony of numerous witnesses set out in narrative form. At the close appears the following:
"That the above and foregoing contains the substance and effect of all of the material evidence introduced on said trial, and sufficient of evidence and proceeding to present the errors complained of defendant, to wit, rendition of judgment herein against defendant D.V. Godfrey for recovery of value of said material and cement sued for."
¶6 This so-called bill of exceptions was filed with the clerk of the district court on February 7, 1933. On March 1st, and at a succeeding term of the district court, the defendant filed a petition to vacate the judgment and grant a retrial of said cause. This petition was substantially on the same grounds as set out in the defendant's motion for a new trial, and in addition the defendant claimed that the bill of exceptions filed in said case, purporting to be a record of the trial, did not correctly recite the evidence submitted at the trial. The defendant submitted affidavits of witnesses in support of the allegation of his petition. A summons was issued, served on the plaintiff, and a hearing was had before the Honorable Jesse Worten, a district judge specially assigned to hold court in Oklahoma county. The parties appeared by the their respective counsel, and after a hearing the petition to vacate the judgment was denied.
¶7 We are met at the outset of this case with a motion by the defendant in error to strike the so-called bill of exceptions from the record or case-made on the ground that the purported bill of exceptions was reduced to writing and filed after the term of court when such proceeding was tried, and no order of court made extending the time within which the exceptions could be reduced to writing.
¶8 Section 566, C. O. S. 1921 (384, O. S. 1931), is as follows:
¶9 Section 569, C. O. S. 1921 (387, O. S. 1931), provides as follows:
¶10 This case was tried in the court below on November 24, 1932. This was the September term of Oklahoma county district court, which expired on the first Monday of January, 1933. The bill of exceptions was reduced to writing, signed by the trial court and filed with the clerk of the district court on February 7, 1933, during the succeeding January, 1933, term of said court.
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