Guthrie v. Mitchell
| Decision Date | 29 April 1913 |
| Citation | 132 P. 138,38 Okla. 55,1913 OK 261 |
| Parties | GUTHRIE v. MITCHELL ET AL. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The question of misjoinder of parties plaintiff not having been raised in the trial court cannot be raised for the first time on review in this court.
The husband or wife are competent to testify for or against each other "when they are joint parties and have a joint interest in the action."
(a) It is essential not only that they be joint parties, but also that they have a joint interest in the action.
Section 5842, Compiled Laws of Oklahoma 1909, provides that the husband and wife are competent to testify for or against each other concerning transactions in which one acted as agent of the other. Held, that where the plaintiff, a married woman, sued for the rents and profits from a certain tract of land belonging to her, which cause of action arose prior to her marriage, she was not entitled to have her husband measure said land, and then testify in her behalf as to the number of acres ascertained by such measurements.
(a) Incompetent evidence having been admitted as to the number of acres in cultivation, the same fact also being testified to by another witness in behalf of the same party in such manner as to render it competent, and the evidence on behalf of the opposite party raising a sharp issue as to such matters, the erroneous admission of said evidence cannot be held to constitute harmless error.
The courts of the state of Oklahoma take judicial knowledge of the laws in force at the time of the erection of the state in the Indian Territory by virtue of acts of Congress.
Section 3465, Mansfield's Digest of the Statutes of Arkansas (section 2361, Indian Territory Statutes 1899), providing that the father while living shall be the natural guardian of his minor children, and when their estate is not derived from him shall give security and account as other guardians, and section 3477, Mansfield's Digest of the Statutes of Arkansas (section 2373, Indian Territory Statutes 1899) providing that where a minor is possessed of an estate not derived from the natural guardian a curator may be appointed for its management, do not abrogate the common-law rule requiring the father to account for the rents and profits of any property which she may have derived from him, and of which he retains possession during her minority.
Error from District Court, Garvin County; R. McMillan, Judge.
Action by Susie Mitchell and husband against W. M. Guthrie. Judgment for plaintiffs, and defendant brings error. Reversed and remanded.
O. W Patchell and Marion Henderson, both of Pauls Valley, for plaintiff in error.
Robert T. Jones, of Pauls Valley, for defendants in error.
This proceeding in error is to review the judgment rendered in an action wherein the defendants in error Susie Mitchell joined by her husband, J. F. Mitchell, as plaintiffs, sued the plaintiff in error, W. M. Guthrie, her father, as defendant for the recovery of rents and profits alleged to have been received by him while she was a minor and in his custody and care from certain lands allotted to her as a member of the Choctaw Tribe of Indians. The parties will hereafter be referred to in the manner in which they appeared in the lower court.
1. No objection was made in the trial court that there was a misjoinder of parties plaintiff, and such question cannot be raised for the first time in this court. Choctaw & Oklahoma R. Co. v. Burgess, 21 Okl. 653, 97 P. 271; Kansas City, M. & O. R. Co. v. Shutt, 24 Okl. 96 104 P. 51, 139 Am. St.
Rep. 870, 20 Ann. Cas. 255; Railway Co. v. Amos, 54 Ark. 159, 15 S.W. 362; Hackett et vir. v. Bonnell et al., 16 Wis. 471.
2. The husband or wife are competent to testify for or against each other "when they are joint parties and have a joint interest in the action." Here they are joint parties, but have no joint interest in the action. A compliance with both conditions seems to be essential. West & Russell v. Rawdon et ux., 33 Okl. 399, 130 P. 1160.
The husband was permitted to testify, over objections, that he knew the number of acres that were in cultivation, having had it surveyed by the county surveyor after their marriage, and also having cultivated it one year; that there were 93 acres in cultivation. He also testified that it was good average land, the bottom part being better than average and the upland about an average; that the upland was not cultivated in 1904; that there was about 42 acres of it, the balance in cultivation being in the bottom; that at the time of his marriage there were no improvements on said premises except a three-wire fence with posts 16 1/2 feet apart; that there had been an old dugout and a well put on the premises in 1904, but the dugout had fallen down and the well caved in. This evidence should have been excluded. Fish v. Bloodworth, 129 P. 32. The record discloses a sharp conflict in the evidence on the part of plaintiffs and defendant as to the number of acres in cultivation during the years 1904, 1905, 1906, and 1907, especially between the evidence of the defendant himself and the witnesses for the plaintiffs, to wit, the husband and one Adams. Counsel for defendants in error insists that, if the evidence of the husband be inadmissible, yet it is not prejudicial error, as there was other evidence on the part of the plaintiffs tending to prove the same state of facts. When a case is tried to a jury and the evidence is conflicting, we do not understand that such admission of incompetent evidence operates as harmless error because other evidence which was competent was introduced by plaintiff to the same effect, for it may be that the evidence of the husband turned the scale of preponderance in favor of the wife. Under this record, we are forced to reverse this case on account of the admission of the evidence of the husband.
3. This cause of action having arisen in the Indian Territory, under the laws in force there prior to the erection of the state, such laws apply here. Hocker v. Johnson, 131 P. 1094, decided by this court at this term, but not yet officially reported.
Sections 3465 and 3477, Mansfield's Digest of the Statutes of Arkansas (), are construed in Rhea et al. v Bagley, 63 Ark. 374, 38 S.W. 1039, 36 L. R. A. 86, and held not to abrogate the common-law rule requiring a father to account for the rents and profits of property which he has given his...
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