Hailey v. Bowman

• Decision Date: 23 December 1913
• Docket Number: Case Number: 3143
• Citation: Hailey v. Bowman, 137 P. 722, 41 Okla. 294, 1913 OK 743 (Okla. 1913)
• Parties: HAILEY et al. v. BOWMAN.
• Court: Oklahoma Supreme Court

1913 OK 743

137 P. 722

41 Okla. 294

HAILEY et al. v. BOWMAN.

Case Number: 3143

Supreme Court of Oklahoma

Decided: December 23, 1913

Syllabus

¶0 1.PLEADING--Objection--Demurrer--Motion to Strike.Where objections to a pleading or a portion of a pleading are based, not on any irregularity connected with its filing, nor on any matter pertaining merely to its form, but on its alleged insufficiency in matter of substance, the objection ought to be taken by demurrer, and not by motion to strike from the pleading the allegations attacked.

2.SAME--Petition--Sufficiency Against General Demurrer.Where the separate paragraphs of a petition sufficiently state a cause of action for debt and mortgage foreclosure, and in addition thereto it is sought to recover attorney's fees as provided for in the mortgage sought to be foreclosed, a general demurrer to each of such paragraphs should be overruled.

3.APPEAL AND ERROR--Presentation Below--Review.Errors alleged to have occurred at the trial in the lower court, unless the same are excepted to and thereafter assigned in the motion for a new trial, and made a part of the record by means of case-made or bill of exceptions, will not be considered on review in this court.

J. E. Whitehead, for plaintiffs in error.

E. L. Graves and W. E. Dunaway(C. M. Oakes and Wm. H. McNeal, of counsel), for defendant in error.

SHARP, C.

¶1 The first error assigned is based upon the court's action in overruling the defendants' motion to strike from the petition the first, second, and third counts thereof, paragraph 9 of the first count, and that portion of the third paragraph which seeks to recover attorney's fees.This appeal is before us on a transcript of the record only, and without passing upon whether the motion to strike is a part of the record proper, and whether the foregoing questions may be raised upon such proceedings in error, we may say it is obvious that counsel have misconceived the purposes of a motion to strike.Where objections to a pleading are based, not on any irregularity connected with its filing, nor on any matter pertaining merely to its form, but on its alleged insufficiency in matter of substance, the objection ought to be taken by demurrer, and not by motion to strike.First Nat. Bank v. Cochran, 17 Okla. 538, 87 P. 855;Finch v. Finch, 10 Ohio St. 501;Savage v. Challiss et al., 4 Kan. 319;Armstead v. Neptune, 56 Kan. 750, 44 P. 998.On the same day that the motion to strike was overruled, defendants filed their demurrer, separately charging that neither the first, second, nor third counts of plaintiff's petition stated facts sufficient to constitute a cause of action against any of the defendants.The objection to the sufficiency of the several counts, urged in this court, arises out of the fact that, in addition to a recovery on the several notes, plaintiff sought to recover attorney's fees, provided for by the real estate mortgage given to secure the payment of said notes.The demurrers urged to the separate paragraphs of the petition, however, are general, and do not confine their attack to the allegations concerning attorney's fees, but charge in turn that the several counts failed to state facts sufficient to constitute a cause of action.Where a general demu...