Harris v. Hart

• Decision Date: 13 July 1915
• Docket Number: Case Number: 4221
• Citation: Harris v. Hart, 151 P. 1038, 49 Okla. 143, 1915 OK 559 (Okla. 1915)
• Parties: HARRIS et al. v. HART.
• Court: Oklahoma Supreme Court

1915 OK 559

151 P. 1038

49 Okla. 143

HARRIS et al. v. HART.

Case Number: 4221

Supreme Court of Oklahoma

Decided: July 13, 1915

Syllabus

¶0 1. MAJORITY VERDICT. Section 19, art. 2, of the Constitution, provides that, in all civil cases and criminal cases less than felony, three-fourths of the whole number of Jurors concurring shall have power to render a verdict, and requires that when a verdict is rendered by less than the whole number of Jurors the verdict shall be in writing and signed by each juror concurring therein.

2. TRIAL--Majority Verdict--Irregularity--Waiver. Where a majority verdict is returned by less than the whole number of jurors, and their verdict read in open court by the clerk, and the jurors concurring therein in answer to questions by the court say that same is their verdict and was signed by them, and no objection is made that the name of one of the jurors was signed by mark and that the person signing the name of said juror did not sign his name thereto as a witness, the irregularity in the signature is waived.

3. MOTIONS--Order--Effect. An order in probate made by the United States court in the Indian Territory upon final report of a guardian in a guardianship matter that the minor, who was a Cherokee freedman, was of a certain age at the date of the order, is not competent evidence in an action between grantees of said minor to establish the age of said minor at the date of the different instruments relied upon by the parties to the ejectment suit.

4. EVIDENCE--Competency--Age of Person. A person is a competent witness to testify as to his own age and the date of his birth, even though his parents be living and within the jurisdiction of the court.

5. APPEAL AND ERROR--Ground for Reversal--Admission of Evidence. The admission of incompetent evidence, tending to prove a material issue in the case, that appears to have prejudiced the rights of the party objecting thereto, is reversible error.

ON PETITION FOR REHEARING.

6. APPEAL AND ERROR--Petition for Rehearing--Assignment--Notice. Under Rule 9 (38 P. vi, 137 P. ix), a case may be considered on petition for rehearing and the former opinion reversed without assigning said petition for hearing and without notice by the clerk to the parties to said cause. It is only when a rehearing is granted that this is required.

7. CHAMPERTY AND MAINTENANCE--Date of Champertous Deed--Adverse Possession--Pleading and Proof. When the pleadings fail to allege, and the evidence fails to show, that at the date of a deed claimed to be champertous the party making such claim, or his grantors, were in the adverse possession of the premises described therein, such claim cannot be sustained.

8. TRIAL--Presentation of Question Below--Exception--Evidence. Where, in the absence of the jury, objection to the admission of certain evidence was overruled, and the court stated that an exception would be allowed, and thereafter the jury were returned into court and the evidence introduced without further objection or exception to the ruling of the court thereon, this will be sufficient to preserve such objection.

Robert F. Blair and W. O. Rittenhouse, for plaintiffs in error.

W. H. Kornegay, for defendant in error.

HARDY, J.

¶1 Defendant in error, B. L. Hart, brought suit in the district court of Craig county, for the possession of certain lands, alleging that he was entitled to the immediate possession thereof, and deraigned his title as follows: That on November 14, 1905, one Allie Nash, a Cherokee freedman, executed a warranty deed, conveying said lands to the Campbell-Ratcliff Land Company; that on January 13, 1906, said Nash executed another warranty deed to said land company; and on May 11, 1906, said land company conveyed said lands to the Creek Land & Improvement Company, which last-named company on June 25, 1910, conveyed said lands by warranty deed to said B. L. Hart. Defendant Wilson filed separate answer, admitting possession of said premises, but alleged simply that he was the tenant of his codefendant, F. S. Harris. Defendant Harris filed answer, alleging that at the time of the execution of the deed by the said Allie Nash to the Campbell-Ratcliff Land Company, November 14, 1905, said Allie Nash was a minor; and that at the time of the execution of the deed of date January 13, 1906, said Allie Nash was a minor; that the deed from the Campbell-Ratcliff Land Company of date May 11, 1906, to the Creek Land & Improvement Company, was void for the reason that the said land company had no right or title in said lands; that the deed from the Creek Land & Improvement Company to the defendant in error, B. L. Hart, of date June 25, 1909, was void for the same reason; and that the deed from the said Nash to the defendant in error, B. L. Hart, of date December 15, 1909, was procured for the purpose of ratifying all of the above-mentioned deeds, and was therefore void. Defendant Harris further alleged that he was the owner of the legal and equitable estate in said premises, having purchased same from the allottee, Allie Nash, by warranty deed, dated June 9, 1909; and prayed that plaintiff in said suit take nothing, and that all of the said above-mentioned deeds under which defendant in error claims be canceled and declared clouds upon the title of defendant Harris. Reply was filed to this answer, and upon the issues thus joined the case was tried to a jury on the 28th day of November, 1911, resulting in a verdict in favor of defendant in error, B. L. Hart, upon which verdict judgment was rendered, and this appeal prosecuted. The first proposition presented in the brief is that, three-fourths of the whole number of jurors having returned a verdict, and the signature of one of such jurors appearing to have been made by mark, and said signature not having been witnessed as required by statute, the verdict is void and the court was without authority to receive same or to render judgment thereon. The verdict was signed by nine jurors, and opposite the name of W. T. Rafferty, one of the jurors, appeared this notation, "His X mark." No attesting witness to such signature appears thereon in the usual form. Section 19, art. 2, Const., provides:

"In civil cases, and in criminal cases less than felonies, three-fourths of the whole number of jurors concurring shall have power to render a verdict. In all other cases the entire number of jurors must concur to render a verdict. In case a verdict is rendered by less than the whole number of jurors, the verdict shall be in writing and signed by each juror concurring therein."

¶2 Section 2945, Rev. Laws 1910, defines "signature" to be as follows:

"'Signature' or 'subscription' includes mark, when the person cannot write, his name being written near it, and written by a person who writes his own name as a witness."

¶3 Construing this section of the statute, the Supreme Court of Oklahoma Territory, in Sivils v. Taylor, 12 Okla. 47, 69 P. 867, held, where the name of a person who signed by mark was not witnessed in the manner required by this section, the same did not constitute a signature within the meaning of the statute, and this opinion was followed in Sims v. Hedges, 32 Okla. 683, 123 P. 155, and in Walker Bond & Co. v. Purifier et al., 32 Okla. 844, 124 P. 322. Plaintiffs in error urge that this statute and these decisions are controlling in this case, and that the verdict was a nullity and therefore could form no basis for a judgment to be rendered thereon. We cannot agree with this contention. In the first place, there is nothing to indicate, other than the notation, that the signature of the juror Rafferty was not in his own handwriting; and, even if the name of the juror was written by another, it does not appear that it was not written in the presence of all the jurors and by one of the jurors who also signed his name to the verdict. The record shows that, when the jurors returned into open court with their verdict, they were asked by the court whether they had agreed upon a verdict, and answered in the affirmative, and thereupon the verdict was read in the presence of the jury, and the court then said:

"Gentlemen of the jury, is this your verdict that you have heard read in your presence and hearing, your verdict in this case?" Answer by the jury: "Yes, sir." By the Court: "You gentlemen whose names are signed to it each signed it, did you?" By the jury: "Yes, sir."

¶4 We think these facts present a very different case from that of any of the decisions referred to, and which are relied upon by plaintiffs in error. A case more nearly in point, to our mind, is the case of Stanard v. Sampson, 23 Okla. 13, 99 P. 796. In that case special interrogatories were submitted to the jury and answers were returned, and the interrogatories were read in the presence and hearing of the jury, and the jurors were asked by the trial court if the answers written by them immediately following each interrogatory were their finding, and each of the jurors answered in the affirmative. Thereupon the special findings were received by the court and ordered recorded, and the jury discharged, without any objection being taken by either side. The answers to the special interrogatories were not signed as required by section 5011, Rev. Laws 1910. In the case of City of Kingfisher v. Altizer, 13 Okla. 121, 74 P. 107, the Supreme Court of the territory of Oklahoma, in passing upon a question similar to the one in the case of Stanard v. Sampson, supra, held that a failure of the jury to sign the answers was fatal, and therefore their answers constituted no part of the verdict and could not be considered for any purpose; but this court, in the case of Stanard v. Sampson, supra, declined to follow the case of City of Kingfisher v. Altizer, and quoted with approval from the case of Northern Pacific R. Co. v. Urlin, 158 U.S. 271, 15 S. Ct. 840, 39 L. Ed. 977, the language of Mr. Justice Shiras, who wrote the opinion, as follows:

"The contention that the

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