Herron v. M. Rumley Co.
| Decision Date | 11 July 1911 |
| Citation | 116 P. 952,29 Okla. 317,1911 OK 267 |
| Parties | HERRON v. M. RUMLEY CO. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
The amending of pleadings vel non, when not changing the cause of action, rests within the sound discretion of the trial court whose action will not be disturbed on appeal unless such discretion appears to have been abused.
The husband is incompetent to testify for against his wife except concerning transactions in which he acted as her agent, or when they are joint parties and have a joint interest in the action. (a) The husband in no case, however can testify concerning any communication made by his wife to him during the marriage, whether called while that relation subsisted or afterwards.
Evidence excluded will not operate as reversible error, unless it affirmatively appears to have been material under the issues framed.
The action of the court in excluding evidence will not operate as a reversible error, when the record affirmatively shows that such evidence was afterwards admitted and received for the consideration of the jury.
A party seeking to set aside a written instrument on the ground of fraud assumed the burden of proving the same by clear positive, and convincing evidence.
(a) A person signing an instrument is presumed to know its contents.
(Additional Syllabus by Editorial Staff.)
Under Comp. Laws 1909, § 5677 (St. 1893, § 4015), providing that at any time within 10 days after a demurrer is filed the adverse party may amend of course on payment of costs accrued since filing the defective pleading, and Comp. Laws 1909, § 5679 (St. 1893, § 4017), authorizing the court, on such terms as may be proper, to amend any pleading, when the amendment does not substantially change the claim on defense, the court is not only authorized to permit an amendment, but may require the payment of accrued costs as a condition thereto.
Error from District Court, Woodward County; R. H. Loofbourrow, Judge.
Action by the M. Rumley Company against Millie P. Herron. From a judgment for plaintiff, the defendant brings error. Affirmed.
Charles R. Alexander, for plaintiff in error.
Charles Swindall, for defendant in error.
1. The question of the amending of the pleadings was within the sound discretion of the trial court. Its action thereon will not be disturbed on review here unless such discretion appears to have been abused. Alcorn et al. v. Dennis, 25 Okl. 135, 105 P. 1012.
The court offered to permit the defendant (plaintiff in error) to amend her answer on condition that she pay, or cause to be paid, the accrued costs. This she failed or declined to do. Section 5677, Comp. Laws 1909 (section 4015, Stat. Okl. Ter. 1893), provides: Section 5679, Comp. Laws 1909 (section 4017, Stat. Okl. Ter. 1893), also provides: "The court may, before or after judgment, in furtherance of justice, and on such terms as may be proper, amend any pleading, process or proceeding by adding or striking out the name of any party, or correcting a mistake in the name of a party, or a mistake in any other respect, or by inserting other allegations material to the case, or conform the pleadings or proceedings to the facts proved, when such amendment does not change substantially the claim or defense; and when any proceeding fails to conform, in any respect, to the provisions of this Code, the court may permit the same to be made conformable thereto by amendment." Under section 5679, the court was not only authorized to permit this amendment, but also by section 5677 it was empowered to require the payment of accrued costs as a condition to the amending of said pleadings. As to whether, under any given state of facts, it would be an abuse of discretion to require the accrued costs to be paid as a condition to being permitted to amend, it is not essential here to determine, for there is no showing, or any attempt to make a showing, that the plaintiff in error was not able to pay, or cause to be paid, such costs.
2. As to the alleged error in that the court did not permit the husband of the plaintiff in error to state what the agent of the defendant in error represented to her at the time the alleged mortgage was executed, under the status of the record no prejudicial error was committed. Section 5842, Comp. Laws 1909 (section 4213, Stat. Okl. Ter. 1893), provides "The following persons shall be incompetent to testify: *** (3) Husband and wife for or against each other, except concerning...
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