Homeland Realty Co. v. Robison

Decision Date11 November 1913
Docket NumberCase Number: 2934
PartiesHOMELAND REALTY CO. v. ROBISON.
CourtOklahoma Supreme Court
Syllabus

¶0 1. APPEAL AND ERROR--Record--Appeal by Transcript. Unless an alleged error appears in the record proper, it cannot be considered in an appeal by transcript.

2. SAME--Necessity of Bill of Exceptions or Case-Made. Errors of law occurring at the trial must be presented for review in this court, by incorporating same into a bill of exceptions or case-made.

3. JUDGMENT--Recitals as to Reasons for Directed Verdict. Ordinarily the reasons which may have influenced a court to direct the verdict of a jury have no place, and perform no function, in a formal journal entry of the judgment based on the verdict of the jury.

4. TRIAL--Direction of Verdict--State of the Evidence. Whether or not a court is justified in directing a verdict in a particular case depends upon the state of the evidence at the time of such action.

5. APPEAL AND ERROR--Review--Reasons for Decision. If a court directs a jury to return a verdict for plaintiff in a case, and such action was proper under the evidence, the action will be sustained, even though the court gives a wrong reason for the course taken.

6. SAME--Presumption. Where the evidence and the record of the proceedings occurring at the trial of the cause are not brought to this court for review, and all that is before this court are the pleadings, findings, judgments, and motions made after judgment, the presumption is that all the proceedings of the trial court are regular, that evidence was introduced without objection sufficient to support the findings of the court, and that the pleadings were treated as amended, where the case is one in which an amendment is proper.

7. SAME--Amendment Regarded as Made. Though there be a variance between the allegations of a petition and the facts proven without objection at the trial, yet, if it is a case where an amendment to conform to the proof should have been allowed, the judgment will not be reversed solely because of such variance.

8. TRIAL--Direction of Verdict--When Required. Where plaintiff introduces sufficient evidence to prove his case, and defendant's evidence does not conflict therewith, or where, considered in its most favorable light, with all legitimate inferences in its favor, it fails to present a defense, the court should direct a verdict for plaintiff.

Allen & Nichols, for plaintiff in error.

Roach & Bradley, for defendant in error.

BREWER, C.

¶1 This appeal is prosecuted on a transcript of the record duly certified. Two specifications of error are urged in the brief as follows:

"(1) Said court erred in instructing the jury to return a verdict for defendant in error, and not permitting said issue to be determined by the jury, for the reason that the recovery asked for by defendant in error was for money only. (2) Said court erred in finding that the pleadings in said cause and the facts showed the issue to be joined by the parties herein upon a written contract, when the theory of the attorneys for both the plaintiff in error and defendant in error was that the pleadings joined the issue upon an oral contract, and defendant in error had pleaded an oral contract, which had been denied by plaintiff in error, and the proof of plaintiff in error all went to the denial of an oral contract."

¶2 The first assignment of error is clearly unavailable to appellant, for the reason that the proceedings of the court and matters occurring at the trial, together with the evidence heard, are not brought here in such a way as to be considered by the court; in fact, none of the evidence is before us. From an examination of the transcript, it does appear that evidence was submitted, and that at the close of same the jury returned a verdict in favor of the defendant in error by direction of the court. The evidence not being before us, we cannot consider whether the court acted correctly or not. Unless an alleged error appears in the record proper, it cannot be considered in an appeal by transcript. Tribal Development Co. v. White Bros., 28 Okla. 525, 114 P. 736. Errors of law occurring at the trial must be presented for review in this court by incorporating same into a bill of exceptions or case-made. Menten v. Shuttee, 11 Okla. 381, 67 P. 478; McCarthy v. Bentley, 16 Okla. 19, 83 P. 713; Green v. Yeager, 23 Okla. 128, 99 P. 906; St. L. & S. F. R. Co. v. McCollum, 23 Okla. 899, 101 P. 1120; McCoy v. McCoy, 27 Okla. 371, 112 P. 1040; Ballinger v. Von Weise, 32 Okla. 114, 121 P. 250. We do not exactly understand what the appellant means in this assignment of error, when he gives as a reason why it ought to be sustained "that the recovery asked for by the defendant in error was for money only," unless it be to point out that such causes are friable by a jury. Section 5785, Comp. Laws 1909 (Rev. Laws 1910, sec. 4993). The recovery allowed was for "money only," and it is certainly the law that, where plaintiff introduces sufficient evidence to prove his case, and defendant's evidence does not conflict therewith, or where the evidence of the defendant, considered most favorably to him, together with all legitimate inferences that may be drawn from it, utterly fails to present a defense, the court should direct a verdict for the plaintiff. Moore v. First Nat. Bank, 30 Okla. 623, 121 P. 626; Neeley v. Southwestern Cotton Oil Co., 13 Okla. 356, 75 P. 537, 64 L.R.A. 145, and authorities cited in these cases. The second assignment grows out of a claim that there was a fatal variance between the evidence and the pleadings. This is predicated on a statement made by the court and incorporated in the journal entry of judgment by a nunc pro tunc entry, made July 15, 1911, correcting the original judgment of December 6, 1910. This statement seems to be for the purpose of explaining why the court directed a verdict in the case. Ordinarily the reasons which may have influenced a court to direct the verdict of a jury have no place, and perform no office, in a formal journal entry of a judgment based on the verdict of a jury. The right of the court to direct a verdict depends upon the state of the evidence when such action is taken. And, if such action was proper, it would be sustained, even though the court might give a wrong reason for the course taken. Leahy v. I. T. Illuminating Oil Co., ante, 135 P. 416; Hodgins v. Hodgins, 23 Okla. 625, 103 P. 711; 3 Cyc. 221, and notes and cases cited; Hancock v. Youree, 25 Okla. 460, 106 P. 841. The nunc pro tunc order referred to must have been allowed for the sole purpose of bringing into the record the reasons for directing a verdict, after it became impossible to appeal by case-made, and thus have reviewed this action of the court. This statement of the court is as follows:

"That this cause proceeded upon the theory of the attorneys, both for the plaintiff and the defendant, that the pleadings joined the issue between the parties upon an oral contract; but the court further finds that the pleadings themselves and the facts show the issue to be joined upon a written contract, the principal of which was paid and the interest on which still remained and now remains unpaid in the sum of $ 718.85, with accrued interest on said amount from the 13th day of February, 1908, said accrued interest being in the sum of $ 125.06. The court further finds that the defense in this cause goes entirely to the denial of an oral contract for said amount; that the question of agency as raised in said pleadings in making said oral contract is immaterial for the reason, above mentioned, that said facts disclose that the recovery herein should be on a written contract. The court further finds that no defense to said written contract and interest due thereon has been made by defendants, and, upon the motion of plaintiff for a peremptory instruction in his favor, the court instructed the jury to render a verdict in favor of the plaintiff, and the following verdict was rendered by the jury," etc.

¶3 We have examined all the written contracts in this case in the light of the pleadings, and we believe it to have been possible to have based the recovery on...

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