James v. Coleman
| Citation | 1917 OK 324,166 P. 210,64 Okla. 99 |
| Decision Date | 19 June 1917 |
| Docket Number | Case Number: 5940 |
| Parties | JAMES v. COLEMAN et al. |
| Court | Supreme Court of Oklahoma |
¶0 1. Appeal and Error--Motion for New Trial--Opinion of Court Below. Where upon motion for new trial in a case tried before a referee, the court sustains the motion and grants a new trial, and at the time of passing on said motion delivers an oral opinion stating the reasons upon which the motion is sustained, said remarks of the court cannot operate to prevent the Supreme Court reviewing the entire record in order to determine whether said new trial was properly granted for reasons other than those stated by the court.
2. Reference--Report--Exception. Prior to the taking effect of section 5033, Rev. Laws 1910, where by oral consent of the parties made in open court and entered on the journal a case was referred to a referee with directions to make findings of fact and conclusions of law and report the evidence taken before him, the evidence taken by the referee and returned with his report became a part of the record in the case, and it was not necessary to file exceptions to the report or motion for new trial with the referee, but it was the proper practice to file same with the court upon the coming in of the report and within three days from the filing thereof.
3. New Trial--Procedure--Findings of Fact. Where a motion for new trial is sustained and the report of a referee entirely set aside, the effect of the order is to grant a new trial, and it is erroneous for the court to make other findings of fact and render judgment thereon.
4. Appeal and Error--Discretion of Trial Court--Grant of New Trial. The granting of a new trial rests so much in the discretion of the trial court that the Supreme Court will not reverse such an order unless it is made to clearly appear that the trial court has erred in respect to some pure, simple, and unmixed question of law, and unless it can be seen that but for such error a new trial would not have been granted.
5. Appeal and Error--Case-Made--Evidence. The Supreme Court will not review questions which require an examination of the evidence where the case-made does not contain the evidence taken in the trial court.
6. Reference--Discretion of Trial Court--Refusal to Send Case Back to Referee. It was within the discretion of the trial court when sustaining a motion for new trial, to deny a request to send the case back to the referee with directions to make additional findings.
W. H. Kornegay, Ollie Mason, and Verne Thompson, for plaintiff in error.
H. W. Currey and Asp, Snyder, Owen & Lybrand, for defendants in error.
¶1 The plaintiff in error has printed in his brief a lengthy statement of the trial judge, delivered orally at the time of passing upon the motion for new trial, together with the report of the referee and the petition in error, and this is all of the record which he has included in his abstract. There is a brief recital in narrative form of the history of the case, which merely sets out the various steps taken in the settlement of the issues and the order referring the case to a referee. The exceptions to the referee's report and the motion for new trial are omitted. There were 2,257 pages of typewritten evidence and exhibits, all of which was reported to the court by the referee, but none of which is included in the case-made or in the abstract of counsel. Upon the incoming of the report and on the same day it was filed, January 22, 1913, defendants filed exceptions thereto, making 20 specific exceptions to the referee's findings of fact, some of which challenged the sufficiency of the evidence to support the findings, charged the findings to be insufficient to support any judgment against any of the defendants, and charged a long list of errors by the referee in the trial before him, and particularly charging that the referee, after receiving and considering a large amount of testimony, had entered an order striking out the same and had thereafter based his findings of fact upon this evidence which was stricken. At the same time, defendants filed their motion for new trial, including therein all the statutory grounds for a new trial, except the second, third, seventh, and ninth, and particularizing in several different grounds their objection to the sufficiency of the evidence to support the findings of the referee and to support any judgment at all against the defendants These exceptions and this motion were heard and considered by the court, and on the 4th day of July there was entered an order upon the journal sustaining defendants' exceptions and motion for new trial. The court orally made an extended statement of his views. The plaintiff in error, at the time of preparing the case-made, included therein this lengthy statement, which the trial court caused to be stricken out, and thereafter, upon application to this court, same was ordered included therein and made a part of the case-made. The plaintiff in error has based practically his entire argument on the statement of the trial judge in passing on the motion for a new trial as incorporated in the case-made, and his assignments of error are in the main based on this statement. The practice of inserting in a case-made matters of this kind which are of no importance and which cannot be considered by this court was condemned in the case of Guss v. Nelson, 14 Okla. 296, 78 P. 170, where it was held that the findings of fact and conclusions of law of the trial court were contained in the journal entry, and not in such oral statement, which could not be considered to control the recitals of the formal entry upon the journal. The same proposition was again stated in Gates v. Settler's, etc., Reservoir Co., 19 Okla. 83, 91 P. 856, where it was stated that the Supreme Court will only look to the record as embraced in the entry upon the journal. Both these decisions were rendered prior to the admission of the state, since which time we know of no expression by this court upon the subject. In view of this fact, we have made an extended investigation of this question, and we find that the two opinions cited are in harmony with the authorities throughout the country, and are satisfied that the rule is a salutary one and should not be disturbed. If the rule were otherwise, the Supreme Court, upon appeal, would be limited to a consideration of the reasons given by the trial court for the order made, even if the record should disclose more than one good and sufficient reason upon which the order might possibly be based. The trial court could not, by stating in its order that a new trial should be granted for one reason and denied upon others, deprive a party of the right to review of the entire record, where an order sustaining a motion for new trial is appealed from, nor thus limit the jurisdiction of this court upon such appeal to a consideration of the reasons stated. Upon an appeal from such an order, the court will review the entire record, and if the order was properly made, even though a wrong reason was given therefor, the same will be sustained. Ryan v. Bridge Co., 7 Kan. 207; Howell v. Pugh, 25 Kan. 96; Graefe v. St. Louis Transit Co., 224 Mo. 232, 123 S.W. 835; Hewitt v. Steele, 118 Mo. 463, 24 S.W. 440; State ex rel. Hartman v. Thomas, 245 Mo. 65, 149 S.W. 318; Morgan v. Robinson, 157 Cal. 348, 352, 107 P. 695; Ben Lomond Wine Co. v. Sladky, 141 Cal. 619, 75 P. 332; Morrow v. St. Paul City Ry. Co., 65 Minn. 382, 67 N.W. 1002; Rochester v. Seattle Ry. Co., 75 Wash. 559, 135 P. 209; Langley v. Devlin, 87 Wash. 592, 151 P. 1134; Reno, etc., Co. v. Westerfield, 26 Nev. 332, 67 P. 961, 69 P. 899; Winnicott v. Orman, 39 Mont. 339, 102 P. 570; Menard v. Montana Cent. Ry. Co., 22 Mont. 340, 56 P. 592; Vincent v. Ellis, 116 Iowa 609, 88 N.W. 836; Lawrence v. Oglesby, 178 Ill. 122, 52 N.E. 945; Grand Central Min. Co. v. Mammoth Min. Co., 29 Utah 490, 83 P. 648. The judgment of the court sustaining the motion for a new trial is general in its terms, and does not specify any particular reason therefor or base the order upon any one or more grounds of the motion. The brief of plaintiff in error does not apprise us of the grounds urged for a new trial nor of the exceptions taken to the report of the referee; but, as we learn from the brief of defendant in error that said motion embraced grounds which would require an examination of the record made during the trial before the referee in order to pass upon the correctness of this ruling, and would require us to review and weigh the evidence in order to determine whether it was sufficient to support the findings of fact made by him, which we are unable to do because the evidence is not included in the case-made and brought up for our consideration (Inc. Town of Stigler v. Wiley, 36 Okla. 291, 128 P. 118; Wagester v. Cosmopolitan Fire Ins. Co., 38 Okla. 52, 132 P. 142; Worrell v. Fellows, 39 Okla. 769, 136 P. 750; Washington County Abstract Co. v. Harris, 48 Okla. 577, 149 P. 1075; Hoyt Shoe Co. v. Cuff, 46 Okla. 178, 148 P. 695), therefore we cannot determine whether the action of the trial court was correct or not, and under these circumstances there is nothing for us to do but to affirm the order appealed from if the motion for new trial was properly filed. The order of reference required the referee to make findings of fact and conclusions of law and report all the evidence taken before him. This being the terms of the order, the evidence returned by the referee in accordance therewith became a part of the record by virtue of the order of court, and it was not necessary for defendants to file exceptions to the report or a motion for new trial before the referee, but it was the proper practice to file same with the court after the coming in of the report and within three days from the filing thereof. First Nat. Bank v. Okla. Nat. Bank, 29 Okla. 411, 118 P. 574; Geary Mill & Elevator Co. v. Lane, 45 Okla. 21, 144 P. 1029...
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