Logan v. Logan, Case Number: 32389

• Court: Supreme Court of Oklahoma
• Writing for the Court: DAVISON, J.
• Citation: 197 Okla. 88,168 P.2d 878,1946 OK 145
• Decision Date: 30 April 1946
• Docket Number: Case Number: 32389
• Parties: LOGAN v. LOGAN et al.

1946 OK 145
168 P.2d 878
197 Okla. 88

LOGAN
v.
LOGAN et al.

Case Number: 32389

Supreme Court of Oklahoma

Decided: April 30, 1946

.Syllabus

¶0 1. APPEAL AND ERROR-Error in overruling motion to make more definite and certain not reviewed if not presented in motion for new trial.

Error of a trial court in overruling a motion to make more definite and certain is not an "error of law occurring at the trial" within the meaning of 12 O.S. 1941 § 651, subd. 8, and will not be reviewed on appeal if not presented to the trial court in a motion for a new trial.

2. APPEAL AND ERROR-Harmless error in admission of evidence.

A judgment will not be reversed for errors in the admission of testimony in the absence of a showing of prejudice to the appellant, and where other testimony of the same tenor was admitted without objection and it does not appear that the trial court incorrectly evaluated the testimony complained of, the error, if any. In admitting same does not constitute ground for reversal.

3. APPEAL AND ERROR-Overruling demurrer to plaintiff's evidence not ground for reversal where defendant did not stand on demurrer.

Where defendant interposes a demurrer to plaintiff's evidence and after said demurrer is overruled introduces his own evidence, the trial court's judgment will not be reversed on account of the alleged error in his ruling on the demurrer if the judgment is supported by the evidence as a whole.

4. DIVORCE-Equitable division of jointly acquired property.

A court of equity, on granting a divorce to either the husband or wife, is required by 12 O.S. 1941 § 1278 to make a just fair and equitable division of the property acquired by the parties jointly during their marriage, but in doing so is not required to divide it equally and is given a wide latitude in determining just what part shall be awarded each party.

Appeal from District Court, Kay County; Roy R. Carver, Judge.
Divorce action by Barto Logan against Jean Logan, J. E. Logan being made party defendant. From the judgment defendant Jean Logan appeals. Affirmed.

George W. Miller, of Ponca City, for plaintiff in error.
Charles D. Reed and Doggett & Doggett, all of Ponca City, for defendants in error.

DAVISON, J.

¶1 This appeal concerns an action between Barto Logan and Emma Eugenia Logan, otherwise known as Jean Logan, his wife, for a divorce and custody of said parties' minor daughter, Carolyn Jean Logan. Due to Barto's absence from the United States as a member of the United States Marine Corps, he wrote his father, J. E. Logan, to have the proceedings commenced, sending the father a personal check written on his and his wife's joint account in a Ponca City bank for the entire balance therein of $220.39. With $60 of this sum Mr. Logan paid the wife's attorney's fee and made an initial court cost deposit of $10. To the petition thereafter filed on behalf of Barto Logan, as plaintiff, a petition to make more definite and certain was filed, among other pleadings, on behalf of his wife, as defendant. After said motion was overruled, said defendant not only filed an answer and cross-petition against plaintiff asking that she be granted the divorce and custody of the child, but also named J. E. Logan as a defendant and filed a cross-petition against him seeking recovery of the sum withdrawn from the parties' joint bank account, as aforesaid.

¶2 At the trial thereafter had, Mrs. Logan interposed a demurrer to plaintiff's evidence, but when that was overruled and an exception allowed her to said ruling, she proceeded with the introduction of evidence in her own behalf. At the close of the trial the court entered judgment denying Mrs. Logan any recovery on her cross-petition against J. E. Logan; granting her a divorce on her cross-petition against plaintiff; and awarding her custody of the child only until September 1st of that year (1945) and the summer months of subsequent years with custody in the paternal grandparents, Mr. and Mrs. J. E. Logan, from September 1, 1945, to the end of the school term in May, 1946, and the school months of subsequent years. The decree also gave both plaintiff and defendant the right of visitation at reasonable times, "even to the extent of having custody . . . over Sundays occasionally," and reserved the right to reconsider the matter of custody upon application of either of the parties. The wife was also awarded all of the parties' furniture and real estate, consisting of two lots in Ponca City, together with the house trailer and improvements thereon.

¶3 From said judgment and decree, Mrs. Logan has perfected this appeal, naming both her former husband and her father-in-law as defendants in error. In the interest of clarity and brevity, the husband and wife, as principal parties to the action, will be referred to as plaintiff and defendant, respectively, and the father-in-law will be designated merely by name.

¶4 Defendant contends that the trial court erred in overruling her motion to make plaintiff's petition more definite and certain. -Her motion for a new trial, however, set forth only three assignments of error, as follows, to wit:

"1. That the judgment is not sustained by sufficient evidence and is contrary to law.

"2. Error of law occurring at the trial and excepted to by the defendant Jean Logan.

"3. Error of the court in overruling the demurrer of the defendant, Jean Logan, to the evidence of plaintiff."

¶5 Thus it will be seen that the only...