Martin v. Gassert

• Court: Supreme Court of Oklahoma
• Writing for the Court: IRWIN, J.
• Citation: 17 Okla. 177,87 P. 586,1906 OK 60
• Decision Date: 05 September 1906
• Parties: C. W. MARTIN, AND IDA F. MARTIN v. CHARLES GASSERT.

1906 OK 60
87 P. 586
17 Okla. 177

C. W. MARTIN, AND IDA F. MARTIN
v.
CHARLES GASSERT.

Supreme Court of Oklahoma

Decided: September 5, 1906

Syllabus

¶0 1. CASE MADE--Must Contain What. Where a case is brought to this court for review, and it is sought to reverse the judgment of the district court on a question of fact, and on the grounds that the evidence in the court below did not reasonably tend to support the judgment of the court, the case made must contain the positive averment, by way of recital, that it contains all the evidence submitted or introduced on the trial of the case, and such recital cannot be supplied by the certificate of counsel, or of the stenographer, or the certificate of the trial judge, and where such case made does not contain such recital in positive terms, this court will not review any question depending entirely upon the facts for its determination.

2. SAME--Motion for New Trial. Where the appellant fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented to this court to review error alleged to have occurred during the progress of the trial in the court below.

STATEMENT OF FACTS.

This was an action brought by the defendant in error on three promissory notes, and for the foreclosure of a real estate mortgage. Said notes being given as a part consideration for the purchase of a stock of merchandise located in the town of Morrison, Noble county, Oklahoma. The defendant in the court below claims that the plaintiff in that court at the time of said transaction represented to him that the said goods were marked at the wholesale cost price, and were of the reasonable value of $ 1736.00. It is also claimed that said misrepresentations were false as to the marking of said goods, and as to the value thereof, and were known to be false by the plaintiff at the time the same were made, and the defendants set up as a defense, fraud and misrepresentation. It is also alleged that defendants, on discovering said fraud, offered to return to said plaintiff said goods, and demanded a return of the consideration. All of which the plaintiff in the court below refused. On the trial of the cause in the court below, the defendants admitted the execution of the notes, but pleaded in defense fraud and deceit, and want of consideration. The court held the burden of proof was on the defendants to establish their proof as set forth in their answer as a defense to the notes in question. Thereupon the plaintiffs in error introduced their evidence to prove the allegations of said answer, to which said evidence the defendant in error at the close thereof interposed a demurrer, the cause having been tried to the jury, which demurrer was by the court sustained. The jury was discharged, and judgment rendered against the plaintiffs in error. Motion for a new trial was filed in due time, overruled, and exceptions saved, and the case is brought here for review.

Error from the District Court of Noble County; before Bayard T. Hainer, Trial Judge.

Doyle & Cress, for plaintiffs in error.

Wrightsman & Diggs, for defendant in error.

IRWIN, J.:

¶1 The counsel for plaintiffs in error in their assignments of error urge for a reversal of this case:

First: The district court committed error of law in the trial of the case by excluding competent testimony which was offered by plaintiffs in error, rejected, and exceptions preserved.

Second: Error of the court in sustaining said demurrer of the plaintiff to the evidence of the defendants below, plaintiffs in error here, to which the plaintiffs in error excepted.

Third: For the reason that the decision of the court is contrary to the evidence.

Fourth: For the reason that the decision of the court is contrary to the law.

Fifth: For errors of law occurring at the trial and duly excepted to at the time.

Sixth: That the court committed error in withdrawing said cause from the consideration of the jury, to which plaintiffs in error at the time duly excepted.

¶2 The questions presented on appeal to this court involve a consideration of all the evidence, the questions being as to the rightfulness of the judgment of the trial court in sustaining the demurrer to the evidence of the plaintiffs in error, and in rendering judgment against them. These assignments of error we think cannot be considered by this court, for the reason that the questions presented on this appeal involve a consideration of all the evidence, and there is nowhere in the case made the recital that it contains all the evidence introduced on the trial of the case. At page 156 of the case made there is found a certificate of the stenographer which states this fact. At page 165 is found a similar certificate made by the attorneys for the plaintiff in error, and at page 172, the statement is included in the certificate of the trial judge, that the record contains all the evidence in the case. But the repeated holdings of the Kansas supreme court, both before and after our adoption of their statute, are to the effect that such certificates are not sufficient, and that such statements must be in the nature of a positive recital in the case made itself, and that this defect cannot be supplied by any certificate either of the attorneys, the stenographer, or the trial judge.

¶3 In the case of Bartlett v. Feeney, cited by Judge Valentine in the case of Eddy v. Weaver, 15 P. 492 at 492-496; it was held that under the circumstances of that case, the statement of a fact which was not inserted in the case made, nor entered in the proceedings of the court, but which was merely certified to by the judge at the time of settling and signing the case, would not be considered by the supreme court.

¶4 In the case of Hill v. First National Bank, 22 P. 324; the supreme court of Kansas, says:

"In order to have the question of whether the evidence supports

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