Martin v. Gassert

• Decision Date: 05 September 1906
• Citation: 87 P. 586,17 Okla. 177,1906 OK 60
• Parties: MARTIN et al. v. GASSERT.
• Court: Oklahoma Supreme Court

87 P. 586

17 Okla. 177, 1906 OK 60

MARTIN et al. v. GASSERT.

Supreme Court of Oklahoma

September 5, 1906

Syllabus by the Court.

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.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2916, 2917.]

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.

[Ed Note.-For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2979.]

Error from District Court, Noble County; before Justice Bayard T. Hainer.

Action by Charles Gassert against C. W. Martin and Ida F. Martin. Judgment for plaintiff, and defendants bring error. Affirmed.

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, Okl. The defendants in the court below claim that the plaintiff in that court, at the time of said transaction, represented to them that the said goods were marked at the wholesale cost price, and were of the reasonable value of $1,736. 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.

Doyle & Cress, for plaintiffs in error.

Wrightsman & Diggs, for defendant in error.

IRWIN J.

The counsel for plaintiffs in error in their assignments of error urge for a reversal of this case: (1) 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 reserved. (2) 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. (3) For the reason that the decision of the court is contrary to the evidence. (4) For the reason that the decision of the court is contrary to the law. (5) For errors of law occuring at the trial, and duly excepted to at the time. (6) 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.

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 169 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. In the case of Bartlett v. Feeney, 11 Kan. 594, 602, cited by Judge Valentine in the case of Eddy v. Weaver (Kan. Sup.) 15 P. 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. In the case of Hill v. First Nat. Bank, 22 P. 324, the Supreme Court of Kansas says: "In order to have the question of whether the evidence supports the finding and judgment examined, the case-made should show that it contains all the evidence. A statement to that effect in the certificate of the district judge settling the case is insufficient." In the case of Ryan v. Madden et al., reported in 26 Pac., at page 680, the Supreme Court of Kansas say, in the body of the opinion: "We also find there is considerable testimony in the record which follows the certificate of the stenographer. A statement is included in the certificate of the judge who settled the case to the effect that the case contains all the evidence that was introduced on the trial; but such statement was improperly included in the certificate, and is ineffectual to accomplish the purposes intended"-citing Eddy v. Weaver, 37 Kan. 540, 15 P. 492; Hill v. Bank, 42 Kan. 364, 22 P. 324. Continuing, the court in the opinion says: "The first recital in the case-made, to the effect that the case includes the evidence offered by each party before they rested, necessarily excludes that which was afterwards introduced. This was evidently deemed to be insufficient by the plaintiff in error, as he attempted to supplement it by the certificate of the official stenographer, and later by another certificate of the judge. We conclude that the record fails to properly show that all the evidence is preserved, and hence, under the authorities cited, we cannot say that the verdict is without support."

We have carefully examined this case-made, and we find, except as contained in the certificate of the attorneys, the stenographer, and the trial judge, that it contains no statement to the effect that it contains all the evidence introduced on the trial. Now, we take it that the reason that the certificate of the trial judge is not sufficient to cure this defect is based upon the fact that it is no part of the duty of the trial judge to supply any of the facts contained in the recitals necessary in the case-made. His only duty is to see that the facts stated and the recitals made in the case-made are correct. His only duty is to certify that the matters and things alleged in the case-made are correctly stated. It is no part of his duty to go beyond this certificate and insert statements of facts not contained in the case-made at the time the same is presented and served upon the opposite counsel. Now, when a case-made is served upon opposing counsel and examined by them, it is a matter entirely immaterial to them whether it contains all or only a part of the evidence. They might accept service of it, knowing that it did not contain the allegation that all the evidence taken at the trial was included therein, and when the same has been presented to the opposing counsel, and served upon them, then the only purpose in presenting it to the court is that he may certify that the things therein contained are correctly stated, and it is no part of his duty to insert in that certificate that it does, or does not, contain all the evidence taken at the trial, unless the case-made, as prepared and served upon the opposite counsel, contains that statement.

Such seems to be the conclusion reached by the Kansas Supreme Court in the case of Brown v. Johnson, 14 Kan. 377 where the court says: "The signature of a judge to a case-made or bill of exceptions, imports the truthfulness of the preceding statements in such case or bill-nothing more; and we must look to those statements to see whether all the testimony is preserved or not." And in the case of Eddy v. Weaver (Kan. Sup.) 15 P. 492-497, it is said: "Where a case, when it is served upon the adverse party, does not purport to contain all the evidence, he has no further interest in the matter than to know that...