Miller's Estate Geren v. Storie

• Decision Date: 26 April 1938
• Docket Number: Case Number: 28180
• Citation: 78 P.2d 819,182 Okla. 534,1938 OK 289
• Parties: In re MILLER'S ESTATE GEREN v. STORIE, Adm'r, et al.
• Court: Oklahoma Supreme Court

1938 OK 289

78 P.2d 819

182 Okla. 534

In re MILLER'S ESTATE

GEREN v. STORIE, Adm'r, et al.

Case Number: 28180

Supreme Court of Oklahoma

Decided: April 26, 1938

Syllabus

¶0 1. JUDGES - Litigant's Waiver of Right to Disqualify Judge by Failure to Proceed by Application for Disqualification Under Statute.

A litigant who, prior to trial, is aware of the circumstances indicating bias and prejudice on the part of the trial judge, and fails to proceed by application for the judge's disqualification as provided by section 2915, O. S. 1931, 22 Okla. St. Ann. sec. 575, is deemed to have waived the particular objection, unless the alleged disqualification clearly infringes the interest of public policy.

2. SAME - Right to Disqualify Judge for Bias in Particular Case a Personal Privilege Which May Be Waived.

The manifestation on the part of the trial judge of personal aversion to a particular cause of action or defense, if a ground for disqualification, is one purely of personal concern to, and may be waived by, the aggrieved party.

3. JURY - Right to Jury Trial not Given by Statute in Trial De Nova in District Court on Appeal From Order of County Court Determining Heirship as Incident to Final Distribution of Estate.

A trial de novo in district court on appeal from an order of the county court determining heirship as an incident to final distribution of a decedent's estate is a proceeding equitable in nature as provided by section 1412, O. S. 1931, 58 Okla. St. Ann. sec. 735, and is not triable to a jury as a matter of right.

4. APPEAL AND ERROR - Court's Failure to Make Requested Special Findings and Conclusions Should Be Excepted to and Incorporated in Motion for New Trial.

Where a request is made for special findings of fact and conclusions of law, and the court at the time judgment is rendered fails to make the special findings as requested, it is the duty of the party making the request to except to the failure of the court to make such findings, and to incorporate in the motion for new trial such failure.

5. APPEAL AND ERROR - Error not Predicable on Reception of Incompetent Evidence in Trial to Court Where Evidently Such Evidence Was not Considered.

In a cause tried to the court without a jury, error cannot be predicated upon the reception of incompetent evidence where the court clearly indicates that such evidence was not considered.

6. SAME - Necessary Showing for Prejudicial Error in Admission of Incompetent Evidence.

In cases tried to the court, where complaint is made that incompetent evidence was admitted, unless it is shown and clearly pointed out wherein such incompetent evidence was clearly considered and used by the court in arriving at its judgment, no reversible error is presented, unless it can be said upon the whole case, that there was not competent evidence in the record reasonably tending to support the judgment based thereon.

7. MARRIAGE - General Reputation as to Common-Law Marriage Founded Upon Hearsay Evidence.

General reputation of the existence or nonexistence of a common-law marriage is founded upon hearsay evidence.

8. DESCENT AND DISTRIBUTION - District Court Judgment on Appeal From Order of County Court Determining Heirs on Final Distribution of Estate not Disturbed Unless Against Clear Weight of Evidence.

Judgment of district court after trial de novo on appeal from order of county court determining heirs on final distribution of decedent's estate will not be disturbed unless against the clear weight of the evidence; the holding in Re Graham's Estate, 169 Okla. 568, 37 P.2d 964, so far as the same may be in conflict herewith, is overruled.

9. EVIDENCE - Weight of Evidence - Testimony Undisputed but Containing Inherent Improbabilities and Contradictions.

Although testimony of a witness may be uncontradicted and unimpeached by other positive evidence, where such testimony in itself contains inherent improbabilities and contradictions sufficient to satisfy the court or jury of its falsity, it may be disregarded.

Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.

Proceedings for the determination of heirship and final distribution of the estate of James A. Miller, deceased; Ada M. Geren, plaintiff, against Robert Storie and others, defendants. Judgment for defendants, and plaintiff appeals. Affirmed.

M.L. Hankins, for plaintiff in error.

Willingham & Farris, for Robert Storie.

Ralph L. Schaller, for defendants in error William Alexander Miller, Mary Jane Miller Drake, Rebecca A. Smith, Samuel A. Smith, Lewis M. Smith, Jr., and Charles A. Smith.

GIBSON, J.

¶1 This is a proceeding to determine heirship as incident to final distribution of a decedent's estate. Section 1358. O. S. 1931, 58 Okla. St. Ann. sec. 631.

¶2 Robert Storie, as administrator of the estate of James A. Miller, deceased, filed his final account and petition for distribution in the county court of Oklahoma county, whereupon the plaintiff in error, Ada M. Geren, intervened claiming to be the widow of deceased by virtue of a common-law marriage, and as such entitled to all his estate to the exclusion of his collateral kindred who are named herein as defendants in error along with said administrator. The intervener's petition was denied in county court, and that judgment was affirmed by the district court on appeal. The judgment of the district court is here for review. The parties in error will be referred to herein as plaintiff and defendants, respectively.

¶3 After plaintiff had lodged her appeal in district court, the county court, presuming to act pursuant to section 1081, O. S. 1931, 58 Okla. St. Ann. sec. 710, appointed counsel to represent the defendants, who were nonresidents and who had been suggested by the administrator as heirs of the deceased. On appeal the district court confirmed the appointment, or reappointed counsel.

¶4 This action of the trial court is assigned as error. The assignment is accompanied with the argument that the court was not authorized to make such appointment where the question of heirship remains in dispute and undetermined, and in this connection it is urged that the court in appointing counsel for alleged heirs prejudged the question of heirship, thus manifesting an unfair attitude and prejudiced disposition toward plaintiff's claims sufficient to constitute an unfair trial.

¶5 Said section 1081 provides that the court, at or before the hearing of a petition of this character, may, "in its discretion, appoint some competent attorney at law to represent in all such proceedings the devisees, legatees, heirs, or creditors of the decedent, who are minors and have no general guardian in the county, or who are nonresidents of the state, and those interested, who, though they are neither such minors or nonresidents, are unrepresented." The section then provides for the allowance of counsel fee and the source of payment. The legality of such fee is not in question on this appeal. Neither the amount thereof nor the source of its payment is discussed. The assignment merely alleges that the action of the court in appointing an attorney for parties who were not admittedly heirs was sufficient to show that the judgment of the court on the question of heirship was actuated by bias and prejudice against the plaintiff. Plaintiff says the court is authorized to appoint counsel only for those parties who are admittedly heirs and entitled in any event to share in the estate. But plaintiff fails to suggest any substantial reason why the statute should be so restricted in its application. It grants discretionary powers; the court may "in its discretion" appoint counsel for "heirs." If in making the appointment the court clearly abuses its discretion, such abuse might, under the particular circumstances of the case, constitute some indication of bias on the part of the court sufficient upon proper application to require his disqualification, which, if the court declined, and if not waived by the complaining party, might, upon proper presentation for review, constitute reversible error.

¶6 But plaintiff concedes that the court's appointment of counsel was proper except for the fact that the defendants were not admitted heirs. Upon that point we make no decision. Assuming, but not deciding, that the district court was unauthorized to make the appointment or to recognize counsel appointed in county court, we are aware of no decision where that act alone was held sufficient to warrant a reversal of the cause. Plaintiff cites no authority, and says there is none. But plaintiff insists that the act of the court revealed bias and prejudice in favor of the defendants and against her.

¶7 Where the bias and Prejudice of a trial judge first becomes evident in the rendition of judgment in a cause tried without a jury, and too late to permit of a request for disqualification as required by statute, the alleged bias and prejudice, if shown to have entered into the judgment to the apparent detriment of the unsuccessful party, may constitute grounds for reversal. See Taylor v. Harmon, 120 Okla. 145, 250 P. 887, 890. However, where a litigant, at any time before a cause tried to the court stands for judgment, is aware of the particular circumstances from which the bias and prejudice of the trial judge may be or become manifest, he should proceed under the statute (secs. 2911, 2915, O. S. 1931, 22 Okla. St. Ann. secs. 571, 575) to suggest the judge's disqualification. The procedure, under proper circumstances, may be by mandamus, or the party may object and save his exceptions to the overruling of his petition for disqualification and proceed with his cause, and thus save the question for review. In any event, the complaining party must proceed by application to the court as provided by statute, supra. If this is not done, the litigant is deemed to have waived the question (State v. Davenport, 125 Okla. 1, 256 P. 340), unless the circumstances are such that the demands of public policy would require...