Moore v. Dobyns
| Decision Date | 19 December 1939 |
| Docket Number | 28903. |
| Citation | 97 P.2d 79,186 Okla. 273,1939 OK 556 |
| Parties | MOORE v. DOBYNS. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where, at the close of all the evidence, the defendant offers a demurrer to the evidence, the demurrer will be treated as a motion for a directed verdict.
2. On a demurrer to the evidence, offered by defendant at the close of all the evidence, the trial court must treat the evidence favorable to the party offering the demurrer as having been withdrawn.
3. Where plaintiff sued several makers of a note and defendants contend the same had been paid by execution of a second note to which one of the defendants was not a party, and that interest payments had been made upon the second note and said one defendant had no interest therein, and other defendants offered to confess judgment on such second note, and the evidence as to existence of the second note was in conflict it was error for the trial court to sustain a demurrer to plaintiff's evidence.
Appeal from District Court, Haskell County; Ben Belew, Judge.
Action by Dicy Moore, administratrix of the estate of Earl Moore deceased, against H. C. Dobyns and others to recover on a note, wherein Burl Moore was substituted as party plaintiff. From a judgment in favor of the named defendant, the plaintiff appeals.
Judgment reversed, and cause remanded with directions to grant a new trial.
E. O. Clark, of Stigler, for plaintiff in error.
Omar M. Hudson and Guy A. Curry, both of Stigler, for defendant in error.
This is an appeal from an order of the district court of Haskell county sustaining a demurrer to plaintiff's evidence, in an action brought to recover upon a promissory note.
March 23, 1935, Dicy Moore, administratrix of the estate of Earl Moore, sued the named defendants alleging that: April 19, 1919, defendants executed and delivered to Earl Moore their promissory note in the amount of $4,000, due November 1, 1919; August 13, 1926, Earl Moore died intestate and plaintiff was duly appointed administratrix and was holding the note; said note was past due, no interest having been paid after January 1, 1932; there was due and unpaid on said note the sum of $5,291.11, together with $400 attorneys' fees provided for in the note, for all of which plaintiff asked judgment.
Motions to make more definite and certain were sustained and plaintiff amended her petition. Defendants moved to make the amended petition state the date and amount of the alleged interest payments on said note and by whom paid, the motion being sustained in part. The second amended petition was filed alleging various payments, but did not state by whom paid. Defendants' demurrers were overruled and each filed separate answer. Burl Moore was substituted as party plaintiff and replies were filed to defendants' separate answers.
Defendant Dobyns thereafter filed amended answer admitting execution of the note in suit, but specifically denied the making of any payments thereon, and further alleged said note was paid on or before maturity, and pleaded the statute of limitations as to any claim against himself.
At the trial the following testimony was given by the parties. Dicy Moore, nee Clayton, testified she found the note sued upon in her husband's bank box, and interest was paid to her from time to time, but nothing had been paid on the principal. Burl Moore testified L. J. Lantz made interest payments to him, but nothing had been paid on the principal. Dobyns' demurrer to Burl Moore's testimony, on the ground it was not shown he had made any payments on the note, was overruled.
On cross examination Mrs. Dicy Moore, nee Clayton, testified: all payments had been made by L. J. Lantz, and Dobyns had made no payments personally from the time of her appointment in 1926, and that she had never called upon him for any payments; the first time she made any claim upon Dobyns was in 1932 when she told L. J. Lantz Dobyns was a signer of the note, which Lantz denied. Further, she found no other note when going through the deceased's effects after his death; that Elmer Lantz was not on any note and no other note was ever made or she would have known about it.
L. J Lantz testified he had made interest payments, but not upon the note sued upon, but upon a note signed by himself, McDaniel and Elmer Lantz in the amount of $4,000; that he had never talked to Dobyns concerning payments on any note to Earl Moore. Further, that he, McDaniel and Elmer Lantz made payments through the Lantz Motor Company, but not upon the note in suit. To support this testimony the records of the corporation were introduced, showing yearly credits to the Moore account and charges against the respective accounts of L. J. Lantz, J. P. McDaniel and Elmer Lantz. Lantz also testified he did not learn these payments were being credited upon the note in suit until 1932, and that he had not seen this note from the time it was executed until about 1933, Lantz denied...
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