Mount v. Schulte

• Decision Date: 28 September 1943
• Docket Number: Case Number: 30798
• Citation: 1943 OK 298,143 P.2d 424,193 Okla. 335
• Parties: MOUNT, Gdn., et al. v. SCHULTE
• Court: Oklahoma Supreme Court

1943 OK 298

143 P.2d 424

193 Okla. 335

MOUNT, Gdn., et al. v. SCHULTE

Case Number: 30798

Supreme Court of Oklahoma

Decided: September 28, 1943

Syllabus

¶0 1. NEW TRIAL--Motion for new trial properly filed is not superseded by filing motion for new trial not authorized by statute.

The filing of a motion for new trial which is not authorized by statute does not supersede a motion for new trial which has been previously properly filed, since such motion does not come within the rule which applies to pleadings.

2. APPEAL AND ERROR--Fact that casemade does not contain all the evidence is not necessarily ground for dismissal of appeal.

The fact that a case-made does not contain all of the evidence adduced at the trial is not ground for dismissal of an appeal since a case-made need only contain such evidence as is necessary to a consideration of the errors presented.

3. PARTIES--Persons entitled to intervene in actions.

Any person may be permitted to intervene in an action where they have or claim an interest in the controversy, and where their substantial rights are in litigation. White v. McGee, 149 Okla. 65, 299 P. 222.

4. CONTRACTS--Performance of condition excused if prevented by adverse party.

A party to a contract may not prevent performance of a condition therein and then claim the benefit of such condition.

5. SAME--Contract conveying an interest in property not revocable at will of one party to contract.

A contract which grants or conveys an interest in property is not revocable at the will of one of the parties to the contract.

6. ATTORNEY AND CLIENT--Attorney discharged without cause entitled to compensation named in contract.

Where an attorney is employed at an agreed compensation and fully performs his agreement until discharged without cause, the measure of his damages is the compensation named in the contract. White v. American Law Book Co., 106 Okla. 166, 233 P. 426.

7. ASSIGNMENTS--Note executed for personal service is assignable but contract for such service is not.

A contract for personal service is nonassignable, but note executed for personal service may be assigned.

Appeal from District Court, Pontotoc County; Tal Crawford, Judge.

Action by H. B. Mount et al. against J. G. Breco for cancellation of an instrument and to quiet title to lands, in which W. F. Schulte intervened claiming a lien upon the interest of one of the parties plaintiff in said action. Intervener had judgment, and plaintiffs appeal. Affirmed.

Long & Long, of Pauls Valley, for plaintiffs in error.

W. F. Schulte, of Ada, for defendant in error.

PER CURIAM.

¶1 This is an appeal from a judgment which was rendered in favor of intervener in an action brought to cancel conveyances and to quiet title to a tract of land in Pontotoc county. The action was instituted by H. B. Mounts, guardian of Leo Scott, Lorene Scott, and Billy Scott, minors, and Velma Massey, nee Scott, and A. M. Scott, individually, against J. G. Breco et al. W. F. Schulte intervened in said action claiming a lien upon the interest of A. M. Scott in the lands, the title to which plaintiffs were seeking to have quieted. The intervener alleged that his lien had been created by a contract which A. M. Scott had executed on April 26, 1937, and under which intervener and another had been employed to perform certain services as attorneys at law in connection with anticipated litigation over the lands here involved for an agreed fee of $1,250 which was evidenced by note of even date with said contract and which sum was secured by a lien on the interest of A. M. Scott in the lands involved; that the contract provided that the sum evidenced by the note should not become due until final judgment had been rendered in the litigation which was anticipated would be necessary. The intervener further alleged that he and the other party to said contract had endeavored to perform each and all, of the matters required of them by said contract, but had been prevented by A. M. Scott from so doing, and that the amount due under the contract had thereupon become absolute, and that the other party to said contract had then assigned his interest in said sum a nd the lien given by said contract to the intervener, who was at the time of filing said petition in intervention the absolute owner thereof. Motion to strike the petition in intervention was overruled, and thereupon A. M. Scott filed an answer in which, after a general denial, he alleged that the sum evidenced by the note and secured by the lien of the contract had not become due, and that therefore the action of intervener was premature. Trial of the issues thus framed between intervener and A. M. Scott was had by agreement, without the intervention of a jury, to the court. The parties stipulated to most of the essential facts, and from such stipulation and the evidence adduced at the trial it was disclosed that A. M. Scott had executed the contract and note and had shortly thereafter become dissatisfied, and in July 1937, had, at the point of a gun, forced the intervener to surrender the note and contract and had thereafter employed other attorneys to conduct the litigation which by said contract he had employed intervener and the other party thereto to perform. The evidence was in conflict chiefly with respect to the amount of services which the intervener and the other attorney had performed under the contract before its forced surrender and with respect to the reasons which had actuated the said A. M. Scott to pursue the course which he had in the matter. The court found from the stipulation and evidence so adduced that intervener and his associate had at all times prior to July, 1937, been ready, able, and willing to perform all the services required of them under the contract, and that they had been prevented by the said A. M. Scott from thereafter doing anything further, and that by reason of such acts on the part of the said A. M. Scott the amount agreed to be paid and evidenced by the note had become fully due, and that said amount was secured by the terms of the contract upon the one-third interest of A. M. Scott in the lands in controversy, and that the intervener had acquired the entire interest in said money and the lien created by the contract, and rendered judgment for intervener in accordance with said findings. Motion for new trial filed within the statutory period and a subsequent motion for new trial filed after the expiration of said period, and which made no reference to the former motion, were overruled. The appeal is from the judgment upon the issues between intervener and A. M. Scott.

¶2 Preliminary to a discussion of the grounds urged for reversal, it is necessary to consider motion of the defendant in error to dismiss the appeal. This motion, based upon the theory that filing of the subsequent motion for new trial superseded the former motion, and, being without time, left no motion pending, and, upon the theory that the casemade has to contain all of the evidence adduced at the trial, was denied by order. Defendant in error again presents it in his brief. While this is permissible in the absence of an order to the contrary, it will not be necessary to enter into any elaborate discussion of the matter. It suffices to say that the rule which defendant in error seeks to invoke relative to filing of pleadings does not apply to motion for new trial; see Lillard v. Meisberger, 113 Okla. 228, 240 P. 1067; and that failure of a case-made to contain the entire record is not necessarily grounds for...