Offutt v. Wagoner
| Decision Date | 12 December 1911 |
| Citation | 120 P. 1018,30 Okla. 458,1911 OK 512 |
| Parties | OFFUTT et al. v. WAGONER et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
Section 5760, Snyder's Compiled Laws of Oklahoma 1909, requires the giving of a bond, before an injunction shall be operative, in all cases, unless otherwise provided by special statute.
The allowance of amendments to pleadings before or after judgment, when the same do not change substantially the claim or defense, rests in the sound discretion of the court, and the allowance of the same will not be disturbed on appeal unless it is made to affirmatively appear that its exercise has operated to the prejudice of the complaining party. City of Shawnee v. Slankard, 116 P. 803.
The court cannot review alleged errors of the trial court in refusing admission of certain proffered evidence, unless such evidence, or the substance thereof, be in some proper manner incorporated in the case-made, thereby enabling this court to determine whether or not there was error in its exclusion.
Where under the pleadings, the plaintiff is entitled to recover unless a certain affirmative defense therein pleaded is sustained, no evidence being produced tending to support such a defense, a verdict should be directed in favor of the plaintiff. Harrah & Co. v. First Nat. Bank of Tonkawa, 26 Okl. 620, 110 P. 725.
(Additional Syllabus by Editorial Staff.)
In an action on a bond given in a suit to enjoin the sale of property, the exclusion of evidence that the property had materially increased in value to such an extent as to materially reduce the damage of the obligees of the bond was not error.
It is the duty of the court in directing a verdict to disregard incompetent testimony received over objection.
Commissioners' Opinion, Division No. 1. Error from Ottawa County Court; W Y. Quigley, Judge.
Action by W. A. Wagoner and another against D. A. Offutt and others for damages on an injunction bond. Judgment for plaintiffs and defendants bring error. Affirmed.
E. B. Morgan and M. M. Edmiston, for plaintiffs in error.
Vern E. Thompson and F. D. Fulkerson, for defendants in error.
The first question raised by plaintiff in error is "that the law makes no provision for a bond to obtain a restraining order." We do not understand this statement of counsel in this assignment of error for, nowhere in the record does it appear that a restraining order was issued, but, on the contrary, it affirmatively appears that an injunction was issued. The only evidence in this case as to the character of the injunctional relief sought in the district court is the order of the district judge dissolving the injunction. The order is found on page 7 of the plaintiffs' abstract, and is in words as follows: The district judge called the instrument an injunction, and nowhere in the record do we find any reference to a restraining order. Also the bond sued on recites that an injunction had issued. We are bound to conclude that it was an injunction instead of a restraining order that was issued, and, that being the case, section 5760, Snyder's Compiled Laws Oklahoma 1909, specifically provides for a bond in such case. Defendants in error cite Ex parte Grimes, 1 Okl. Cr. 102, on page 106, 94 P. 668, on page 670, as an authority requiring a bond in case a restraining order is issued. This authority does not sustain such a contention. On the contrary, Mr. Justice Dunn, in writing the opinion of the court said: "No bond is, by statute, required on the issuance of a temporary restraining order, although many authorities hold that it is better practice to require it."
In paragraph 1 of the syllabus to that case it is said: "*** It is better practice to require bond in all such cases." The record, however, in this case, shows that an injunction was granted, and that an injunction was dissolved by the district judge. Nothing is said at any place of and concerning a restraining order. Hence the contention of counsel is not good, for as has been seen by the section of statute cited above, it is essential that a bond be given before an injunction can issue.
As to the second question, that the court erred in permitting plaintiffs to amend their bill of particulars, one needs only to refer to section 5679, Snyder's Comp. Laws Oklahoma 1909, to see that the permitting of amendments to pleadings is discretionary with the court, and unless it affirmatively appears that there has been an abuse of such discretion, the same will not be reviewed on appeal. "The allowance of amendments to pleadings either before or after judgment, in furtherance of justice, when the same do not change substantially the claim of defense, rests in the sound discretion of the court, and the allowance of the same will not be disturbed on appeal unless it is made to affirmatively appear that its exercise by the court has operated to the prejudice of the rights of the complaining party." City of...
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