Osage Mercantile Co. v. Harris

• Decision Date: 19 October 1915
• Docket Number: 5494.
• Citation: 152 P. 408,52 Okla. 78,1915 OK 829
• Parties: OSAGE MERCANTILE CO. ET AL. v. HARRIS.
• Court: Oklahoma Supreme Court

152 P. 408

52 Okla. 78, 1915 OK 829

OSAGE MERCANTILE CO. ET AL. v. HARRIS.

No. 5494.

Supreme Court of Oklahoma

October 19, 1915

Rehearing Denied Nov. 2, 1915.

Syllabus by the Court.

After this cause had been submitted to the jury, and during the time of their deliberations upon the evidence, and before a verdict was found, the judge of the trial court trying said cause was called into the jury room, and in the presence of said jury was asked for further and additional instructions and, without giving notice to plaintiff or his attorney, or either of them, and in their absence, did then and there orally instruct said jury in said cause, and said oral instructions were not preserved in any manner, and were not made a part of the record in the case. Held, that such action of the trial court entitled plaintiff, under section 5033, Rev. Laws 1910, to a new trial, and such trial judge did not err in granting a new trial in this case.

An order of a trial court, granting a new trial, will not be reversed, unless it can be seen that the trial court erred with respect to some pure, simple, and unmixed question of law, and such error has resulted in injury.

Commissioners' Opinion, Division No. 1. Error from County Court, Osage County; Chas. E. King, Judge.

Action between the Osage Mercantile Company and another and C. L Harris. From the judgment, the parties first mentioned bring error. Affirmed.

Horsley Peters & Walton, of Pawhuska, for plaintiffs in error.

Gray & Miller and Elmer J. Black, all of Pawhuska, for defendant in error.

COLLIER C.

This is an action to recover damages for the conversion of property by its sale under execution; the property sold being claimed as exempt from sale under execution to the defendant in error. The case was tried to a jury, and resulted in a verdict in favor of plaintiffs in error. Motion was made for a new trial, which was granted, to which the plaintiffs in error duly excepted. This appeal is prosecuted to reverse said order granting a new trial.

There are several errors assigned, but we hold that the only error we should consider is whether or not the trial court erred in granting a new trial. In support of the motion for new trial plaintiff below filed an affidavit, against which no counter affidavit was filed, which, among other things, sets up:

"On information and belief, affiant says that after the above-entitled cause had been submitted to the jury, and during the time of their deliberation upon the evidence, and before a verdict was found, Hon. Chas. E. King, the judge of said court, was called into the jury room and into the presence of said jury, said judge was asked for further and additional instructions, and, without giving notice to the plaintiff or his attorneys, or either of them, the said Chas. E. King, judge of said court, did then and there, in the presence of the jury, but in the absence of the plaintiff and his attorneys, orally instruct said jury, and that said oral instructions were not taken or

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