Perkins v. Baker
| Decision Date | 23 December 1913 |
| Citation | 137 P. 661,41 Okla. 288,1913 OK 747 |
| Parties | PERKINS v. BAKER. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
This court will not examine the evidence on a given subject unless the case-made contains an averment, by way of recital, to the effect that it contains all the evidence introduced at the trial. And this is especially true where the sufficiency of the case-made is properly challenged, and no answer thereto is made by the opposite party.
To present the question of misconduct of counsel, as making improper statements to the jury in his argument, for appellate review, there must be an objection seasonably made and an exception properly taken, if it is overruled.
It is not error to exclude from evidence a copy of the enrollment records offered for the purpose of proving the age of a Seminole allottee at the time he executed a warranty deed in January, 1905, especially where no predicate has been laid for the admission of secondary or hearsay evidence, and no other proper or sufficient reason being apparent.
It is not error to refuse admission in evidence of an affidavit of the deceased mother of an alleged minor, unless it is shown that such affidavit was made in good faith, unbiased by any issue between the parties likely to be affected thereby, and made before the litigation was commenced in which such evidence is to be used.
Record examined, and held not error to allow a witness to be asked if he had ever been convicted of a crime in the tribal courts of the Seminole Nation.
Commissioners' Opinion, Division No. 1. Error from District Court, Seminole County; Tom D. McKeown, Judge.
Action for ejectment by J. A. Baker against J. M. Perkins. Judgment for plaintiff, and defendant brings error. Affirmed.
Crump Fowler & Skinner, of Wewoka, for plaintiff in error.
J. A Baker, of Wewoka, pro se.
This action in ejectment was brought in the district court of Seminole county in November, 1909, by J. A. Baker against J M. Perkins. The answer denied the claim of ownership set up and relied upon by Baker, and set up ownership in the defendant, Perkins; Baker claimed by virtue of a deed dated January 4, 1905. It was the contention of the defendant at the trial below that, at the time Baker took his deed to the land in controversy, the grantor therein, Tippie Alberta, was a minor, and, being a Seminole freedman, was not capable of transferring the title to said land, and the deed under which Baker claims was therefore void. The jury returned a verdict in favor of Baker and against Perkins, upon which judgment was entered, and to reverse which this appeal is brought. The principal question in the case, and that upon which the verdict of the jury turned at the trial, was the age of the grantor, Tippie Alberta. There are many assignments of error in the petition; but, in the defendant's brief, attention is given only to the second, fifth, eighth, ninth, and eleventh, the others being waived.
The second assignment is that "the verdict and judgment rendered thereon in said cause was contrary to and not sustained by the evidence." The plaintiff objects to the consideration of this assignment by this court, for the reason that the case-made does not contain a certificate showing that it contains all the evidence introduced at the trial, and upon which the verdict was rendered, and the judgment was entered. A careful examination of the case-made proves this assertion to be correct, and under the uniform holdings of this court we are not at liberty to examine any of the testimony given on a subject, unless the case-made contains the positive averment, by way of recital, to the effect that it contains all the evidence introduced at the trial. This objection to the sufficiency of the case-made stands before us unanswered, and for that reason we presume the same must be true, and that the record cannot be amended. Baldwin Lumber Co. v. Sanders, 134 P. 387, and the cases there cited.
The next assignment of error urged has to do with the alleged improper conduct of counsel for plaintiff in his argument to the jury. Considerable space is taken up in defendant's brief on this subject, and many authorities are cited in support of his contention. Stress was also laid on this purported impropriety at the oral argument had before us; but, counsel for the plaintiff insists that this court has no jurisdiction to hear and determine this question, for that no exception was made or saved to the ruling of the trial court on the subject, and that this is not such a matter as can be raised for the first time in this court on appeal. An examination of the record shows (pages 69 to 70) that the following took place:
"By Mr. Fowler: The defendant excepts to the remarks of counsel for the plaintiff.
By the Court: The jury are admonished to go by the testimony and the charge of the court."
Section 5026, Rev. Laws 1910, provides that an exception is an objection taken to a decision of the court or judge upon a matter of law. Section 5027 provides that the party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term, etc.
In this case, as disclosed by the record, defendant objected to plaintiff's argument, and the court ruled upon the objection. We must presume the ruling of the court was satisfactory to defendant's counsel, else an exception would have been taken thereto. No such exception was taken so far as the record shows, and no complaint that the record is insufficient in that respect has been heard. No request was made that the jury be instructed to disregard the alleged improper remarks of counsel, yet it seems that the court, in effect, voluntarily instructed them to go by the testimony and the charge of the court, and this evidently was satisfactory to defendant, as it ended the controversy, and no exception was noted to the failure of the court to rule directly on the objection, nor to the instruction given the jury. Alexander et al. v. Oklahoma City, 22 Okl. 838, 98 P. 943; St. L. & S. F. R. R. Co. v. Davis, 132 P. 337; McLain v. State, 18 Neb. 154, 24 N.W. 720. In 1 Thompson on Trials, § 962, the learned author says: "The more correct view is that such irregularity can only be saved for appellate review by an objection seasonably made, an exception...
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