Porter v. Wilson

• Decision Date: 21 October 1913
• Docket Number: Case Number: 2469
• Parties: PORTER v. WILSON et al.
• Court: Oklahoma Supreme Court

1913 OK 605

135 P. 732

39 Okla. 500

PORTER v. WILSON et al.

Case Number: 2469

Supreme Court of Oklahoma

Decided: October 21, 1913

Syllabus

¶0 1. APPEAL AND ERROR--Harmless Error--Demurrer to Evidence --Trial by Court. In the trial of a law action all of the issues, both of fact and law, were submitted to the court without the intervention of a jury. At the conclusion of plaintiff's testimony, and after she had rested her case, defendants demurred to the evidence, and at the same time requested the court to render judgment in their favor as prayed for in their answer, in which affirmative relief was asked. The court sustained the demurrer, made special findings of fact, and rendered a decree in favor of the defendants. Held that, while the judgment of the court sustained the demurrer, yet, having made special findings of fact, it was obvious that the court weighed the plaintiff's testimony for the purpose of determining the rights of the respective parties, and, the whole case being before the court, and there being evidence reasonably tending to support the court's findings, no reversible error was committed.

2. SAME. When a trial is had before the court without a jury, the court must eventually weigh the testimony for the purpose of determining where the preponderance is, and there is no reason why it should not do so at the earliest possible time, when the rights of the plaintiff will not be cut off or impaired by its so doing, and, when the plaintiff has introduced all her proof, and rested, no right of hers will be impaired, if the court then determines what has been proven.

3. SAME--Proceedings. This court is required by statute to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.

4. INDIANS--Heirship--Legitimacy. Section 5 of the Act of Congress of February 28, 1891 (26 St. at L. 794, c. 383), which provides: "That for the purpose of determining the descent of land to the heirs of any deceased Indian, under the provisions of said act (Act Feb. 8, 1887, 24 St. at L. 388, c. 119), whenever any male and female Indian shall have cohabited together as husband and wife, according to the custom and manner of Indian life, the issue of such cohabitation shall be, for the purpose aforesaid, taken and deemed to be the legitimate issue of the Indians so living together, and every Indian child, otherwise illegitimate, shall for such purposes be taken and deemed to be the legitimate issue of the father of such child"--was not extended in its operation to the territory occupied by the Creek Indians in the Indian Territory.

Lewis C. Lawson, for plaintiff in error.

Moore & Noble and Walker & Fancher, for defendants in error.

SHARP, C.

¶1 In the trial below all issues, both of fact and of law, were submitted to the court without the intervention of a jury. At the conclusion of plaintiff's testimony and after she had rested her case, defendants' counsel demurred to the evidence, and requested the court to render judgment in defendants' favor, in accordance with the prayer of their answer, assigning as a reason therefor that the testimony of the plaintiff failed to prove a marriage of plaintiff's mother and father, according to the customs and usages of the Creek Tribe of Indians. The demurrer was sustained, special findings of fact submitted by the court, and a decree entered for the defendants. In the special findings the court found that the marital relation alleged to have existed between Ben Porter and Jennie McGilbra, plaintiff's parents, was not established by the testimony, and did not in fact exist, either by reason of the customs or the laws of the Creek Nation, but instead that the relation, once existing between them, was illicit, and that the plaintiff was the offspring of said meretricious relationship. It is insisted by counsel for plaintiff in error that the court erred in sustaining the demurrer, as there was evidence introduced at the trial reasonably tending to establish the allegations of plaintiff's petition; that a demurrer admits all the facts which the evidence in the slightest degree tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn from the evidence. This, in proper cases, is not only the rule in this state, but we believe to be the very general rule of all the courts. Upon a demurrer to the evidence, the court must consider as true every portion of the evidence tending to prove the case of the party resisting the demurrer, and cannot weigh conflicting evidence. Conklin v. Yates, 16 Okla. 266, 83 P. 910; Edmission v. Drumm-Flato Com. Co., 13 Okla. 440, 73 P. 958; Cole v. Missouri, K. & O. R. Co., 20 Okla. 227, 94 P. 540, 15 L.R.A. (N.S.) 268; Ziska v. Ziska et al., 20 Okla. 634, 95 P. 254, 23 L.R.A. (N.S.) 1. In Conklin v. Yates et al., and Ziska v. Ziska et al., supra, the trial in both cases was had before the court; but the effect of a demurrer to the evidence in trials before the court does not appear to have been raised or considered, although the same general rule was observed as in jury trials. The statutory warrant for demurring to the testimony of the party on whom rests the burden of the issues is found in the third paragraph of section 5794, Comp. Laws 1909 (Rev. Laws 1910, sec. 5002), which expressly provides for the order of procedure in jury trials. This provision was held, in Chicago Lumber Co. v. Merrimack River Sav. Bank, 52 Kan. 410, 34 P. 1045, to be authorized by the spirit, if not the letter, of the Code of Procedure of that state (section 275 [4722] Stats. Kan. 1901), and which provision of the statute is identical with section 5794, supra. This practice appears to have been recognized by the Supreme Court of Kansas in a number of cases, among which are: Wolf v. Washer, 32 Kan. 533, 4 P. 1036; Farnsworth v. Clarke, 62 Kan. 264, 62 P. 655; Wehe et al. v. Mood et al., 68 Kan. 373, 75 P. 476. The nature of a demurrer to the evidence has been defined to be (2 Tidd. Pr. p. 265) "a proceeding by which the judges of the court in which the action is pending are called upon to declare what the law is, upon the facts shown in evidence, analogous to the demurrer upon the facts alleged in a pleading." See, also, Suydam v. Williamson et al., 61 U.S. 427, 20 How. 427, 15 L. Ed. 978. And the practice of demurring to the evidence in jury trials, while not recognized in some jurisdictions, is an ancient and well-established one, having a firm support in principle, and recognized in many of the states, and by the federal and English courts (Elliott's General Practice, secs. 855, 856), though in trials before the court the practice of demurring to the evidence appears to be an anomalous procedure, followed only by the Supreme Court of Kansas, so far as our investigation of the authorities extends (30 Cyc. 1946; footnote to Elliott's General Practice, sec. 855). Where the trial is before the court, it is charged with the duty of determining the facts, while where the trial is before the jury, the facts are for its determination; it being the province of the court to declare the law. We must not, however, overlook the very important fact that the court did not render its judgment alone upon the demurrer to the evidence, but, after a consideration of the proof submitted by plaintiff, made its findings of fact, thereby necessarily weighing the plaintiff's testimony for the purpose of determining the rights of the respective parties to a recovery. A similar question was before the Supreme Court of Washington in Lambuth v. Stetson & Post Mill Co., 14 Wash. 187, 44 P. 148, and from which we quote at length. It was said by Hoyt, C. J., speaking for the court:

"The cause went to trial before the court; a jury having been waived by the parties. After plaintiff had put in his evidence and rested, defendant moved for nonsuit and a dismissal of the action, on the ground that the evidence had not shown that plaintiff was entitled to recover. This motion was granted, for the reason, as stated by the court, that a fair preponderance of the proof established facts which prevented a recovery by the plaintiff. The granting of this motion, followed by a dismissal of the action, is the ground upon which plaintiff relies for a reversal. If the court had a right to weigh the evidence tending to establish the facts alleged in the answer against that which tended to make out plaintiff's prima facie case, and decide in accordance with what he thought to be the preponderance of the evidence on either side, the judgment must be affirmed, for, if he had a right to do this, his conclusion has the force here of the verdict of a jury, and will not be disturbed if there was evidence upon which it could be founded. Could the court thus weigh the testimony for and against the claim of plaintiff upon this motion for a nonsuit, or must it be denied if there was any evidence tending to sustain the claim of plaintiff, however much there might be in opposition thereto? * * * Appellant has cited a large number of cases to show that a motion for a nonsuit should be denied if the evidence introduced by the plaintiff tended to establish the facts necessary to a recovery; but all but one stated the rule in cases in which the cause was tried before a jury. * * * but, where the entire trial is before the court which must finally pass upon the law and facts of the case, there is no good reason why it should not be allowed to determine the facts necessary to a proper application of the law at any time during the trial. It would be worse than useless for the court, after its attention had been called to the insufficiency of the evidence offered by the plaintiff to establish the facts necessary to enable him to recover, and, after being satisfied that such was the nature of the evidence introduced by the plaintiff, to require the defendant to put in evidence to disprove that which had been already sufficiently

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