Potts v. First State Bank of Talihina

• Decision Date: 14 September 1915
• Docket Number: Case Number: 4822
• Citation: 51 Okla. 162,151 P. 859,1915 OK 620
• Parties: POTTS v. FIRST STATE BANK OF TALIHINA.
• Court: Oklahoma Supreme Court

1915 OK 620

151 P. 859

51 Okla. 162

POTTS v. FIRST STATE BANK OF TALIHINA.

Case Number: 4822

Supreme Court of Oklahoma

Decided: September 14, 1915

Syllabus

¶0 1. TRIAL--By Court--Taking Case Under Advisement. There being no statute of this state fixing the time within which a judgment must be rendered after the trial of a case in a court of record, a judge of such a court, having tried a case without a jury, undoubtedly has authority to take the same under advisement for a reasonable time, even though that time may extend beyond the term of the court at which the case is tried.

2. APPEAL AND ERROR--Harmless Error--Findings and Conclusions. Where, upon the trial of a case in a court of record, a jury is waived and the case is tried to the court, the failure of the court to make separate findings of fact and conclusions of law on a timely demand being made therefor, as required by statute, by one of the parties, is not reversible error when the evidence in the case clearly sustains the judgment rendered and where there is no evidence in the case which would warrant or sustain any other judgment than that which was, in fact, rendered.

3. PRINCIPAL AND SURETY--Fraud--Release of Surety. Fraud on part of the principal maker of a promissory note, whereby his surety is induced to sign it, knowing it to be a note, will not relieve the surety of lability to the payee if the payee did not know or have notice of the fraud at the time he accepted the note for a valuable consideration.

Kyle & Newman, for plaintiff in error.

Hale & Lunsford, for defendant in error.

WILSON, C.

¶1 This is a proceeding in error brought here on appeal from the county court of Bryan county, wherein the defendant in error sued the plaintiff in error to recover a balance due on a certain negotiable promissory note executed by the defendant to the plaintiff. The defendant filed his answer admitting the execution of the note in blank, but pleaded as a defense to the action that he signed it with the distinct understanding and agreement that one Hugh Swift was to sign the same as principal; that the plaintiff thereafter took said note "without securing the signature of Hugh Swift thereto, as had been agreed upon, and thereby practicing a fraud upon this defendant and breaching said contract and agreement so had." The defendant alleged as a further defense to the action that when said note became due he paid thereon the sum of $ 500 with a distinct understanding and agreement that he was to be released from any further liability on said note. These allegations of defense were denied by the plaintiff in its reply, and, the case being set for trial, a jury was waived by both parties, and the trial was had before the judge. On the trial of the case not a single syllable of evidence was offered which tended to sustain either of the allegations of defense urged by the defendant; but the court, however, took the case under advisement, and at a subsequent term of the court, without having made an order continuing the case under advisement for the term, rendered judgment for the plaintiff for the amount sued for. In the meantime, however, and about a week after the trial of the case and during the term at which it was tried, the defendant filed a written demand for separate findings of facts and conclusions of law, which was ignored by the court in rendering its judgment; but it does not appear from the record that the judge had any knowledge or notice that such demand had been filed. After filing his motion for a new trial, properly bringing to the attention of the trial court the alleged errors, and it being overruled, the defendant appealed the case to this court. Plaintiff in error, in his brief, relies for a reversal of the judgment of the lower cou...