Powell v. Nichols

• Decision Date: 12 July 1910
• Citation: 110 P. 762,26 Okla. 734,1910 OK 244
• Parties: POWELL et al. v. NICHOLS et al.
• Court: Oklahoma Supreme Court

110 P. 762

26 Okla. 734, 1910 OK 244

POWELL et al. v. NICHOLS et al.

Supreme Court of Oklahoma

July 12, 1910

Syllabus by the Court.

The filing and determining of a motion for a new trial of a contested question of fact not arising upon the pleadings but upon a motion, is unnecessary to authorize this court to review the order upon such hearing.

A leasehold estate, the terms of which under the written lease exceeds the period of two years, and with a covenant against subletting or assigning on the part of the lessee without the consent of the lessor, is subject to sale under an execution against such lessee.

Error from District Court, Oklahoma County; Joseph G. Lowe, Judge.

Action between B. H. Powell and others and James E. Nichols and others. From the judgment, Powell and others bring error. Affirmed.

Giddings & Giddings, for plaintiffs in error.

Burwell Crockett & Johnson, for defendants in error.

WILLIAMS J.

The questions to be determined on this record are as follows:

(1) Is it necessary for a motion for new trial to be filed in order to review the action of a nisi prius court in granting or overruling a motion where evidence is heard thereon?

(2) Is the leasehold estate owned by the judgment debtor under a written lease for more than two years, containing a covenant against subletting or assigning without the consent of the lessor, subject to execution?

1. The first question seems to have been settled in McDermott v Halleck, as Receiver, et al., 65 Kan. 403, 69 P. 335 paragraph 1 of the syllabus being as follows: "A new trial is a re-examination of an issue of fact. An issue of facts arises upon the pleadings. The pleadings upon which an issue of fact can arise under the case are the petition, answer, and reply. Hence the filing and determination of a motion for a new trial of a contested question of fact not arising upon the pleadings, but arising upon a motion, is unnecessary to authorize the court to review the order made upon such hearing." In support of that conclusion, the following authorities were cited: Slobodisky v. Curtis, 58 Neb. 211, 78 N.W. 522; Harper v. Hildreth, 99 Cal. 265. 33 P. 1103; Beach v. Spokane R. & W. Co., 21 Mont. 7, 52 P. 560; Stone, Assignee, v. Bank, 8 Ohio Cir. Ct. R. 636; First Nat. Bank v. Swan, 3 Wyo. 356, 23 P. 743; 2 Thomp. Trials, § 2716; 4 Encyc. Pl. & Pr. 853. In section 99, at page 66, Burdick on New Trials and Appeals (1907), it is declared that: "In case, moreover, of an order upon a contested question of fact arising upon the pleadings, but arising upon a motion, no motion for a new trial is necessary," in order to have the action of the court reviewed by the appellate court. In addition to McDermott v. Halleck, supra, the cases of McDonald v. Cooper & Co., 32 Kan. 58, 3 P. 786, Cook v. Larson, 47 Kan. 70, 27 P. 113, and Dreese v. Myers, 52 Kan. 126, 34 P. 349, 39 Am. St. Rep. 336, are cited in footnote 26 in support of the text. The Supreme Court of the territory of Oklahoma seems never to have passed on this question. We conclude that a motion for a new trial is not essential in this case to have the action of the trial court reviewed.

2. The lease creating the estate levied upon under the execution bears date October 13, 1906, and demises to the plaintiffs in error certain premises from November 1, 1906, to July 1 1909. Section 3330, Wilson's Rev. & Ann. St. 1903, provides: "No tenant for a term not exceeding two years, or at will, or by sufferance, shall assign or transfer his term or interest, or any part thereof, to another, without the written assent of the landlord or person holding under him." The leasehold here in controversy having been created for a period exceeding two years, this section of the statute has no application thereto. Gano v. Prindle, 6 Kan. App. 851, 50...