Province v. Lovi

• Decision Date: 04 September 1896
• Citation: Province v. Lovi, 4 Okla. 672, 47 P. 476, 1896 OK 86 (Okla. 1896)
• Court: Oklahoma Supreme Court
• Parties: JOHN PROVINCE v. CHARLES LOVI.

1896 OK 86

47 P. 476

4 Okla. 672

JOHN PROVINCE v. CHARLES LOVI.

Supreme Court of Oklahoma

Decided: September 4, 1896

Error from the District Court of Oklahoma County.

Syllabus

¶0 1. OCCUPYING CLAIMANT. In order to successfully assert a right as an occupying claimant, the party must bring himself within the statuatory provisions applicable thereto and in the absence of such showing by defendant in an action of ejectment, he should be regarded as a trespasser, without any right to demand a jury to assess the value of the improvements he has placed upon the land.

2. REFEREE--Oath Of. Section 309, Code of Civil Procedure, which provides that a referee shall be sworn, while mandatory to the extent of requiring the oath to be taken, yet the precise language of the statute need not be followed in the oath administered; yet it is sufficient if the substance of the statute be complied with.

3. SAME--Report Of-- When Confirmed. Where an objection is made to the report of a referee on the ground that the report is not sustained by the evidence, and the evidence taken by the referee in the hearing had before him is not incorporated in the motion to set aside the referee's report, it is not error for the trial court to overrule the objection to the confirmation of the report.

4. EJECTMENT--New Trial. Where a judgment by default is taken in favor of a plaintiff in an ejectment suit, and no issue has been raised by a defendant as to the right of plaintiff in the possession of the land, § 618 of our Code which provides for a new trial as a matter of right in an ejectment proceeding is not applicable. (Hall v. Saunders, 25 Kan, 538.)

R. G. Hays and J. S. Jenkins, for plaintiff in error.

A. B. Hammer and J. H. Everest, for defendant in error.

DALE, C. J.:

¶1 November 15, 1893, Charles Lovi instituted an action in the district court of Oklahoma county against John Province and John Hicks to recover the possession of lots number 3 and 4, and the east half of the southeast quarter of section 11, township 12 north, range 2 west. Oklahoma county, and in such action asked for a judgment against defendants for damages in the sum of $ 700 for unlawfully keeping plaintiff out of the possession, waste and mesne profits. To this petition no answer was tiled and on January 26, 1894, judgment was entered against the defendant, Province, by default. The record does not show that a judgment against Hicks was asked for and he does not appear further in the case. Afterward, but on the same day upon which the judgment was taken by default, counsel for defendant, Province, filed a motion to strike the petition from the files because the same was not verified, and on March 5, following, counsel filed another motion for defendant, Province, asking that the default be set aside and alleging in such motion that at the time the judgment was rendered defendants were not in default for the reason that they had at such time a motion on file to strike the petition from the files because the same was not verified. The motion to set aside the default was overruled and no further proceedings appear to have been taken in the case until November 7, 1894, at which time a referee was appointed to try the question both of law and fact regarding the damages claimed in the petition. November 15th the referee filed his oath, and inasmuch as it is contended that the referee obtained no jurisdiction because the oath was not substantially as required by law, we will set it out as it appears in the record. After entitling the cause, the oath is as follows:

"TERRITORY OF OKLAHOMA, OKLAHOMA COUNTY, SS.

"I, A. P. Bond, heretofore on the -- day of November, 1894, appointed referee to take testimony concerning damages in said case and report herein on questions both of law and fact concerning said damages do solemnly swear that I will faithfully perform the duties of referee in said cause, according to the best of my ability, so help me God,"

¶2 Following the oath appears the signature of A. P. Bond and a jurat showing that it was subscribed and sworn to on the 15th day of November, 1894, before W. H. Ebey, clerk of the district court. On November 19, the referee filed his report and an inspection of it shows that the plaintiff anti defendant appeared by counsel before the referee; that no objection was made to proceeding before such referee, in fact no objection was made to any of the steps taken by him before his report was filed in the district court on November 19, 1894. On December 12 the defendant, Province, filed a motion to set aside the report of the referee urging several grounds in said motion, in substance as follows: That he had a valid defense to the action; that he entered upon the land in good faith, under a contract with one M. Crawford, whom defendant believed was in the lawful possession of the same, and under said contract the defendant built a mill and made other permanent and lasting improvements on the land; that afterwards it was ascertained that the land was a fraction of about six acres and that Crawford's filing did not cover the same; that the plaintiff, learning of these facts procured some kind of a filing or claim to the same, well knowing at the time of procuring the filing or claim that the defendant occupied the land in good faith and had built the mill and made valuable improvements as aforesaid; that when the suit was filed and service had on the defendant, he employed attorneys to file his defense; that his attorneys had failed to file such defense. That on the 15th day of November, 1894, the court appointed A. P. Bond referee to hear evidence and determine the amount of damages sustained by the plaintiff, and that he, the defendant, had no actual notice of the appointment of the referee or the time or place of the trial by him until after the same was concluded. That defendant had no opportunity to be present at the trial with his witnesses; that he had been sick and unable to attend court at an earlier day; that he verily believes that he can show by sufficient proof that plaintiff is not entitled to any amount as damages; that the referee did not take the oath prescribed by law and had no jurisdiction to try or report on said case; that said referee erred in finding excessive damages in the sum of $ 400, and the defendant moved the court to set aside the default, also the report of the referee, and grant him a new...