Pure Oil Co. v. Quarles
| Decision Date | 21 June 1938 |
| Docket Number | 27659. |
| Citation | 82 P.2d 970,183 Okla. 418,1938 OK 422 |
| Parties | PURE OIL CO. et al. v. QUARLES et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Under the provisions of section 538, O.S.1931, 12 Okl.St.Ann § 962, extension of time within which to prepare and serve case-made, after the expiration of the last prior valid order authorizing the same, can only be granted when the evidence shows that by reason of accident or misfortune, which could not have been reasonably avoided, preparation and service of case-made could not have been had within the limitation of the prior order.
2. Mere inadvertence, misunderstanding or oversight does not constitute accident or misfortune within the contemplation of the statute authorizing an extension on such grounds.
3. A case-made which has not been served within the time provided by statute or some legal extension of such time presents nothing to this court for review unless the same is properly certified as a transcript in which case it presents only errors appearing upon the face of the record and which may be reviewed on transcript.
4. Cross-appeal by defendant in error is the proper procedure for obtaining a review of the trial court's order extending time to make and serve case-made on the ground of accident or misfortune, as provided in section 538, O.S.1931 12 Okl.St.Ann. § 962.
5. Where an error in a judgment appears on the face of the record proper, this court will consider and correct the same although no motion for new trial was filed, and no exception taken thereto in the trial court.
6. Special findings of fact and conclusions of law made at the request of counsel and recorded in the journal become a part of the record proper, and, though no exceptions were saved thereto, this court on proper transcript and petition in error will review the action of the trial court in applying the law to the facts as found.
7. To entitle a plaintiff to recover exemplary damages in an action sounding in tort, the proof must show some element of fraud, malice, or oppression. The act which constitutes the cause of action must be actuated by, or accompanied with, some evil intent, or must be the result of such gross negligence, such disregard of another's rights, as is deemed equivalent to such intent.
Appeal from District Court, Osage County; Jesse J. Worten, Judge.
Action by J. J. Quarles and another, copartners doing business under the firm name and style of Quarles & Franks, against the Pure Oil Company and another to recover damages resulting from the pollution of a stream by salt water. From a judgment for the plaintiffs, the defendants appeal and the plaintiffs cross-appeal.
Judgment affirmed in part and reversed in part and remanded with directions.
E. H. Chandler, Summers Hardy, and Alvin Richards, all of Tulsa, and Hamilton & Kane, of Pawhuska, for plaintiffs in error.
McCoy, Craig & Pearson, of Pawhuska, for defendants in error.
This action was instituted in the district court of Osage county by defendants in error, referred to herein as plaintiffs, against the plaintiffs in error, referred to herein as defendants, to recover damages resulting frm the pollution of a stream by salt water.
This cause has been here before. Pure Oil Co. v. Quarles, 173 Okl. 153, 47 P.2d 124. After remand thereof for new trial the parties waived jury, and trial to the court resulted in judgment for plaintiffs, and defendants appeal.
In preparing their appeal defendants allowed their extended time for preparing and serving case-made to expire. Approximately 39 days after the expiration of the extension given, the defendants applied to the court for a further extension of time in which to prepare and serve case-made upon the ground of accident and misfortune which could not have been reasonably avoided, whereby they had been prevented from preparing and serving case-made within the time formerly granted. Pursuant to notice duly given, the application of the defendants was heard and granted by the trial court on October 19, 1936. The plaintiffs reserved exceptions thereto and have filed a cross-appeal here assigning as error the action of the trial court in granting the extension, and urge that such order is invalid in that it is unsupported by any competent evidence.
Upon showing of accident or misfortune which could not reasonably have been avoided by the party appealing, the trial court may make an order extending the time in such case after the expiration of the time fixed by statute or by previous orders. Section 538, O.S.1931, 12 Okl.St.Ann. § 962. Cross-appeal by defendant in error is the proper procedure for obtaining a review of the court's order in such case. Bruner v. Eaton, 121 Okl. 209, 249 P. 734. In the absence of evidence of unavoidable accident or misfortune to support the order, the same will be reversed, and mere inadvertence, mistake or oversight is not sufficient to support the same. Id.
In the Bruner Case, supra, it was held that the failure of the district judge to receive and sign an order of extension which had been mailed to him within two days prior to the expiration of a previous order of extension did not constitute an accident or misfortune which could not reasonably have been avoided, and that an order of extension subsequently granted on such ground was invalid. In the case at bar the claim of accident and misfortune made by the defendants is based upon a misunderstanding of certain correspondence which had passed between the local attorney and division attoneys for the defendants. It appears that the local attorney understood that he was to receive further advices before ordering the case-made, and that the division attorneys were under the impression that their letters had definitely directed the local attorney to proceed with the appeal. In connection with the application, affidavits of the respective attorneys were attached thereto and the local attorney states that the failure to obtain the order extending the time previously given was occasioned by misunderstanding of instructions and oversight. This was unfortunate, but does not constitute an accident or misfortune which could not reasonably have been avoided. It further appears from the record that no steps were taken to order a case-made or to perfect the appeal, either within the time originally granted or for nearly 39 days thereafter. The evidence of the defendants showed neither diligence nor due care in preserving their right of appeal. Under these circumstances, the language of Bruner v. Eaton, supra, is very appropriate, wherein this court said (page 736): "Under the facts shown by the evidence here we can find no reasonable justification for the extension of the time, and can reach no other conclusion but that the failure to obtain the extension of time was due to the defendant's own negligence."
Had the defendants exercised only a slight degree of care, they could have protected their record and obviated any necessity of invoking the provisions of section 538, O.S.1931, 12 Okl.St.Ann. § 962, but since they did not do this and failed to show any accident or misfortune sufficient to support the order which granted them a further extension of time in which to prepare and serve case-made, such order was ineffectual for any purpose. It follows that the case-made which has been filed in this court was not prepared and served within the time provided by statute or any authorized extension, and therefore the same presents nothing to this court for review except errors appearing upon the record as a certified transcript. Jones v. Blanton, 130 Okl. 200, 266 P. 438.
It is urged that there are certain errors appearing upon the face of the record proper, duly assigned in the petition in error and reviewable as upon transcript.
The case-made is sufficient as a transcript of the record, and any errors as aforesaid, duly assigned, are reviewable. The rule is stated in Baker v. Hammett, 23 Okl. 480, 100 P. 1114, as follows: "Where an error in a judgment appears on the face of the record proper, this court will consider and correct the same, although no motion for new trial was filed, and no exception taken thereto in the trial court." See cases in accord, International Harvester Co. v. Cameron, 25 Okl. 256, 105 P. 189; Tribal Development Co. v. White Bros., 28 Okl. 525, 114 P. 736; Grissom v. Beidleman, 35 Okl. 343, 129 P. 853, 44 L.R.A.,N.S., 411, Ann.Cas.1914D, 599; Gourley v. Williams, 46 Okl. 629, 149 P. 229; Pace v. Pace, 70 Okl. 42, 172 P. 1075; Wilkinson v. Whitworth, 169 Okl. 286, 36 P.2d 932; Sweeney v. Home Bldg. & Loan Ass'n, 176 Okl. 596, 56 P.2d 797, 800.
The defendants, appellants herein, insist that the special findings of fact and conclusions of law constituted a part of the record proper; that the judgment is not supported by the facts as found, and may be reviewed as on transcript for the purpose of determining that question.
The cause was tried to the court, and the special findings and conclusions were made at the request of counsel as authorized by section 374, O.S.1931, 12 Okl.St.Ann. § 611, signed by the judge and recorded in the journal, but they were not incorporated in the final judgment or the instrument commonly referred to as the journal entry of judgment.
Plaintiffs say that the special findings and conclusions as aforesaid constitute no part of the record proper as defined in section 435, O.S.1931, 12 Okl.St.Ann. § 704, and the same may not be reviewed except when duly excepted to, presented in motion for new trial and incorporated in the record on appeal by means of case-made or bill of exceptions. Larkin v. Barker, 134 Okl. 46, 272 P. 882; Scruggs v. Kessinger, 175 Okl. 510, 53 P.2d 1125. Plaintiffs also take the position...
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