Roark v. Mccutchan
| Decision Date | 13 December 1927 |
| Docket Number | Case Number: 17657 |
| Citation | 128 Okla. 186,261 P. 938,1927 OK 479 |
| Parties | ROARK et al. v. McCUTCHAN. |
| Court | Oklahoma Supreme Court |
¶0 1. New Trial--Misconduct of Judge in Jury Room as Ground--Party Held "Unavoidably Prevented" from Filing Motion Within Three Days.
Though a party to an action saw the trial judge enter the room where the jury was deliberating upon their verdict, and he and the attorney then representing him used due diligence thereafter to ascertain the full facts, but did not learn until more than three days after the verdict was returned sufficient facts as to what occurred while the judge was in the room to entitle the party to a new trial, held that, where such party files his motion for new trial immediately after receiving the latter information, the motion should be considered by the court, for the reason that such party was unavoidably prevented from filing the motion within time, within the meaning of section 574, C. O. S. 1921.
2. Same--Action of Court in Orally Instructing Jury in Absence of Party as Ground for New Trial.
After this cause had been submitted to the jury, and during the time of their deliberation upon the evidence and before a verdict was found, the trial judge was called into the room where said jury was deliberating, and without giving notice to defendants or their attorney, and in the absence of each of them, said judge then and there in said cause orally instructed the jury; held, that such action of the trial judge entitled the defendant under section 546, C. O. S. 1921, to a new trial.
Commissioners' Opinion, Division No. 1.
Error from Court of Common Pleas, Tulsa County; Gerald F. O'Brien, Judge.
Action by J. W. McCutchan against O. P. Roark et al. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions.
Geo. B. Forrester, for plaintiffs in error.
E. M. Conner, for defendant in error.
¶1 This action was brought by plaintiff to recover the balance due on a promissory note given by defendants to plaintiff for dental services. The defendants attempted to defeat recovery on the ground that the dental work was faulty, unsatisfactory, and not as warranted by the plaintiff.
¶2 The case was tried to a jury on the 20th day of January, 1926. Verdict was returned for the plaintiff and judgment thereon entered on the same date. On the 4th day of February, 1926, the defendants filed a motion for new trial, and upon consideration of the matter, the court refused to consider the motion and struck the same from the record. From this order the defendants appealed to this court.
¶3 The motion for new trial in this case was not filed until the 4th day of February, 1926. Section 574, C. O. S. 1921, governing this question is as follows:
"The application for a new trial must be made at the term the verdict, report or decision is rendered, and, except for the cause of newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial, or impossibility of making a case-made, shall be within three days after the verdict or decision was rendered, unless unavoidably prevented."
¶4 In order to relieve themselves from the foregoing section requiring the motion to be filed within three days, the defendants were required to show that they were unavoidably prevented from filing it within said time.
¶5 Under the evidence presented on the hearing of the motion for new trial, it is clear that one of the defendants knew that the trial judge entered the room where the jury was deliberating at the request of the jury, but we think the evidence was sufficient to show that neither of the defendants, nor their counsel, knew, though they and counsel then representing them used diligence, that the judge had, while in the jury room, orally, or otherwise, given to the jury his interpretation of the written charge, until the night previous to filing the motion for new trial, at which time one of the defendants learned the full facts. The fact that counsel then representing defendants did not feel that the information he obtained, while investigating the matter within three days after the verdict, was sufficient to authorize him to file motion for new trial, is strongly persuasive that he was not able to ascertain the full facts.
¶6 With this view of the record we hold that the defendants were unavoidably prevented from filing the motion within the meaning of section 574, supra, and that the trial court erred in refusing to consider it
¶7 The question presented in the motion for new trial and urged on this appeal, is explained by the statement made by the trial judge in striking from the files the motion for new trial, as follows:
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Okla. City v. Collins-Dietz-Morris Co.
...counsel." ¶7 In support of this contention defendant cites Osage Mercantile Co. v. Harris, 52 Okla. 78, 152 P. 408, and Roark v. McCutchan, 128 Okla. 186, 261 P. 938. In both these cases the trial judge went into the jury room and no record of the proceedings was made; however, in the case ......
- Roark v. McCutchan