Rogers v. Quabner

• Court: Oklahoma Supreme Court
• Writing for the Court: BREWER, C. PER CURIAM.
• Citation: Rogers v. Quabner, 137 P. 361, 41 Okla. 107, 1913 OK 730 (Okla. 1913)
• Decision Date: 20 December 1913
• Parties: ROGERS ET AL. v. QUABNER ET AL.

137 P. 361

41 Okla. 107, 1913 OK 730

ROGERS ET AL. v. QUABNER ET AL.

Supreme Court of Oklahoma

December 20, 1913

Syllabus by the Court.

A motion for a new trial may be amended, after the three days allowed by the statute for filing the motion, by a clearer more appropriate statement or elaboration of the grounds originally set up; but such an amendment, filed after the statutory time has expired, cannot set up new and independent grounds therefor.

The discretion of the trial court in granting a new trial, is so broad that its action in so doing will not be disturbed on appeal unless the record shows clearly that the court has erred in the decision of some pure and unmixed question of law, and that the order granting the new trial is based upon such erroneous view of the law.

Commissioners' Opinion, Division No. 2. Error from District Court, McIntosh County; Preslie B. Cole, Judge.

Action by Maria Rogers against James Quabner and others. From the judgment, plaintiff and defendant Edwin A. Welty bring error. Affirmed.

Robert J. Bone, of Tulsa, for plaintiffs in error.

John F Vaughan and J. G. Schofield, both of Checotah, for defendants in error.

BREWER C.

This is an action brought by Maria Rogers, plaintiff below, for possession of certain lands, damages for their detention that a deed be declared to be a mortgage, for the cancellation of a mortgage, and to quiet title. Edwin A Welty was made a defendant in the court below as the holder and owner of an admitted mortgage. James Quabner, the principal defendant below, answered that he was the owner and original allottee of the lands; that he had never sold same to plaintiff; that deeds under which she claims to hold were forgeries, etc. Harlin, Wiley, and Hill were merely tenants of Quabner. Buell answered, asserting title, and denied that his deed from plaintiff was intended as a mortgage. Welty, as defendant below, set out his mortgage, averred a breach of its conditions, and prayed for judgment and foreclosure against plaintiff.

The case was tried by agreement of the parties by the court and without the intervention of a jury. Much evidence was introduced, and, after what seems to have been a somewhat prolonged and stormy trial, the court found in favor of the plaintiff Maria Rogers as to the ownership and right to the possession of the land; that the deeds from Quabner to her, under which she claimed, were not forgeries but were valid and subsisting; that the deed to Buell was in fact a mortgage; that Welty's mortgage was a valid and subsisting lien and should be foreclosed and the property sold to satisfy the same, etc. This finding and judgment was rendered on the 4th day of January, 1911. All of the defendants in the court below except Welty, who was satisfied with the decree, filed on January 5, 1911, their joint motion for a new trial, stating the following grounds therefor: "(1) Irregularities in the proceedings of the court by which the parties were prevented from having a fair trial. (2) Misconduct of the prevailing party. (3) Accident and surprise which prudence could not guard against. (4) That the decision is not sustained by sufficient evidence and is contrary to law. (5) Error of law occurring at the trial and excepted to by the party making the application." This motion for a new trial came up for hearing on April 6, 1911, and the consideration thereof was passed, on the court's own motion, until April 10, 1911.

On April 10, 1911, the defendants filed an amended motion for a new trial, setting up, in addition to some of the grounds in the former motion, that of newly discovered evidence, alleged to be material in the case, and which it is alleged could not have been produced with reasonable diligence at the trial. Also the ground that the court had erred in the admission of certain evidence specifically set out. This amended motion was supported by the affidavit of James Quabner, the principal defendant, and also affidavits of John King and Wesley Thompson, setting out the newly discovered evidence. The filing of this amended motion was objected to by the present plaintiffs in error, who also filed a motion to strike it from the files. The objection and the motion to strike were both overruled by the court, and the plaintiffs in error requested that the hearing thereof be continued to the end that they have an opportunity to examine the motion and affidavits and investigate the matters therein contained. The hearing on the motion was continued until the next day but a further continuance thereof was denied by the court, and on the 11th day of April, 1911, the court sustained the motion for a new trial, and set aside and vacated the judgment as to all its parts, and granted a new trial of the cause. From this...