Sarlls v. Hawk

• Decision Date: 11 May 1915
• Docket Number: 4362.
• Citation: 148 P. 1030,46 Okla. 343,1915 OK 279
• Parties: SARLLS v. HAWK ET AL.
• Court: Oklahoma Supreme Court

148 P. 1030

46 Okla. 343, 1915 OK 279

SARLLS v. HAWK ET AL.

No. 4362.

Supreme Court of Oklahoma

May 11, 1915

Syllabus by the Court.

An order overruling a motion to transfer a cause to the superior court, made before the trial was begun, is not an error of law occurring at the trial, and cannot be reviewed under the assignment of error, "Errors of law occurring at the trial"; and, unless presented to the trial court in a motion for a new trial, and assigned as error in the petition in error, the same cannot be reviewed on appeal by petition in error, with case-made attached.

It is not error to exclude a judgment of the county court, finding Mrs. J. E. Vandergrift guilty of an offense, as against Mrs Larenia T. Vandergrift, in the absence of a sufficient showing as to the identity of the parties.

Commissioners' Opinion, Division No. 3. Error from District Court, Pittsburg County; Preslie B. Cole, Judge.

Action by R. Sarlls against S. A. Hawk and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Wright & Boyd, of McAlester, for plaintiff in error.

Leighton E. Worthley, of McAlester for defendants in error.

DUDLEY C.

This is an appeal from the district court of Pittsburg county. The parties here occupy the same position as they did in the lower court, and we shall therefore refer to them accordingly.

The plaintiff and Mrs. Larenia T. Vandergrift, hereinafter referred to as lessee, entered into a written contract, by the terms of which the plaintiff leased to her a furnished rooming house at McAlester, for a term of three years, for a stipulated cash rental, payable monthly. An invoice of the furniture was attached to the contract. The lessee agreed to return the rooming house and furniture, at the expiration of the lease, in as good condition as when received, except the usual wear and tear. There is no express provision in the contract as to what the rooming house should be used for. The following written agreement, signed by the defendants, was attached to the contract:

"One day after date of the above, or upon the failure of Mrs. L. T. Vandergrift to faithfully carry out and perform the foregoing contract, we the undersigned bind ourselves to pay R. Sarlls or order the sum of one thousand dollars ($1000.00) as liquidated and agreed damages for her and in her place and stead. However, providing the undersigned may perform and carry out said contract, in case of said contingency in her place and stead in lieu of said damages.

S. A. Hawk.

H. S. Cohn."

Prior to the expiration of the lease, plaintiff secured possession of the property. The record, however, does not disclose when nor under what circumstances he did so. On March 14, 1911 plaintiff commenced this action against the defendants, who signed said written agreement, to recover the amount specified therein. The petition, after alleging the execution of the contract, the taking possession of the leased premises by the lessee thereunder, and the agreement of the defendants, guaranteeing its performance, then alleges a breach of the contract, in that the rooming house and furniture was not returned in as good condition as when received by the lessee, and that she failed to return a portion of the furniture, and alleges:

"That while occupying said building and without the knowledge or consent of the plaintiff, she [referring to the lessee] engaged in an unlawful business in said building"

--the nature of the unlawful business not being set out. Defendants answered, admitting the execution of the contract and the written agreement attached thereto, but denying the breach of the terms and conditions of said contract. The issues were joined, and thereafter and on November 21, 1911, plaintiff filed a motion to transfer the cause to the superior court of Pittsburg county. This motion was overruled, and exceptions saved. Thereafter, and on January 26, 1912, the case was tried to the court and jury, resulting in a judgment in favor of the defendants. Motion for a new trial was filed overruled, exceptions saved, and the case is here for review.

There are seven assignments of error in the petition in error, only one of which, however, is presented in the brief, and therefore the others are waived. Allison v. Bryan, 26 Okl. 520, 109 P. 934, 30 L. R. A. (N. S.) 146, 138 Am. St. Rep. 988.

Plaintiff urges in his brief that the trial court committed error in overruling his motion to transfer the cause to the superior court. We cannot consider this question, because it was not urged as a ground for a new trial in the motion for a new trial, nor is it assigned as error in the petition in error. In the motion for a new trial, one of the grounds is "Errors of law occurring at the trial and excepted to by the plaintiff." The action of the trial court in...