Sch. Dist. No. 38, Le Flore Cnty. v. Sch. Dist. No. 92, Le Flore Cnty.

• Decision Date: 12 May 1914
• Docket Number: Case Number: 3578
• Citation: 140 P. 1144,1914 OK 234,42 Okla. 228
• Parties: SCHOOL DIST. NO. 38, LE FLORE COUNTY, v. SCHOOL DIST. NO. 92, LE FLORE COUNTY.
• Court: Oklahoma Supreme Court

1914 OK 234

140 P. 1144

42 Okla. 228

SCHOOL DIST. NO. 38, LE FLORE COUNTY, v. SCHOOL DIST. NO. 92, LE FLORE COUNTY.

Case Number: 3578

Supreme Court of Oklahoma

Decided: May 12, 1914

Syllabus

¶0 1. APPEAL AND ERROR--Presentation for Review--Case-Made--Evidence. Where a case-made upon appeal does not contain a statement that it contains all the evidence presented upon the trial, no error assigned which requires an examination and review of the evidence can be reviewed by this court.

2. NEW TRIAL--Hearing Before New Judge--Presentation of Error--Disposition of Motion. Where a motion for a new trial is filed, and the judge who tried the cause retires from the bench leaving such motion pending and undisposed of, his successor will, ordinarily, grant a new trial, where the motion involves a review of the evidence taken upon the trial, and the proceedings before the former judge, and the same has not been preserved by case-made or other record so the new judge can review the grounds for new trial.

Error from Court, Le Flore County; P. C. Bolger, Judge.

Action by School District No. 92, Le Flore County, against School District No. 38, Le Flore County. Judgment for plaintiff granting new trial, and defendant brings error. Affirmed.

John R. Pollan, for plaintiff in error

White & Dubois, for defendant in error

RITTENHOUSE, C.

¶1 This action was brought in the county court of Le Flore county, Okla., by school district No. 92, Le Flore county, against school district No. 38, Le Flore county, for judgment in the sum of $ 150. A jury was waived, and the cause submitted to the court, presided over by Hon. James L. Hale, county judge, and the court, after being fully advised in the premises, found for the defendant, and on the 2d day of June, 1910, rendered judgment according to such finding. On June 4, 1910, the plaintiff filed a motion for a new trial, and on the 4th day of February, 1911, said motion came on for hearing before the county court of Le Flore county; Hon. P. C. Bolger, having succeeded said Hon. James L. Hale as judge of said court, was at said time presiding over such court as such judge. The motion for a new trial was sustained by Hon. P. C. Bolger, judge of said court, and a new trial granted.

¶2 There is only one assignment of error presented to this court by the petition in error, and that is: "The said court erred in sustaining a motion for a new trial, and in granting a new trial." The motion contains seven grounds for a new trial, as follows:

"First, because the court erred in holding that the county superintendent had no authority to make the order introduced in evidence, directing defendant to pay plaintiff $ 300; second, because the court erred in finding the facts in favor of the defendant and against the plaintiff; third, because the court erred in finding the law in favor of the defendant and against the plaintiff; fourth, because the court erred in rendering judgment for the defendant and against the plaintiff; fifth, because the court erred in holding that the award of the county superintendent was a division of the taxes levied and uncollected, and not an equitable distribution of the property of said school district No. 38; sixth, because the judgment of the court is contrary to the evidence; seventh, because the judgment of the court is contrary to the law."

¶3 In order to pass upon any of the grounds contained in the motion for a new trial in this cause, it would be necessary to examine the evidence, and the record does not affirmatively show a recital or statement that the same contains all the evidence introduced at the trial. This court cannot, in the absence of such recital or statement, consider an assignment which would require such examination and review of the evidence. Exendine v. Goldstine, 14 Okla. 100, 77 P. 45; Sawyer & Austin Lbr. Co. v. Champlain Lbr. Co., 16 Okla. 90, 84 P. 1093; Martin v. Gassert, 17 Okla. 177, 87 P. 586; Schriber v. Buckner, 18 Okla. 298, 90 P. 10; Wagner v. Sattley Mfg. Co., 23 Okla. 52, 99 P. 643; Insurance Co. of North America v. Gish, Brook & Co., 25 Okla. 78, 105 P. 672; Turner v. Mills, 32 Okla. 191, 120 P. 1092.

¶4 There is nothing in the record which indicates upon which ground of the motion the court granted a new trial, and, if any one of the several grounds for a new trial was sufficient upon which to base the judgment, the action of the court sustaining the motion will not be disturbed. There is no evidence before this court, and we will presume, in the absence of an affirmative showing in the record, that there was no evidence before the trial judge at the time of the hearing of the motion for a new trial.

¶5 It is admitted in the record that Hon. P. C. Bolger succeeded Hon. Jas. L. Hale as judge of the county court of Le Flore county, before whom this cause was tried, and that the motion for a new trial was pending in said court and undisposed of at the time Hon. P. C. Bolger was inducted into office as such judge, and he, not having heard the evidence, seen the witnesses, observed their conduct, demeanor, and appearances while they were testifying, could not intelligently determine whether the judgment was contrary to the law and evidence, unless he had presided at the trial and was familiar with the evidence and the demeanor of such witnesses. The litigants are entitled, to a judicial determination of the facts by the court who tried the cause, as well as by the jury which heard the evidence, and the court, in the exercise of its discretion under the circumstances in this...