Settle v. Crawford

• Decision Date: 15 March 1932
• Docket Number: Case Number: 20671
• Citation: 9 P.2d 38,155 Okla. 291,1932 OK 214
• Parties: SETTLE v. CRAWFORD et al.
• Court: Oklahoma Supreme Court

1932 OK 214

9 P.2d 38

155 Okla. 291

SETTLE v. CRAWFORD et al.

Case Number: 20671

Supreme Court of Oklahoma

Decided: March 15, 1932

Syllabus

¶0 1. Appeal and Error--Trial--Remarks of Trial Judge, Whether Prejudicial or Harmless.

A trial judge should refrain from any remark or demeanor during the conduct of a trial which might have a tendency to indicate an opinion as to the merits of the case or the truth or falsity of the testimony of witnesses. Where that rule has been violated and the violation thereof has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right, the judgment of the trial court will be set aside and a new trial will be granted, but where the judgment of the trial court is supported by the evidence and is clearly just, it should not be reversed by reason of a violation of the rule where the substantial rights of the plaintiff in error have not been violated.

2. Same--Remarks of Judge Held not Prejudicial.

Record examined, and held not to show a miscarriage of justice or a substantial violation of the constitutional or statutory rights of the plaintiff in error.

Appeal from District Court, Carter County; Asa E. Walden, Judge.

Action by Bernice Settle against Mrs. W. M. Crawford and another. Judgment for defendants, and plaintiff appeals. Affirmed.

Sigler & Jackson, for plaintiff in error.

Brown & Brown, for defendant in error Mrs. W. M. Crawford.

W. F. Bowman and Thos. Norman, for defendant in error J. A. Bodovitz.

ANDREWS, J.

¶1 This is an appeal from a judgment of the district court of Carter county. The plaintiff in that action appealed to this court. Hereinafter the parties will be referred to as they appeared in the trial court.

¶2 The action was in replevin for possession of certain personal property consisting of furniture and household goods held by the defendants, and the prayer was for the possession of the property or for its value, which was alleged in the petition and affirmed in the affidavit in replevin to be of the value of $ 1,000. The basis of the action was an alleged default by the defendant Crawford in the payment of the balance due on a number of promissory notes given by the defendant Crawford to the plaintiff and secured by a chattel mortgage on the property sought to be recovered in the action. The defendant Crawford, in her answer to the petition of the plaintiff, alleged a conversion of the property by the plaintiff. She prayed for judgment against the plaintiff in the amount of the value of the property converted and attorney's fees.

¶3 The defendant Bodovitz answered the petition of the plaintiff and filed a cross-petition against her. In his cross-petition he alleged that he was the owner of the building in which the property was situated at the time the action was instituted and that he rented the building to the plaintiff by a written contract by the terms of which he was given a lien on the property involved in this action. He prayed for a judgment against the plaintiff in the amount of the rent due and for a lien on the property superior to the mortgage lien of the plaintiff. There was a prayer for damages to the building, but inasmuch as he did not appeal from the judgment denying that prayer, it will not be further considered herein. The defendant Crawford denied the allegation of the cross-petition.

¶4 The jury returned a verdict for the defendant Bodovitz for rent due in the sum of $ 200. It found the value of the property taken in the replevin action to be $ 800. It found that there was no agreement between the plaintiff and the defendant Crawford that the plaintiff might take possession of the property in settlement of the balance due to her. The trial court rendered judgment in favor of the defendant Bodovitz in the sum of $ 200 against the plaintiff and the defendant Crawford. It rendered judgment against the plaintiff and her bondsmen in favor of the defendant Crawford for the sum of $ 273.30, which was the difference between the amount admitted to be due the plaintiff from the defendant Crawford and the value of the property converted after allowing the $ 200 to the defendant Bodovitz. The plaintiff alone appealed.

¶5 In her brief the plaintiff presented one assignment of error, to wit:

"That the court made certain remarks and comments on the weight of the testimony, and that these certain remarks reflected on the plaintiff"

--her other contentions being abandoned, and that issue is the only issue for determination by this court.

¶6 This court has often admonished trial courts to refrain from any remark or demeanor touching the subject under investigation in the trial which might have a tendency to indicate the opinion of the trial court as to merits of the case, or the truth or falsity of the testimony of witnesses, and has held such conduct to be erroneous. City of Newkirk v. Dimmers, 17 Okla. 525, 87 P. 603; Pressley v. Inc. Town of Sallisaw, 54 Okla. 747, 154 P. 660; Aetna Life Ins. Co. v. Kramer, 65 Okla. 165, 165 P. 179. In Sawyer v. Brown, 108 Okla. 265, 236 P. 404, the judgment was reversed and the cause was remanded with directions to grant a new trial for prejudicial error consisting of the excluding of offered testimony and the attitude and demeanor of the trial court in the presence of the jury. The opinion does not reflect what action might have been taken had there been no question as to the excluding of testimony and had the attitude and demeanor of the trial court in the presence of the jury alone been under consideration.

¶7 Under the provisions of section 2822, C. O. S. 1921, we are required to ascertain, if possible, whether or not the errors alleged "probably resulted in the miscarriage of justice, or constitutes a substantial violation of the...