Sherman v. Randolph

• Citation: 1903 OK 97,74 P. 102,13 Okla. 224
• Parties: HATTIE SHERMAN v. J. D. RANDOLPH.
• Decision Date: 10 September 1903
• Court: Supreme Court of Oklahoma

1903 OK 97

74 P. 102

13 Okla. 224

HATTIE SHERMAN v. J. D. RANDOLPH.

Supreme Court of Oklahoma

Decided: September 10, 1903

Syllabus

¶0 1. VENDORS LIEN--Foreclosure--Jury. In an action for Judgment on notes, and foreclosure of a vendor's lien securing them, when an issue is joined as to the amount due, the trial must be had before a jury, unless a jury is waived.

2. VERDICT--Sustained, When. Where the issues are properly submitted to, upon instructions given by the court, and a verdict returned by a jury, and finding and Judgment thereon by the trial court, this court cannot say that the verdict, finding and Judgment are erroneous, in the absence of the evidence and instructions of the court.

An action by plaintiff in error against defendant in error, in the district court of Oklahoma county, to recover upon three promissory notes, and to foreclose vendor's lien. Trial before the court and jury; verdict and judgment for the plaintiff for the sum of $ 18. Motion for new trial overruled, and exception; plaintiff in error brings case here by petition in error for review.

June, 1903, Decided

Error from the District Court of Oklahoma County; before B. F. Burwell, Trial Judge.

J. S. Jenkins, for plaintiff in error.

Shartel, Keaton & Wells, for defendant in error.

BEAUCHAMP, J.:

¶1 This action was commenced by Hattie Sherman, plaintiff in error, against J. D. Randolph, defendant in error, in the district court of Oklahoma county, on three certain promissory notes, dated Oct. 18, 1898, and due respectively in six months, eighteen months and thirty months, said notes sued on being part of the purchase price of lots 18 and 19, in block 14, in the Military addition to the city of Oklahoma City. On the date of said notes, the 18th day of October, 1898, the plaintiff, Hattie Sherman, executed a deed to the said lots to the defendants, J. D. Randolph, and retained a vendor's lien in said deed to secure the payment of the notes sued on; and in her petition the plaintiff prayed judgment in the amount of said notes, interest and attorney's fees, and also a foreclosure of her vendor's lien on said lots. Defendant answered alleging failure of consideration for each of the three notes sued on; also overpayment of the original purchase price for the real estate described in the deed, and that the notes were given on the theory that there was a balance still due on the purchase price of the lots; and the defendant demanded judgment for the sum overpaid by him. The plaintiff by reply denied these allegations. The cause was tried before the court, and jury, who returned a verdict for the plaintiff for the sum of $ 18.

¶2 Attached to the petition in error is what purports to be a "case-made," which contains the petition of the plaintiff, the answer and cross-petition of the defendant, the reply of the plaintiff, verdict of the jury, two special interrogatories and answers of the jury, motion for a new trial, and journal entry or order overruling the motion for a new trial, and judgment of the court. While the record recites "that on the 12th day of March, 1901, said cause came on for trial before a good and lawful jury, and both parties announced ready for trial, and evidence being introduced, and being duly instructed by the court orally on questions of law, and there being no objections to said instructions, the said cause was duly argued by counsel for both parties and submitted to the jury, the jury returned into court their verdict and special findings," the record does not disclose the evidence, the instructions of the court or anything more than as herein stated.

¶3 Counsel for plaintiff in error in his brief contends that "this is a case in equity, and the defendant was not entitled to a jury as a matter of right, and that the verdict of the jury would be advisory only, and not binding on the court. It is the duty of the court to render a judgment in accordance with the haw and the evidence as adduced at the trial, and in harmony with the pleadings and prayer for relief." We cannot agree with counsel for plaintiff in error in his contention that the defendant would not be entitled to a jury as a matter of right, where the action is for a judgment on notes and the foreclosure of a vendor's lien securing them, where the amount claimed to be due upon the notes sued on is controverted as in this case. In this connection, we would call attention to the following sections of Wilson's Annotated Statutes of Oklahoma, 1903:

"Section 4453. Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered. * * * "

"Section 4448. Issues arise on the pleadings, where a fact or conclusion of law is maintained by one party and controverted by the other. They are two kinds: first, of law; second,

...