Smart v. Billings
| Decision Date | 11 September 1934 |
| Docket Number | 22389. |
| Citation | 35 P.2d 923,169 Okla. 26,1934 OK 430 |
| Parties | SMART v. BILLINGS et al. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Where, at the conclusion of a trial had before the court without a jury, the court orally reviews the evidence, and expresses its opinion upon the law and the facts involved in the case, and where there are no special findings of fact and conclusions of law asked for, and where the findings and judgment of the court are embodied in a journal entry containing a general finding on the issues, the oral opinion expressed by the judge performs no office in a case-made, and cannot be considered by this court on appeal from a judgment of the trial court.
2. Where a jury is waived and the cause is tried to the court and the finding of the court is general, such finding is a finding of every special thing necessary to be found sustaining the general judgment, and such finding, when reasonably supported by the evidence in the case, is conclusive on the Supreme Court upon all doubtful and uncertain questions of fact so found.
3. Where a jury is waived and the cause tried to the court, the judgment of the court must be given the same force and effect as the verdict of a properly instructed jury, and, if there is any competent evidence reasonably tending to support the judgment of the trial court, the same will not be disturbed on appeal.
4. Record examined and held that the judgment of the trial court is sustained by competent evidence.
Appeal from District Court, Oklahoma County; Lucius Babcock, Judge.
Action by Gladys H. Smart against T. J. Billings and others. From a judgment in favor of the defendants, the plaintiff appeals.
Affirmed.
Fred L Hoyt, Roger L. Stephens, and W. N. Mounger, all of Oklahoma City, for plaintiff in error.
C. L Billings, of Tulsa, A. W. Billings, of Woodward, and James V Billings, of Tulsa, for defendants in error.
This is an appeal by the plaintiff from a judgment of the district court of Oklahoma county in favor of the defendants therein. The action involves the title to certain lots in Oklahoma City.
In her petition the plaintiff alleged that she was the owner of the legal and equitable title to the property and entitled to the immediate possession thereof; that the defendants held possession under a deed from the plaintiff dated December 10, 1919; that she executed that deed when she was only sixteen years of age; and that the defendant Billings had mortgaged the property to the defendant Rowlett. She prayed for possession, rents, and profits, cancellation of her deed to the defendant Billings, cancellation of the mortgage to the defendant Rowlett, and a decree quieting title. The defendants answered by general denial and by pleas of estoppel and laches. A jury was waived by both parties. The court made a general finding for the defendants. The plaintiff appealed.
The plaintiff contends that the deed executed by her was void for the reason that she was under the age of eighteen at the time of the execution thereof. In the presentation of that contention the plaintiff has assumed that the trial court found that the plaintiff was under the age of eighteen at the time of the execution by her of the deed to the defendant Billings. That assumption is based upon statements of the trial judge prior to the rendition of the judgment. No party to the action requested the court to make findings of fact and none were made. The statements made by the trial judge are not a part of the record and will not be considered by this court on appeal. See Forbes v. Becker, 150 Okl. 281, 1 P.2d 721, 80 A. L. R. 1; Guss v. Nelson, 14 Okl. 296, 78 P. 170; James v. Coleman, 64 Okl. 99, 166 P. 210; Ruby v. Warrior, 71 Okl. 82, 175 P. 355; and Dixon v. Stoetzel, 136 Okl. 302, 276 P. 730.
The general finding for the defendants was a finding upon every material issue necessary to support the judgment. See Barnett et al. v. Hentges, 111 Okl. 91, 238 P. 188, National Bank of Commerce v. Shepard, 116 Okl. 113, 243 P. 749, and Crutchfield v. Griffin, 139 Okl. 35, 280 P. 1075.
The age of the plaintiff at the time she executed the deed was an issue in the cause. The trial court determined that issue against the...
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