Stanard v. Sampson
| Decision Date | 13 January 1909 |
| Citation | 99 P. 796,23 Okla. 13,1909 OK 13 |
| Parties | STANARD v. SAMPSON et ux. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
In all cases triable by a jury, the parties thereto are entitled to have a general verdict returned, and at the request of any party thereto, in addition to the general verdict, to have the jury directed to find upon particular questions of fact to be stated in writing by the party or parties requesting the same.
1a. When any party to an action triable by by a jury permits the general verdict to be dispensed with by order of the court and the answers or findings upon the particular questions of fact to be returned into open court and recorded, without any objection, and afterwards files a motion for judgment in his favor thereon, he will not be permitted thus to induce the court to commit an irregularity, and, after speculating upon its result in seeking a judgment thereon in his favor, be heard on review here to complain because no general verdict was returned, but same will be treated as waived.
[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 823, 824; Dec. Dig. § 349; [*] Appeal and Error, Cent. Dig. §§ 3612-3616; Dec. Dig. § 884. [*]]
When a jury return their answers to the particular questions submitted, and no motion for a new trial is filed for a re-examination of the facts or to set same aside, the only question for the trial court is to determine whether or not it is proper to render judgment on the facts as found, as applied to the pleadings.
2a. Where a party moves for judgment in his favor on a special verdict, no motion for a new trial or to set aside such findings having been made, and excepts to the action of the court in rendering judgment on such findings, he thereby admits, so far as such action of the court is concerned, that the special findings state the facts fully and correctly.
[Ed Note.-For other cases, see Trial, Cent. Dig. §§ 875-878; Dec. Dig. § 366. [*]]
A general verdict not having been returned, but answers to specific questions, both sides having filed and presented motions for judgment thereon, in the absence of a timely objection with proper exceptions, and the assigning of such action as error in a motion for a new trial, the same will not be reviewed here.
[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1315-1324; Dec. Dig. § 218; [*] Trial, Cent. Dig. §§ 818, 875.]
When the special answers or findings are returned, the jurors each being polled ad seriatim answered that the same as read by the clerk were his. No objection was made by either party, or request, that such special findings or answers should be signed, and each party filed and presented a motion for judgment in his or their favor on such special findings. Held, that this was a waiver of the irregularity in the foreman not signing the answers or findings as required by the statute.
[Ed. Note.-For other cases, see Trial, Dec. Dig. § 366. [*]]
If the consideration of a note is partly illegal, the whole note is void; and, where the note is given in settlement of pre-existing debts, in addition to certain sums of money advanced to one of the makers at the time of signing same, and also for the agreed purpose of discontinuing a pending prosecution against one of the makers thereof for a crime, such note, being entire and indivisible, is void, and there can be no recovery thereon.
[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 222; Dec. Dig. § 112. [*]]
Where a part of the consideration for an agreement is for the discontinuance of a prosecution for a crime, the ratification of such agreement is opposed to public policy, and cannot be permitted.
6a. Where a contract is void on the ground that it involves the commission or compounding of a crime, there can be no confirmation or ratification of same without it being affected with the original taint. Any subsequent ratification of same between the same parties is illegal.
Error from District Court, Oklahoma County.
Action by E. C. Stanard against Samuel Sampson and wife. Judgment for defendants, and plaintiff brings error. Affirmed.
On the 21st day of July, A. D. 1905, the plaintiff in error, as plaintiff, commenced his action in the lower court against the defendants in error, as defendants, by petition, alleging that on the 28th day of March, A. D. 1905, the said defendants Samuel Sampson, as husband, and Ellen Sampson, as his wife, for a valuable consideration executed and delivered to E. T. Carson and J. T. Dixon their certain promissory note of that date, in the sum of $600, payable on the 10th day of April, A. D. 1905, with interest from maturity at the rate of 12 per cent. per annum, and the additional sum of $100 as attorney's fees should said note be placed in the hands of an attorney for collection; that to secure the payment of said note said defendants executed and delivered to said Carson and Dixon a certain mortgage on the southeast quarter of section 24, township 10 N., range 1 E. of the Indian Meridian, which was duly recorded in the office of the register of deeds of Cleveland county, territory of Oklahoma, in Book 19 of Mortgages at page 159; that said mortgage was a first lien on said premises, and on the 30th day of March, after the execution of said note and mortgage by said defendants, and prior to the maturity thereof, for value paid by the plaintiff to them, the said Carson and Dixon duly assigned to the plaintiff all of their right, title, and interest in and to said note and mortgage, and the said plaintiff is now the owner of same, and entitled to all the money, or moneys, due thereon, and to have the same foreclosed; that by the terms and conditions of said note and mortgage, when the same became due and payable, in the event that same was not paid at such time, then and there the owner and holder of said note and mortgage should be entitled to the possession of said premises; that said note was not paid at maturity, and that there was then due thereon the said sum of $600, with interest and the attorney's fee; that the other defendants J. O. Blakeney and Willis Jackson have, or claim to have, some interest in and to said premises, but that their interest, if any they have, or either of them, is inferior and subject to the interest of the plaintiff. Then follows the prayer for the foreclosure and proper relief. On the 20th day of July, A. D. 1905, the defendants Samuel Sampson and Ellen Sampson filed their answer to said petition, alleging that they are residents of Cleveland county, Okl., and are husband and wife, and have their residence on the said land as their homestead, but waive all objection to the right of the district court of Oklahoma county to hear, try, and determine said cause, and entered a general appearance therein. They deny that they made their mark to the said note and mortgage, and that the same is their signature, or either of them, that they, or either of them, voluntarily and freely acknowledged the same, and that the said note and mortgage were ever assigned to the plaintiff, or that he is the owner thereof, or that same is a lien on said land, or that the defendants are indebted to the plaintiff in any sum whatever.
They further plead that the defendants are husband and wife, and were living on said land as their homestead, and now so live thereon; that the defendant Samuel Sampson was indebted to one Dixon in the sum of $120, which said Dixon claimed was secured by a chattel mortgage, and that the defendant Ellen Sampson owed nothing whatever thereon, and was in no way liable therefor; that said Dixon, to whom said money was claimed to be due, also claimed that some of the chattel property described in the mortgage had been made away with and sent another man by the name of Dixon to arrest the said Samuel Sampson on the charge of disposing of mortgaged property without the written consent of the said mortgagee, Dixon, and caused the said Samuel Sampson to be lodged in jail at Shawnee, at which time and place the plaintiff appeared as counsel for the said defendant; that the said two parties by the name of Dixon did then and there conspire to cheat and defraud the said defendants Samuel Sampson and Ellen Sampson and then and there, with the said debt to Dixon as a basis, added thereto the costs of the said Dixon, who acted as constable, and the attorney's fees for plaintiff, until the amount of said debt was made to be $600; that during this negotiation the defendant Ellen Sampson was in Oklahoma City, and was telegraphed to, to come at once to Shawnee, as her husband was in jail, and in response to said telegram she went to Shawnee, where she was met by her son, who directed her to the store of the said Dixon who held the alleged mortgage debt, and he then and there proposed to her that she join in a mortgage with her husband on their homestead to secure said sum of $600, her husband then being in jail, and said Dixon then and there promised to see that her said husband was released if she would join in the execution of said mortgage. This she then and there declined to do, but offered to try to raise the money actually owing to the said Dixon, and thereupon started to her home, and had gone as far as the depot at Shawnee when she was seized by three armed policemen and carried to jail in Shawnee, and there confined until the next day; that whilst in jail the said Samuel Sampson agreed to sign a note and mortgage in the sum of $600 in order to secure his release; that on the morning after the said Ellen Sampson had been so incarcerated in jail, she was carried as a prisoner to the office of a notary public in Shawnee, and there was presented to her and her...
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