Sullins v. Domer

• Decision Date: 11 February 1936
• Docket Number: 26282.
• Citation: 54 P.2d 391,176 Okla. 45,1936 OK 154
• Parties: SULLINS et al. v. DOMER.
• Court: Oklahoma Supreme Court

54 P.2d 391

176 Okla. 45, 1936 OK 154

SULLINS et al. v. DOMER.

No. 26282.

Supreme Court of Oklahoma

February 11, 1936

Syllabus by the Court.

1. Payment is an affirmative defense in an action for recovery of money and must be expressly pleaded.

2. In an action on promissory note and to foreclose mortgage, the allegation in the answer that "no credits have been given for the payments made on said indebtedness" does not amount to an express plea of payment of any portion of the indebtedness.

3. In an action to recover judgment on promissory note, and to foreclose mortgage made to secure payment thereof, where answer fails to join issue as to the indebtedness due, the case is not one properly triable by a jury within the meaning of section 350, O.S. 1931.

Appeal from District Court, Noble County; John S. Burger, Judge.

Action by Estey C. Domer against Oscar L. Sullins and another. From a judgment for plaintiff, defendants appeal.

Affirmed.

H. A Johnson, of Perry, for plaintiffs in error.

W. M Bowles, of Perry, for defendant in error,

GIBSON Justice.

The parties will be referred to herein as they appeared at the trial, plaintiffs in error as defendants, and defendant in error as plaintiff.

Plaintiff commenced this action in the district court of Noble county seeking judgment against defendants on certain promissory notes, and a decree foreclosing a real estate mortgage given to secure payment of said notes.

Defendants filed answer in the following form:

"That the defendants deny each and every allegation in plaintiff's petition contained, except such as may be hereinafter expressly admitted or alleged.

2. Defendants admit the execution of the note and mortgage set forth in plaintiff's petition, but they deny that there is now due thereon the sum of $560.00 as alleged, and that no credits have been given for the payments made on said indebtedness, and the said defendants demand a jury trial to determine the issue as to the amount due the plaintiff from these defendants, and that the burden be placed on the plaintiff to prove the correct amount due thereon in the first instance with the privilege of the defendants to rebut such proof in case it tends to support the allegations of the petition of plaintiff."

The case was placed on the nonjury docket and regularly called to trial, at which time counsel for defendants appeared and objected to proceeding to trial without a jury. Jury was denied, and plaintiff introduced his evidence and obtained judgment, and defendants appealed.

This appeal presents for review the court's refusal to grant defendants a jury trial.

Where judgment is sought on promissory notes, and foreclosure of mortgage, the action is one "for the recovery of money" within the meaning of section 350, O.S. 1931, and where issue is joined as to the indebtedness due, the case is properly triable before a jury. Holmes v. Halstid, 76 Okl. 31, 183 P. 969; Jones v. Benson, 158 Okl. 25, 12 P.2d 202. The latter case expresses the rule as follows: "In an action to recover judgment on a promissory note, and foreclosure of mortgage lien, made to secure its payment, where issue is joined as to the indebtedness due, the case is one properly triable by a jury."

This rule does not save the defendants in this case. There was no issue joined...