Sunday v. Prentise

• Decision Date: 11 February 1899
• Parties: PINSON & SUNDAY v. S. R. PRENTISE
• Court: Oklahoma Supreme Court

1899 OK 37

56 P. 1049

8 Okla. 143

PINSON & SUNDAY v. S. R. PRENTISE

Supreme Court of Oklahoma

Decided: February 11, 1899

SYLLABUS

¶0 1. JUSTICE COURTS--Appeal--Pleading--Amendment. Where a case is appealed from a justice court, the right to amend the pleadings before the trial is commenced rests largely within the sound discretion of the district court, which will not be disturbed by this court unless such discretion has been abused.

2. EVIDENCE--Findings not Disturbed, When. A finding of the trial court upon a controverted question of fact will not be disturbed by this court unless such finding of the court is clearly against the weight of the evidence.

3. STATUTE OF FRAUDS. In this case the evidence is conclusive that the transaction between the plaintiffs and the defendant was merely a parole promise or agreement to answer or pay the debt of another, and hence it clearly comes within the very letter of section 821 of the statute of frauds of this Territory, and cannot be enforced.

4. HARMLESS ERROR. Where it clearly appears from the record that the trial court rendered a proper judgment in the case, the overruling of the motion for a new trial pro forma is not prejudicial error affecting the substantial rights of the parties excepting thereto.

5. EVIDENCE--Sufficient to Sustain Findings. Where a case is tried by the court without a jury, and the court overrules a motion for a new trial pro forma, refusing to hear it on its merits, the findings of fact and the judgment of the court thereon will not be disturbed by this court if the evidence is sufficient to sustain such findings and judgment of the court.

Error from the District Court of Kay County; before A. G. C. Bierer, District Judge.

Action by Pinson and Sunday, against S. R. Prentise. A judgment for plaintiffs before a justice was reversed, and plaintiffs bring error. Affirmed.

Ed. L. Peckham, for plaintiff in error.

T. J. Blevins, and Dale & Bierer, for defendant in error.

HAINER, J.:

¶1 This was an action brought by the plaintiffs in error against the defendant in error, in a justice court in Kay county, to recover $ 9.50 for work and labor performed for one C. M. Houghland. To the plaintiff's bill of particulars, the defendant filed an answer containing a general denial. The cause was tried without a jury, and judgment was rendered in favor of the plaintiff for $ 9.50. The defendant appealed from this judgment to the district court, where the cause was tried de novo by the court, both parties waiving a trial by jury. The district court held that the claim upon which the plaintiffs based their action was an oral contract, and was within the provisions of the statute of frauds, and therefore void. Judgment was rendered in favor of the defendant for the costs of the action. The plaintiffs bring the cause here on appeal.

¶2 The first error assigned is that the district court erred in not rendering judgment in favor of the plaintiffs, and against the defendant, on the pleadings. This contention is not tenable. The plaintiff's action was based upon a verified account. It is true that the defendant's answer, which contained a general denial, was not verified in the justice court, but, before the case came on for trial in the district court, the defendant asked and obtained leave from the district court to file an amended answer, which was duly verified. Section 4766, Statutes of Oklahoma, 1893, provides: "That the case shall be tried de novo in the district court, upon the original papers on which the case was tried before the justice, unless the appellate court, in furtherance of justice, allow amended pleadings to be made, or new pleadings to be filed." Where a case is appealed from a justice court, the right to amend the pleadings before the trial is commenced rests largely within the sound discretion of the district court, which will not be disturbed by this court unless such discretion has been abused. In this case, it was certainly in the furtherance of justice to permit the defendant to amend his answer.

¶3 The second assignment of error is that the judgment of the district court is not sustained by the evidence. Upon the trial of this cause, the district court, after hearing all the evidence, made the following finding: "That the contract claimed by the plaintiffs in this action was an oral contract, and falls within the statute of frauds, and is void;" and upon this finding, the court entered judgment in favor of the defendant for the costs of the action.

¶4 We have repeatedly held that a finding of the trial court upon a controverted question of fact will not be disturbed by this court unless such finding of the court is clearly against the weight of the evidence. (Penny v. Fellner, 6 Okla. 386, 50 P. 123; United States National Bank v. National Bank of Guthrie, 6 Okla. 163, 51 P. 119; Gillette v. Murphy, 7 Okla. 91, 54 P. 413; Mulhall v. Mulhall, 3 Okla. 252, 41 P. 577.)

¶5 In this case the evidence is conclusive that the transaction between the plaintiffs and the defendant was merely a parole promise or agreement to answer or pay the debt of another, and hence it clearly comes within the very letter of section 821 of the statute of frauds of this Territory, and cannot be enforced. (Gump v. Halberstadt, [Ore.] 15 P. 467; Nelson v. Boynton, 44 Mass. 396, 3 Met. 396; Mallory v. Gillett, 21 N.Y. 412; Waldo v. Simonson, 18 Mich. 345; Stewart v. Campbell, 58 Me. 439; Hooker v. Russell, 67 Wis. 257, 260, 30 N.W. 358; Cook v. Barrett, 15 Wis. 596.)

¶6 It is next contended by the plaintiffs in error that the court erred in overruling the motion for a new trial "pro forma," and that this was "grievous error," for which this case should be reversed, and remanded for new trial. In support of this contention, counsel has cited the following authorities: Larabee v. Hall, 50 Kan. 311, 31 P. 1062; State v. Summers, 44 Kan. 637, 24 P. 1099; Railroad Co. v. Keeler, 32 Kan. 163, 4 P. 143; State v. Bridges, 29 Kan. 138; Clark v. Imbrie, 25 Kan. 424, 425; City of Atchison v. Byrnes, 22 Kan. 65; Nesbit v. Hines, 17 Kan. 316. We have examined with some degree of care these decisions of the supreme court of Kansas cited in support of the doctrine, and after reviewing these cases, we find that only one of the authorities cited has any application to the case at bar, and that is the case of State v. Summers, 44 Kan. 637, 24 P. 1099 where it was decided that "it is error for the trial court to overrule a motion for a new trial merely pro forma even if the case is submitted to the court for trial without a jury, by agreement of the parties," In support of this case, Chief Justice Horton, who rendered the opinion, cited the following authorities: Nesbit v. Hines, 17 Kan. 316; City of Atchison v. Byrnes, 22 Kan. 65; Clark v. Imbrie, 25 Kan. 424, 425; State v. Bridges, 29 Kan. 138; Railroad Co. v. Keeler, 32 Kan. 163, 4 P. 143. In Larabee v. Hall, 50 Kan. 311, 31 P. 1062, the court held that it was grievous error for the trial court to overrule a motion for a new trial pro forma. This opinion was based upon the decision in the case of State v. Summers, and authorities there cited.

¶7 The case of Nesbit v. Hines, 17 Kan. 316, has been uniformly cited in support of this rule of practice. But this case is not in point. In this case, the court held that, where a motion for a new trial is not filed within the statutory time, the district court does not err in overruling it. And any matter for which a new trial may be granted is waived by the neglect of the party to move for a new trial. The case of City of Atchison v. Byrnes, 22 Kan. 65, follows the rule laid down in the case of Nesbit v. Hines. In the case of Clark v. Imbrie, 25 Kan. 424, 425, the court held that as no "errors of law occurring at the trial" were stated in the motion for a new trial, they were deemed waived, and such errors could not be considered by the supreme court. The rule in Nesbit v. Hines and City of Atchison v. Byrnes was followed. In none of these cases did the question arise that it was error to overrule the motion for a new trial pro forma. In the case of State v. Bridges, 29 Kan. 138, was the first time the court passed upon the question that the...