Terrapin v. Barker

Decision Date12 April 1910
Docket NumberCase Number: 238
Citation26 Okla. 93,1910 OK 102,109 P. 931
PartiesTERRAPIN v. BARKER.
CourtOklahoma Supreme Court
Syllabus

¶0 1. CONTINUANCE--Absent Evidence--Showing of Diligence. There is no abuse of discretion in overruling an application for continuance on the account of absent evidence, where no diligence is shown to have been used by the applicant to procure the attendance of the absent witnesses.

2. CONTINUANCE--Absent Witness -- Essentials of Application. An application for continuance must clearly state the facts which applicant expects to prove by the absent witness, and the materiality of such facts must be made to appear from the application.

3. SAME. The application must state that the applicant believes the facts to which the absent witness will testify are true.

4. APPEAL AND ERROR--Harmless Error--Refusal to Strike Surplusage from Pleading. A refusal of the trial court to sustain a motion to strike out parts of a pleading which are surplusage, or which consist of immaterial averments or of evidential facts, is harmless error, unless it appears that the matters which the court refused to strike out materially and prejudicially affected the interest of him who complains of the action of the court.

5. APPEAL AND ERROR--Briefs--Specification of Error. Under rule 25 of this court (20 Okla. xii, 95 P. viii), where a party complains of the admission or rejection of testimony, he should set out in his brief the full substance of the testimony admitted or rejected. A general complaint that the court erred in admitting or rejecting testimony, without specifying the testimony to which the complaint is directed, and his objection thereto, will not be considered.

6. PRINCIPAL AND AGENT--Evidence--Hearsay-- Interpreter for Parties to Transaction. When two persons, speaking a different language, neither of whom is able to understand the language of the other, voluntarily use a third person, who uses the language of both to interpret between them their conversations relative to a business transaction, the interpreter is to be regarded as the agent of each to translate and communicate what he says to the other, and admissions or statements made by one to the other through the interpreter are not hearsay, and the party to whom they are made may testify to them.

Error From District Court, Washington County; T. L. Brown, Judge.

Action by Norman Barker against James Terrapin. Judgment for plaintiff, and defendant brings error. Affirmed.

This action was brought in the district court of Washington county by defendant in error to recover for services rendered by him to plaintiff in error as an attorney, of an alleged reasonable value of $ 1,000, and for expenses incurred and paid out by him for plaintiff in error in rendering said services. From a verdict and judgment in favor of defendant in error, hereafter called "plaintiff," plaintiff in error, hereafter called "defendant," brings this proceeding in error. The facts alleged in the pleadings and established by the evidence, in so far as they are necessary in the consideration of the questions presented by this proceeding, will be stated in the opinion.

H. H. Montgomery and J. P. O'Meara, for plaintiff in error.

W. H. Kornegay, for defendant in error.-- On admissibility of party's statements to witness through an interpreter: Wigmore, Ev. sec. 668; Miller v. Lathrop (Minn.) 52 N. W. 274; Blazenski v. Perkins (Wis.) 45 N. W. 947.

HAYES, J.

¶1 (after stating the facts as above). After announcement of both parties in the trial court that they were ready for trial, a motion by defendant to strike out certain portions of plaintiff's reply to his answer was overruled, and he thereupon filed a motion for continuance, which was also overruled. His motion for continuance stated that he was informed that two certain persons who were absent had information material to his case; that he had a right to expect that they would be in attendance at the trial of his cause. Section 5836 of the Compiled Laws of Oklahoma of 1909 prescribes what an application for continuance on account of the absence of evidence shall contain. It must show the materiality of the evidence expected to be obtained; that due diligence has been used to obtain it; where the witnesses reside, if their residence is known to the party; the probability of procuring their testimony within a reasonable time; and what facts mover believes that the witness will prove; and that he believes them to be true.

¶2 The motion in this case fails to contain several of these essential elements. No showing whatever is made in the application of any diligence used by plaintiff in error to obtain the attendance of the absent witnesses; nor does the affidavit state the residence of but one of said witnesses. No showing is made that their testimony can be procured within a reasonable time; nor is any statement made as to any facts that can be established by them that would be material to the case. It is stated that if one of the witnesses was present he would testify that, "so far as he is informed, defendant in error was not plaintiff in error's attorney in the matter in which he alleges he rendered the services for plaintiff in error." But such evidence would be incompetent. The witness could not be permitted to testify as to his information. The application also fails to state that applicant believes that the alleged facts which the absent witness will testify to are true. An application for continuance could hardly be more defective than the one here relied upon. It is not an abuse of discretion to overrule an application for continuance, where no diligence is shown to procure the attendance of the witnesses (Swope & Son v. Burnham, Hanna, Munger & Co., 6 Okla. 736, 52 P. 924; Kirk v. Territory, 10 Okla. 46, 60 P. 797), and the party applying must clearly state the facts he expects to prove, and their materiality must be made to appear from the application (Murphy v. Hood et al., 12 Okla. 593, 73 P. 261). And even when all the matters prescribed by the statute are set forth in an affidavit for continuance, a continuance will not be granted, if the adverse party consents that on a trial the facts alleged in the affidavit shall be read and treated as a deposition of the absent witness. Section 5836, supra; Chandler v. Colcord, 1 Okla. 260, 32 P. 330. Defendant is in no position to complain that his motion was overruled, for plaintiff would, in all events have been entitled to know what facts he intended to establish by the absent witnesses, in order that he might determine whether he would admit that the witness would so testify; and that such facts might be read to the jury as a deposition of the absent witnesses, rather than to suffer the inconvenience of a continuance.

¶3 Plaintiff's petition alleges, in substance, that he was employed by defendant to perform certain legal services as an attorney for him in a proceeding to remove his restrictions as a member of the Cherokee Tribe of Indians on his right to alienate a portion of his allotment; that plaintiff rendered such services; that the same were of the reasonable value of $ 1,000; and that in rendering said services he expended, in furtherance of defendant's interest, and at his request, the sum of $ 241.10, and prayed for recovery of the value of his services and expenses incurred by him.

¶4 Defendant answered in three paragraphs, by the first two of which he made general and specific denial of the matters set forth in the petition. The third paragraph of the answer reads as follows:

"For further answer to plaintiff's petition the defendant, James Terrapin, says that he is a full-blood Cherokee Indian and unable to speak the English language, and that the plaintiff, Norman Barker, proposed to him that he, said Barker, would attend to having the restrictions against alienation on defendant's land removed for town-site purposes, without any expense to the defendant, and under this proposal, and with this understanding, plaintiff did all that was done by him in reference thereto, not as defendant's attorney, but in the capacity of a prospective purchaser of defendant's land, when the same should be sold, and that he acted for himself and for another purchaser who intended to purchase said land at said sale, and who did in fact purchase same, and that plaintiff and his associates acted, not in the interest of this defendant, but in their own interest, which interests were those of prospective purchasers, and which interests were inconsistent with and in conflict with the interest of this defendant."

...

To continue reading

Request your trial
24 cases
  • Mutual Life Insurance Company v. Summers
    • United States
    • Wyoming Supreme Court
    • January 5, 1912
    ... ... Ohio St. 104; Stitzel v. Ehrman, 114 S.W. 280 (Ky.); ... Hilliard v. Wis. Life Ins. Co., 137 Wis. 208, 117 ... N.W. 999 (Wis.); Terrapin v. Barker, 26 Okla. 93, ... 109 P. 931 (Okl.); Dykeman v. Johnson, 93 N.E. 626 ... (Ohio); Corry v. Campbell, 25 Ohio St. 134; ... Miller v ... ...
  • Wood v. French
    • United States
    • Oklahoma Supreme Court
    • November 18, 1913
    ...& Co., 6 Okla. 736, 52 P. 924; Kirk v. Territory, 10 Okla. 46, 60 P. 797; Murphy v. Hood et al., 12 Okla. 593, 73 P. 261; Terrapin v. Barker, 26 Okla. 93, 109 P. 931; Crutchfield v. Martin, 27 Okla. 764, 117 P. 194; Kilmer v. St. L. & Ft. S. & W. Ry. Co., 37 Kan. 84, 14 P. 465; Struthers v.......
  • Landon v. Morehead
    • United States
    • Oklahoma Supreme Court
    • August 20, 1912
    ...refused to strike out materially and prejudicially affected the interest of him who complains of the action of the court. Terrapin v. Barker, 26 Okla. 93, 109 P. 931. The action of the court in the particulars complained of did not constitute such error as, alone, would warrant a reversal. ......
  • Denman v. Brennamen
    • United States
    • Oklahoma Supreme Court
    • April 29, 1915
    ...matter, but rather states evidential facts, constituting an answer to the petition, to which a reply need not be filed See Terrapin v. Barker, 26 Okla. 93, 109 P. 931. However, as defendants went to trial without objection, it is now too late to raise the question. Holt v. Holt, 23 Okla. 63......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT