Thomas v. Daube

• Decision Date: 23 May 1922
• Docket Number: Case Number: 10686
• Citation: 209 P. 327,1922 OK 187,87 Okla. 130
• Parties: THOMAS et al. v. WESTHEIMER & DAUBE.
• Court: Oklahoma Supreme Court

1922 OK 187

209 P. 327

87 Okla. 130

THOMAS et al. v. WESTHEIMER & DAUBE.

Case Number: 10686

Supreme Court of Oklahoma

Decided: May 23, 1922

Syllabus

¶0 1. Appeal and Error--Service of Case-Made--Statute.

"The case so made, or a copy thereof, shall, within fifteen days after the judgment or order is rendered, be served upon the opposite party or his attorney. * * *" Section 5242, Revised Laws of Oklahoma, 1910, as amended by chapter 218, Session Laws of 1917.

2. Same--Extension of Time.

"The court or judge may, upon good cause shown, extend the time for making a case and the time in which the case may be served. * * *" Section 5244, Revised Laws of Oklahoma, 1910.

3. Same.

When at the time of overruling a motion for a new trial, and by order of court, the time in which to make and serve a case-made is extended for a period of 60 days, the 60 days' extension of time does not run concurrently with the statutory time of 15 days, but the word "extended" means to stretch out or lengthen the time already provided for by statute, and, in the absence of any words of limitation, begins to run at the expiration of the statutory period of time.

4. Trial -- Issues Triable by Court -- Jury Trial--Statute.

"Issues of law must be tried by the court, unless referred. Issues of fact arising in actions for the recovery of money or of specific real or personal property, shall be tried by a jury, unless a jury trial is waived, or a reference be ordered, as hereinafter provided." Section 4993, Revised Laws of Oklahoma, 1910.

5. Jury -- Trial by Jury -- Mortgage Foreclosure.

In an action for the recovery of money on promissory notes, although involving the foreclosure of a mortgage on real estate, issue being joined as to the amount due, defendant is entitled to a trial by jury as a matter of right. Choctaw Lumber Co. v. Waldock, 78 Okla. 232, 190 P. 866.

6. Jury--Waiver of Jury Trial--Statute.

"The trial by jury may be waived by the parties, in actions arising on contract, and with the assent of the court, in other actions, in the following manner: By the consent of the party appearing, when the other party fails to appear at the trial by himself or attorney. By written consent, in person or by attorney, filed with the clerk. By oral consent, in open court, entered on the journal." Section 5016, Revised Laws of Oklahoma, 1910.

7. Same--Mortgage Foreclosure--Case.

The record examined, and held, that the plaintiffs in error did not waive a trial by jury.

Error from District Court, Carter County; W. F. Freeman, Judge.

Action by the Deming Investment Company, as plaintiff, to foreclose a certain mortgage against C. W. Thomas and Minnie G. Thomas, his wife, as owners of the land in controversy, and certain other defendants, who were mortgagees and lienholders. Pending the action Minnie G. Thomas died and the action was revived as against her heirs and legal representatives. Westheimer & Daube were defendants claiming under a third mortgage, and recovered a judgment in the trial court. Defendants C. W. Thomas and the heirs and personal representatives of defendant Minnie G. Thomas appeal to reverse the judgment as against Westheimer & Daube. Reversed and remanded.

Rutherford Brett and Eddleman & Sneed, for plaintiffs in error.

J. C. Thompson, for defendants in error.

MILLER, J.

¶1 This action was commenced in the district court of Carter county by the Deming Investment Company, as plaintiff, to foreclose a certain mortgage executed by Charles W. Thomas and Minnie G. Thomas, his wife, on 320 acres of land belonging to Charles W. Thomas, described as follows: The S.W. 1/4 and N. 1/2 of N.W. 1/4 and S.E. 1/4 of N.W. 1/4 and S.E. 1/4 of N.E. 1/4 of section 24, township 5 south, range 2 east, Carter county, Okla.; and 170 acres belonging to Minnie G. Thomas, described as follows: E. 1/2 of S.W. 1/4 and N.W. 1/4 of S.E. 1/4 and W. 1/2 of N.E. 1/4 of S.E. 1/4 and N. 1/2 of S.W. 1/4 of S.E. 1/4 and S.W. 1/4 of S.W. 1/4 of N.E. 1/4 of section 3, township 3 south, range 1 east, Carter county, Okla. The Ardmore National Bank, a corporation, and Max Westheimer and David Daube, a co-partnership, doing business under the firm name and style of Westheimer & Daube, and certain others were made parties defendant.

¶2 The defendants Thomas and Thomas had executed a second mortgage to defendant Ardmore National Bank, and a third mortgage to defendants Westheimer & Daube. These codefendants of Thomas and Thomas filed separate answers and cross-petitions, asking for the foreclosure of their respective mortgages. The other defendants and certain interveners claimed liens upon the land and filed cross-petitions and petitions in intervention, seeking to have their rights under their respective liens adjudicated in this action.

¶3 Thereafter, on application of Westheimer & Daube, a receiver was appointed by the court to collect the rents and profits accruing from the land. The only real controversy in the trial court was on the issues presented by Westheimer & Daube in seeking to foreclose their mortgage. The only errors complained of in this court are regarding the claim and foreclosure proceedings of Westheimer & Daube. Therefore, it will not be necessary for us to consider the proceedings affecting the plaintiff and the other defendants seeking to enforce liens against the above-described land, except in so far as they may affect the claims of Westheimer & Daube. After this action was instituted and the issues joined, and in February, 1918, Minnie G. Thomas died intestate, leaving as her sole surviving heirs at law her husband, Charles W. Thomas, and the following children: Peachie Wilkes, Sue Wyatt, Junie Crim, William W. McCauley, Russell G. Thomas, Charles Cruce Thomas, and Douglas H. G. Thomas, the last three being minors. Thereafter Charles W. Thomas was duly appointed administrator of the estate of Minnie G. Thomas, deceased, and on May 4, 1918, this action was revived as against said administrator.

¶4 Thereafter, and on July 1, 1918, on application of the plaintiff, the Deming Investment Company, another order of revivor was made reviving the action against each and all of the heirs of Minnie G. Thomas, deceased, which said order specifically named each of said heirs as above set forth.

¶5 On September 3, 1918, the district court of Carter county appointed Guy H. Sigler as guardian ad litem to defend for the minor defendants, Russell G. Thomas, Charles Cruce Thomas, and Douglas H. G. Thomas. On December 2, 1918, a motion was filed in behalf of William W. McCauley, which was duly verified by Guy H. Sigler, his attorney, asking for a continuance of said cause, because defendant William W. McCauley had been conscripted under the Selective Service Act and was at said date serving in the United States Army in France. This motion was by the court overruled. Written applications asking for a jury trial were filed by C. W. Thomas and the heirs of Minnie G. Thomas, deceased. These applications were, by the court, overruled and denied.

¶6 On December 9, 1918, the case was tried to the court without a jury, over the objection of the appealing defendants, which resulted in a judgment foreclosing the several mortgages, including the mortgage of Westheimer & Daube. The amount due under this mortgage was one of the issues in the case, and the court rendered judgment for $ 8,926.40, with interest from the date of the judgment, and in addition thereto an attorney fee.

¶7 Defendants C. W. Thomas, administrator of the estate of Minnie G. Thomas, deceased, C. W. Thomas, Peachie Wilkes, Sue Wyatt, Junie Crim, William W. McCauley, Russell G. Thomas, Charles Cruce Thomas, and Douglas H. G. Thomas filed a motion for a new trial, which was overruled by the court; gave notice of appeal; saved all necessary exceptions and appear here as plaintiffs in error. The Westheimer & Daube judgment is the only part of the judgment appealed from and the only part we will consider. In referring to Westheimer & Daube they will be designated as defendants in error.

¶8 The plaintiffs in error have set out 13 specific assignments of error, each of which, excepting the last one, they urge in their brief as grounds for reversing the judgment of the trial court.

¶9 The defendants in error have filed a motion to dismiss this appeal on four specific grounds, questioning the jurisdiction of this court to hear and determine the appeal. As this is a jurisdictional question, it will be the first question determined. The first ground questioning the jurisdiction reads as follows:

"The purported case-made attached to the petition in error herein shows that on the 26th day of December, 1918, the appellants were given 60 days to prepare and serve a case-made, and on the 25th day of February, 1919, appellants were granted a further extension of 60 days, which last extension the court was without authority to make, the 60 days first allowed having expired."

¶10 Under the statutory rules for computation of time, it may be conceded that 60 days from the 26th day of December, 1918, would expire on the 24th day of February, 1919, therefore defendants in error contend that the time to make and serve the case-made expired on the 24th day of February, 1919. To determine this question it is necessary to examine the language of the order itself, and, when examined, we do not agree with this contention. That part of the order necessary for us to consider reads:

"* * * And now for good cause shown, the time is hereby extended for a period of 60 days in which to make and serve case-made herein. * * *"

¶11 Section 5242, Revised Laws of Oklahoma, 1910, as amended by chapter 218, Session Laws of 1917, reads, in part, as follows:

"The case so made, or a copy thereof, shall, within 15 days after the judgment or order is rendered, be served upon the opposite party or his attorney. * * *"

¶12 Section 5244, Revised Laws of Oklahoma, 1910, provides, in part, as follows:

"The court or judge may, upon good cause shown, extend the

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