Twine v. Kilgore

• Decision Date: 16 February 1895
• Parties: TWINE et al. v. KILGORE.
• Court: Oklahoma Supreme Court

39 P. 388

3 Okla. 640, 1895 OK 14

TWINE et al. v. KILGORE.

Supreme Court of Oklahoma

February 16, 1895

Syllabus by the Court.

1. A bill of particulars in a justice's court for work and labor, which states the title of the court and the names of the parties, and alleges that the defendant is indebted to the plaintiff in a sum certain for work and labor performed at the instance and request of defendant, and that the amount is due and unpaid, states a good cause of action. The law does not require that strictness in pleading in justices' courts that prevails in the district courts.

2. It is not the province of an appellate court to take from the jury the right to weigh conflicting evidence and determine controverted questions of fact; and, when there is any evidence reasonably tending to support the verdict, it will be permitted to stand.

3. It is not error to overrule a motion for a new trial based upon the ground of newly-discovered evidence, when such newly-discovered evidence is merely cumulative.

4. A motion for a new trial on the ground of newly-discovered evidence should show that the applicant used due diligence to procure and present the evidence on the trial, and the facts constituting the diligence must be shown, so that the court may determine whether the diligence used was sufficient.

5. While it is a loose method of pleading, and one not to be commended, to sue parties by the initials of their Christian names only, yet, if no advantage is taken of it in the court below, the appellate court will not consider such objection on appeal.

Appeal from district court, Logan county; before Justice Frank Dale.

Action by Alice Kilgore against Twine, Saddler, and Sawner before a justice. Judgment for plaintiff. Defendants appeal to the district court, and from an order for plaintiff they again appeal. Affirmed.

Keaton & Cotteral, for appellants.

H. R Thurston, for appellee.

BURFORD J.

This action was originally instituted before a justice of the peace in Logan county by the appellee, Alice Kilgore, to recover of the appellants for work and labor performed as cook and servant in an hotel. Trial was had before the justice, and judgment rendered in favor of the plaintiff Alice Kilgore. From this judgment the defendants appealed to the district court, where the cause was again tried by a jury, and a verdict rendered in favor of plaintiff in the sum of $45 and $10 additional for her attorney's fees. Motion for a new trial was filed and overruled, and judgment rendered on the verdict. From this judgment the appellants appeal to this court. There are five assignments of error but all the questions raised are embraced in the second and fifth assignments.

In the second assignment of error it is claimed that the court erred in overruling the appellants' demurrer to the appellee's complaint. As the action was originally instituted before a justice of the peace, the petition (or "bill of particulars," as it is designated in the act regulating the practice in justices' courts) is not required to be as certain, definite, and exact as pleadings in the district court. The complaint contains the title of the cause; states the court in which it was filed; and sets out in ordinarily plain language that the defendants are justly indebted to the plaintiff in a certain sum of money for labor and work performed by her during a certain specified time, at the special instance and request of the defendants; that the amount is due, and that payment had been refused. This constitutes a good complaint in a justice's court, and there was no error in overruling the demurrer. It is argued by counsel for the appellants that the demurrer should have been sustained, for the reason that the defendants are described in the complaint by the initials of their Christian names only. There is nothing to show that this objection was...