Ward v. Coleman

• Decision Date: 30 October 1934
• Docket Number: 23585.
• Citation: 39 P.2d 113,170 Okla. 201,1934 OK 617
• Parties: WARD v. COLEMAN. [a1]
• Court: Oklahoma Supreme Court

39 P.2d 113

170 Okla. 201, 1934 OK 617

WARD v. COLEMAN. ^[a1]

No. 23585.

Supreme Court of Oklahoma

October 30, 1934

Rehearing Denied Jan. 8, 1935.

Syllabus by the Court.

1. A party who permits a case to proceed to judgment without having the court act upon a motion made by him must be deemed to have waived his right to have the same acted upon; and this court will not consider an alleged error of the trial court in refusing to sustain the motion, unless the record affirmatively shows that the motion was acted upon by the trial court and exceptions taken thereto by the complaining party.

2. It is well settled that, where a party fails to except to the overruling of his demurrer to the pleadings of the adverse party, such failure renders the ruling of the trial court unavailable for review on appeal.

3. There is a wide difference between the binding effect of a mere contract and the binding effect of a judgment declaring the contract to be valid. The contract may be invalid, and therefore one that the court should not enforce, but, if the court has jurisdiction of the parties and the subject-matter and adjudges that the contract is valid, the judgment is not void, but merely erroneous, and is binding on the parties and their privies until reversed or vacated in the manner provided by law.

4. A judgment is not void or subject to collateral attack because it is based on a mistake of law, and, although erroneous, it is binding on the parties if unappealed from.

5. The requirement of section 220, O. S. 1931, may be waived, and is waived, by the introduction, by the party alleging the execution of a written instrument, of evidence to substantiate his allegation of such execution.

6. If the defendant fails to make objection to an unverified reply before proceeding to trial, either by motion to strike or in some other proper manner, he is deemed to have waived any objection to the plea, on the ground of failure to verify same. The failure to verify cannot be taken advantage of by an objection to the introduction of testimony or be raised for the first time in the Supreme Court.

7. No variance between the allegations in a pleading and the proof is to be deemed material unless it has actually misled the adverse party to his prejudice in maintaining his action or defense upon the merits.

8. The court may, before or after judgment, in furtherance of justice, allow a pleading to be amended to conform to the facts proved, and the judgment of the trial court will not be reversed because of defects or omissions in the pleadings when such defects or omissions are supplied by the proofs.

9. Though there be a variance between the allegations of the pleadings and the facts proved on the trial without objection, yet, if it be a case where an amendment of the pleading ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance, where no injury is shown to have resulted to the complaining party, and the pleading will be treated as amended to conform to the proof.

10. Where the debt or demand is liquidated or certain and is due payment by the debtor and receipt by the creditor of a less sum is not a satisfaction thereof, although the creditor agrees to accept it as such, unless there be a new or additional consideration given.

11. Record examined, and the court holds, that no new or additional consideration was given by defendant for the satisfaction of the judgment in the former case, upon the payment to plaintiff of a sum less than the full amount of said judgment.

12. The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove and all inferences or conclusions which may be reasonably and logically drawn from the evidence are admitted.

13. In the trial of a law case, where there is any competent evidence in the record reasonably tending to support the allegations of the pleadings of the party offering the evidence and which would reasonably tend to support a verdict and judgment in favor of such party, a demurrer to such evidence should be overruled.

14. Where a demurrer to plaintiff's evidence is overruled although on account of some omission in the testimony, it should have been sustained, if thereupon the defendant introduces testimony, and, in so doing, supplies the omission, the error in the ruling on the demurrer is cured, and if, upon all the testimony in the case, the judgment is properly rendered, it will not be disturbed on appeal.

Appeal from District Court, McCurtain County; Geo. T. Arnett, Judge.

Action by Mackey Coleman, formerly Mackey Ward, against Silsainey Ward, formerly Silsainey Johnson. Judgment for plaintiff, and defendant appeals.

Affirmed.

Rehearing denied; WELCH, J., not participating.

M. F. Hudson and Bascom Coker, both of Idabel, for plaintiff in error.

W. T. Williams and J. N. Fortner, both of Idabel, for defendant in error.

SWINDALL Justice.

This action was brought by defendant in error, Mackey Coleman (formerly Mackey Ward), as plaintiff, against Silsainey Ward (formerly Silsainey Johnson), the plaintiff in error herein, as the defendant, in the district court of McCurtain county. We will herein refer to the parties in accordance with their designation in the district court. The trial court treated this action as a suit for a balance due on a judgment, and the parties apparently tried the case and have briefed it on that theory. The amended petition on which the case proceeded to trial sets up that in April, 1928, a former case was filed by the same plaintiff, who was then Mackey Ward, against this defendant, who was then Silsainey Johnson, asking judgment for $50,000 against defendant for the alienation of the affections of plaintiff's husband, Reed Ward; that, prior to the filing of that case, Mackey Ward had obtained judgment against her husband, Reed Ward, for $40 per month separate maintenance and $125 attorney's fee, and, on a cross-petition, the court had refused to grant a divorce to Reed Ward; that, after the filing of the alienation of affections suit, the defendant, Silsainey Johnson, now Ward, proposed and all the parties agreed upon a settlement by the terms of which Silsainey Johnson was to pay plaintiff the sum of $10,000, for which sum she would consent to have judgment rendered against her in said case; that, as a condition precedent to entry of such judgment by consent and the payment thereof, the plaintiff, Mackey Ward, now Coleman, was to release her judgment against Reed Ward for separate maintenance and attorney's fee, and herself file suit and obtain a divorce from the said Reed Ward; that, in accordance with the terms of said agreement, the plaintiff did file suit for divorce and obtain a divorce from Reed Ward, and did release and cause to be canceled of record her judgment against Reed Ward for separate maintenance and attorney's fees, and defendant did go into the district court of McCurtain county, in the alienation of affections suit, and agree to the entry of judgment against her for $10,000, and such judgment was entered on the 7th day of June, 1929, in case No. 6954; that defendant is a full-blood Choctaw Indian, and, as such, her money and property are restricted and not subject to execution; that the Bureau of Indian Affairs authorized the payment of this judgment from her restricted funds and issued its check against this defendant's funds, payable to said defendant to be used in satisfying said judgment, but defendant refused to indorse said check so that it could be used in the payment of said judgment, and would only agree to the payment of $6,000 from her funds on said judgment; that, after a good deal of negotiation, plaintiff and her attorneys of record, on February 7, 1931, accepted payment of $6,000 instead of the full amount of said judgment, which, at that time, amounted to $11,004.35, including the accrued interest and costs, and that, because of defendant's breach of her contract to pay the judgment, plaintiff was damaged in the sum of $5,004.35.

The defendant filed a general demurrer to the petition, which demurrer was overruled, but no exception saved. Defendant's amended answer consists of a general denial and allegations that prior to the institution of this suit the judgment set out in plaintiff's petition was paid in full, and that plaintiff and her attorneys of record had executed in writing a release, discharge, and satisfaction of said judgment, and attached, as an exhibit, a copy of the satisfaction of said judgment, which, on its face, purports to be "in full settlement and satisfaction" of said judgment "for value received," but not naming the specific amount paid thereon. The release is signed and acknowledged by plaintiff before a notary public and is signed by her attorneys of record. Plaintiff's reply was an unverified general denial.

Upon a trial before the court, judgment was rendered for plaintiff for the amount prayed for, and defendant has appealed to this court.

Counsel for defendant in their brief group three assignments of error under their first proposition: (1) Error in overruling defendant's demurrer to plaintiff's amended petition; (2) error in overruling defendant's objection to the introduction of evidence by plaintiff; and (3) error in refusing to dismiss plaintiff's action. All of these objections go to the sufficiency of plaintiff's petition to state a cause of action. At the opening of the trial, when plaintiff offered her first witness, defendant objected to the introduction of any testimony and moved the court to dismiss said cause for six separate reasons, as follows:

"First: That said petition does not state facts sufficient to constitute a cause of action in favor

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