White v. Morrow

• Decision Date: 13 February 1940
• Docket Number: Case Number: 28219
• Citation: 187 Okla. 72,1940 OK 91,100 P.2d 872
• Parties: WHITE et ux. v. MORROW
• Court: Oklahoma Supreme Court

1940 OK 91

100 P.2d 872

187 Okla. 72

WHITE et ux. v. MORROW

Case Number: 28219

Supreme Court of Oklahoma

Decided: February 13, 1940

Syllabus

¶0 1. APPEAL AND ERROR--TRIAL--Verdict in equity case advisory only--Judgment based on verdict not reversed on facts unless against clear weight of evidence.

Where a cause of equitable cognizance is tried to a jury, the verdict is advisory only, and it is the duty of the court to make its own determination of the issues of fact and law, and in such a case this court, on appeal, will weigh the evidence, but will not reverse the judgment on the facts unless it is against the clear weight of the evidence.

2. SAME--QUIETING TITLE--Action to cancel deed and quiet title on ground deed was executed merely as conveyance in trust--Judgment for plaintiff sustained.

Evidence examined, and held that the judgment is not against the clear weight thereof.

3. APPEAL AND ERROR--Instructions not ground of error in equity case.

Instructions to a jury furnish no ground of error on appeal in a case of equitable cognizance.

Appeal from District Court, Grady County; Will Linn, Judge.

Action by Frank I. Morrow against E. White and wife. Judgment for plaintiff, and defendants appeal. Affirmed.

Bailey & Hammerly, of Chickasha, for plaintiffs in error.

John F. Butler, of Oklahoma City, and Hatcher & Bond, of Chickasha, for defendant in error.

DAVISON, J.

¶1 The defendant in error commenced this action, as plaintiff, against the plaintiffs in error, as defendants, to cancel a deed he executed and delivered to them on October 2, 1931, and to quiet his title to the 40-acre tract of land thereby conveyed.

¶2 The parties will hereinafter be referred to as they appeared in the trial court.

¶3 The defendant B. E. White is the wife of the defendant E. White and the sister of the plaintiff. The cause alleged for the relief plaintiff sought was that the deed was not absolute, but was executed and delivered merely as a conveyance in trust.

¶4 In their answer the defendants denied the plaintiff's allegations except the execution and delivery of the deed and claimed that they had paid a good and valuable consideration for same. Apparently upon the theory that said deed was an absolute and binding conveyance vesting title to the land in them, they prayed that their title be quieted against the plaintiff.

¶5 After the jury was impaneled, the defendants requested findings of fact and conclusions of law by the court upon the theory that the cause was one of equitable cognizance. At the close of the trial and before the jury had returned its general verdict in favor of the plaintiff, the defense counsel filed a motion asking the court to discharge the jury and "render a verdict" in favor of the defendants. This motion was also predicated on the ground that the cause was of equitable cognizance, but the same was overruled and exception taken to said ruling. After the verdict was returned, the court entered judgment thereon and subsequently overruled a motion for judgment notwithstanding the verdict and a motion for a new trial, both of which had been filed by the defendants.

¶6 The defendants' assignments of error are merged and dealt with in three general propositions, the first of which is as follows:

"The court erred in refusing to withdraw said cause from the jury and try the same as one of equitable cognizance and to make findings of fact and conclusions of law therein."

¶7 The argument advanced in support of this proposition is based upon the hypothesis that the present action is one of equitable cognizance. Granting the correctness of such a hypothesis, the ultimate question to be decided, then, is: Do the errors assigned constitute cause for reversal? Although this court, in Wat-Tah-Noh-Zhe et al. v. Moore, 36 Okla. 631, 635, 129 P. 877, 878, 879, expressly recognized that it was bound by the decision of the Kansas Supreme Court in Hixon v. George, 18 Kan. 256, holding that under Kansas Statutes identical with sections 5785 and 5786, Comp. Laws 1909 (secs. 350 and 351, O. S. 1931), a cause of equitable cognizance may correctly be submitted to a jury for a general verdict, there seems to be some basis aside from those statutes for the contention that such submission is erroneous. See Apache State Bank v. Daniels, 32 Okla. 121, 121 P. 237. In Millus et ux. v. Lowery Bros., 63 Okla. 261, 164 P. 663, L.R.A. 1918B, 336, it was held error to submit an issue as to the existence of grounds for an attachment to the jury for a general verdict, but it was also held that:

"Such error will necessitate a reversal only when upon an examination of the entire record, it appears that the same has probably resulted in a miscarriage of justice or violates a constitutional or statutory right."

¶8 In that case it was pointed out that there is no constitutional guaranty as to the right of a trial exclusively by the court without the intervention of a jury. The defendants do not, nor could they successfully contend, that they had any statutory right to such a trial of the present case, but they merely quote expressions of this court concerning the right to a jury trial in a cause of equitable cognizance. The decisions cited do not pertain to the court's power to submit such a cause to a jury, but are germane only to the right of a litigant therein to have such power exercised. In other words, they deal only with the right of trial by jury in such cases and constitute no precedent or basis for the creation or maintenance of a "right" to a trial without a jury in any character of action.

¶9 Since the ultimate effect of both of the alleged errors set forth in the defendants' first proposition may perhaps be considered in the aggregate, we will now consider the court's refusal to promulgate findings of fact and conclusions of law before finally determining whether or not the erroneous submission of the present cause to a jury constitutes reversible error.

¶10 The Oklahoma statute pertaining to findings of fact and conclusions of law at the request of one of the parties is section 374, O. S. 1931 (12 Okla. St. Ann. § 611), which reads:

"Upon the trial of questions of fact by the court, it shall not be necessary for the court to state its findings, except generally for the plaintiff or defendant, unless one of the parties request it, with the view of excepting to the decision of the court upon the questions of law involved in the trial; in which case the court shall state in writing, the conclusions of fact found, separately from the conclusions of law."

¶11 It will readily be seen that the quoted statute refers expressly only to cases wherein the questions of fact are tried by the court, and makes no mention of causes wherein such questions have been submitted to a jury or are triable by the court. For this reason said statute is of no assistance in solving the problem before us in the present case. In view of this fact, resort will again be had to Apache State Bank v. Daniels, supra, which has so often been cited for the prescription of the court's duty to enunciate its own judgment upon the issues in a cause of equitable cognizance that has been submitted to a jury for a general verdict. According to the decision in that case, such error does not constitute cause for reversal, if it affirmatively appears that the trial judge "reviewed the evidence and reached the same conclusion as the jury." See, also, the quotation from Dunphy v. Kleinschmidt et al., 11 Wall. 615, 20 L. Ed. .223, appearing in Carter v. Prairie Oil & Gas Co., 58 Okla. 365, 370, 160 P. 319, 321. From an examination of the opinion in the Daniels Case, it is plain that a general finding and conclusion is all that is necessary to meet the requirement of a determination by the court, separate and apart from the verdict of the jury. In the absence of a statutory guide, it is not inappropriate to use this as a criterion or measure of the court's duty to comply with the defendants' request for findings of fact and conclusions of law in the present case. There is no question but what the judgment before us fails to meet this test. The journal entry of said judgment contains nothing but a transcript of the verdict and a decree by the court in conformity therewith. The record reveals no indication that the trial court weighed the evidence or arrived at any independent finding or conclusion, either general or special, upon the issues of fact or of law involved in said cause. However, in the absence of a constitutional or statutory provision requiring the court in such a case to promulgate special findings of fact and conclusions of law, can it be said that the trial court's failure to discharge its duty of incorporating in its judgment a general finding and conclusion has in any manner prejudiced the rights of the defendants or resulted in a miscarriage of justice, when such a finding and conclusion, if promulgated, would not have been contrary to law or against the weight of the evidence? In our opinion this question must be answered in the negative. In Maynard, Ex'r, et al. v. Hustead et al., 185 Okla. 20, 90 P.2d 30, a cause of equitable cognizance was erroneously submitted to a jury and judgment was thereafter entered upon a general verdict, without a determination of the issues of fact or law by the court, but we there held that such error is not cause for the reversal of such a judgment as a determination of the issues of fact, unless the same is against the clear weight of the evidence. We see no reason for not applying the same test to the same errors in the present case, since said errors do not, in themselves, constitute a denial of statutory or constitutional right and it is not argued nor does it appear that the judgment, in itself, is contrary to law.

¶12 This brings us to a consideration of the defendants' second proposition, to wit: "The judgment of the court is clearly contrary to the weight of the evidence." As hereinbefore indicated, the decisive question...