Whiteacre v. Nichols

Decision Date06 September 1906
Citation1906 OK 93,17 Okla. 387,87 P. 865
PartiesNOBLE WHITEACRE v. CLARA E. NICHOLS.
CourtOklahoma Supreme Court
Syllabus

¶0 1. CASE MADE--Extending Time--Powers of Judge. The presiding judge of a district, either at chambers or while sitting as a court: or the judge who tried the case, if clothed with authority by assignment, while in the district, may extend the time in which to make and serve a case made.

2. PLEADING AND PRACTICE--Exhibits--General Demurrer. Where the instrument, which is the basis of the action, is attached, by copy, to the petition and made a part thereof, such copy should be made a part of the petition when construing the allegations thereof as against a general demurrer.

3. NEW TRIAL--Motion for--Necessary Precedent to Appeal. Where the appellant fails to assign, as error, the overruling of the motion for a new trial, in the petition in error, no question is properly presented in this court to review errors alleged to have occurred during the progress of the trial in the court below.

4. DEMURRER--General--Overruled, When. In replevin, by mortgagee petition held not subject to general demurrer, because it fails to allege condition broken in chattel mortgages, and that the notes were due, since the mortgages were attached to the petition and made a part thereof, and contained copies of the notes showing they were past due at the time the suit was instituted; also, the condition that upon default in payment of note, mortgagee was entitled to possession.

Error from the District Court of Lincoln County; before Bayard T. Hainer, Trial Judge.

J. B. A. Robertson, for plaintiff in error.

S. D. Decker & V. S. Decker, for defendant in error.

GARBER, J.,

¶1 This is an action in replevin brought in the district court of Lincoln county by Clara E. Nichols, plaintiff v. Alva Martin and Noble Whitacre, defendants, for the recovery of the possession of 31 head of neat cattle. Alva Martin, one of the defendants and the mortgagor, made no appearance, and Noble Whiteacre, the other defendant, entered a general denial.

¶2 A jury being waived, and the cause submitted to the court, the issues were found in favor of the plaintiff, (Defendant in error), and a judgment given in the alternative that the plaintiff recover the possession of 18 head of cattle described in plaintiff's petition, and if a return thereof could not be had, then, for their value in the sum of $ 324.00, and costs of suit.

¶3 The record shows that the case was tried at the May, 1905, term of the district court of the first judicial district in and for Lincoln county, before Hon. Bayard T. Hainer, presiding judge; and that the time to make and serve a case made was by the court extended 90 days. That thereafter, on the 9th day of August, 1905, at his chambers, the time was further extended 30 days, by Hon. John H. Burford, judge of that district.

¶4 Objection is raised to the consideration of this case by this court upon the ground that the Hon. John H. Burford, the regular presiding judge of said district, not being the trial judge, did not have power to extend the time for making and serving case made.

¶5 Section 544 of Wilson's Statutes, provides:

"The court or judge may upon good cause shown extend the time for making a case and the time which the case may be served;****".

¶6 The above section gives the court, while in session or the judge of the court, power to grant the extension. In this case Hon. Bayard T. Hainer, was the trial judge, while Hon. John H. Burford was the judge of the court, the regular appointed and acting judge of the district court of that county, and in possession of the office, and as such, he had power to grant the extension at chambers. Hulme, et al. v. Diffenbacher, 53 Kan. 181, 36 P. 60: R. R. v. Leeman, 5 Kan. App. 804, 48 P. 932; Wallace v. Caldwell, 50 P. 379.

¶7 Defendant below filed his motion for a new trial, which was overruled and excepted to, but the overruling of the motion is not assigned as error in the petition in error in this case. Hence, the numerous assignments of error alleged to have occurred during the progress of the trial in the court below, are not properly presented in this court, for review.

¶8 It has been repeatedly held by this court, that errors occurring during the trial are not properly presented for consideration, unless a motion for new trial setting forth such errors has been made by the complaining party, acted upon by the trial court, its rulings excepted to, and afterwards assigned as error in the supreme court. Beall v. Ins. Co., 7 Okla. 285, 54 P. 474; Minton v. Shuttee, et al., 11 Okla. 31, and cases therein cited.

¶9 The overruling of the demurrer to plaintiff's petition, however, having been assigned as error in the petition in error, is properly here by transcript, and may be considered.

¶10 In her petition, plaintiff alleged that she was the qualified owner of the cattle in controversy, describing them; that her qualified ownership was by virtue of two chattel mortgages, executed on the 13th and 16th day of January, 1904, by one of the defendants below, Alva Martin, to the plaintiff, to secure the sum of $ 742.25, copies of said mortgages being set out in full, attached, marked exhibits "A" and "B" respectively, and made a part of the petition; that she was entitled to the immediate possession of the property, and that the defendants wrongfully detained the possession thereof from the plaintiff; then followed prayer for judgment for the possession, and damages for wrongful detention.

¶11 It is insisted that the petition herein is fatally defective, in that it did not alleged condition broken, and that the notes for which the mortgages were given as security, were due.

¶12 On demurrer to a petition, as defective, in that it does not state facts sufficient to constitute a cause of action, the petition should be liberally construed with a view to substantial justice between the parties; and a demurrer will only be sustained where the petition presents defects so substantial and fatal as to authorize the court to say, that: Taking all the facts to be admitted, they furnish no cause of action whatever. If the facts stated in the complaint entitled ...

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26 cases
  • Mut. Life Ins. Co. of N.Y. v. Buford
    • United States
    • Oklahoma Supreme Court
    • October 24, 1916
    ...that in order that a waiver may be available it must be specifically pleaded. Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131; Davis et al. v. Board Co. Com'rs, 58 Okla. 77, 158 P. 294. ¶16 The admissions i......
  • Dixon v. Helena Soc'y of Free Methodist Church of N. Am.
    • United States
    • Oklahoma Supreme Court
    • May 22, 1917
    ...in construing the petition and in determining to what relief the plaintiff was entitled under the allegations thereof. Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v Shepard, 35 Okla. 489, 130 P. 131; Davis v. Choctaw County, 58 Okla. 77, 158 P. 294, L. R. A. 1916F, 873; Southern Sur......
  • Friend v. S. States Life Ins. Co.
    • United States
    • Oklahoma Supreme Court
    • October 10, 1916
    ...a part of the petition when construing the allegations thereof on demurrer. Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131; Davis et al. v. Board of County Com'rs, ante, p. 77, 158 P. 294. ¶4 As the court'......
  • Davis v. Bd. of Com'Rs of Choctaw Cnty.
    • United States
    • Oklahoma Supreme Court
    • April 11, 1916
    ...as against a general demurrer, according to the rule heretofore announced in Grimes v. Cullison, 3 Okla. 268, 41 P. 355; Whiteacre v. Nichols, 17 Okla. 387, 87 P. 865; Long v. Shepard, 35 Okla. 489, 130 P. 131. ¶3 The remaining question is: Was the bond void as being against public policy? ......
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