Wiggins v. Sterne
| Decision Date | 20 December 1955 |
| Docket Number | No. 36743,36743 |
| Citation | 293 P.2d 603 |
| Parties | G. L. WIGGINS, Plaintiff in Error, v. A. L. STERNE, Defendant in Error. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
1. Objection that an action is not being prosecuted by the real party in interest should be raised by demurrer where the pleading discloses such fact, and by answer where it does not if such condition is known to the party entitled to object, and if not taken under conditions above set forth, it will be deemed to have been waived.
2. A defendant desiring to take advantage of a defect of parties defendant must promptly interpose an objection in the manner provided by law, and, failing to do so, such defect is waived and the defendant will not be permitted to speculate upon a favorable decision, and, when afterwards he is disappointed by an adverse decision, be allowed to raise such question either in a motion for new trial or in the appellate court.
3. The power to discharge the jury is within the sound discretion of the trial judge, and his exercise of such discretion will not be reviewed by the appellate court, unless it clear abuse appears.
4. Where no fundamental error appears and no objections are made to the instructions as given and no requested instructions on the points complained of are presented to the trial court, any objections to the instructions as given are waived.
5. In a law action the verdict of the jury is conclusive as to all disputed facts and all conflicting statements, and where there is any competent evidence reasonably tending to support the verdict of the jury this court will not invade the province of the jury and will not disturb its verdict and judgment based thereon.
Appeal from the District Court of Tulsa County; W. Lee Johnson, Judge.
Action by A. L. Sterne against G. L. Wiggins, for money judgment for value of assets delivered, based on contract and breach thereof. Judgment for plaintiff and defendant appeals. Affirmed.
Houston, Klein, Melone & Davidson, Tulsa, for plaintiff in error.
H. M. Crowe, Jr., A. C. Saunders, Tulsa, for defendant in error.
The parties will be referred to as they appeared in the trial court.
This action was instituted in the district court of Tulsa County, Oklahoma, by petition of plaintiff against G. L. Wiggins and Western Beauty Supply Company, a corporation, alleging breach of a contract entered into by plaintiff and defendant Wiggins. In said contract the parties agreed to merge the business of A. L. Sterne Company, a corporation, and the business of said defendant Wiggins, known as Western Beauty Supply Company, which he was operating as an individual.
The contract provided that said parties should place the assets of said businesses in a new corporation to be known as Western Beauty Supply Company; that the new company so formed should assume all the liabilities of each business so merged and each party to the contract should receive stock in the new company for the excess of his assets placed in the company over his liabilities.
The plaintiff charged a breach of the contract by the defendant Wiggins in having failed to complete the organization of the corporation, refusing to issue stock, etc., and prayed for a judgment for the amount of the assets he had delivered to defendant less such debts as the defendant had paid for plaintiff.
The defendant Wiggins contended by his separate answer that the greater portion of the merchandise delivered to him by plaintiff was used, damaged and unsalable, and that he was required to pay for plaintiff other accounts than those plaintiff represented would have to be paid; that plaintiff failed and refused to devote his time and efforts to the business; continued to operate the A. L. Sterne Company, and abandoned the business of Western Beauty Supply Company.
Plaintiff replied to defendant's answer by way of general denial.
The defendant, Western Beauty Supply Company, a corporation, was in default at time of trial.
The cause was presented to a jury resulting in a verdict for plaintiff, and from the judgment based thereon defendant appeals.
The record reveals that A. L. Sterne Company was a family corporation; that the plaintiff was its president; that all its assets were delivered to defendant, some of said assets being in their original containers or cartons addressed to A. L. Sterne Company, a corporation; that physical inventory of such assets was taken by plaintiff and defendant Wiggins; that defendant Wiggins was still in possession of such assets so delivered, which had not been sold; that a corporate charter was issued by the Secretary of State to the new company; that a meeting was held resulting in the election of Wiggins as president, Sterne as vice-president, and one George E. Wiggins, as secretary-treasurer; that none of the corporate stock was at any time issued. The value of the assets except the furniture and fixtures, and stock of merchandise, was agreed. The testimony as to the value of the furniture and fixtures, and the stock of merchandise was in conflict.
It is first contended by defendant that the action was not prosecuted by the real parties in interest and the court erred in overruling defendant's motion to dismiss when such fact became apparent from the testimony. This court in Shick v. Enid Clinic, 184 Okl. 484, 88 P.2d 329, had this to say: 'Objection that an action is not being prosecuted by the real party in interest should be raised by demurrer where the pleading discloses such fact and by answer where it does not if such condition is known to the party entitled to object and if not so taken under conditions above set forth it will be deemed to have been waived.'
It is well settled in this jurisdiction that every action must be prosecuted in the name of the real party in interest. However, it is equally well settled that such a question raises new matter and should be raised by answer, when such defect does not appear on the face of the pleadings and such condition is known to the defendant. Whilst the petition of plaintiff did not apprise defendant as to whether the plaintiff was the real party in interest, the defendant was the possessor of sufficient physical facts with reference to the assets delivered to him by plaintiff to have enabled...
To continue reading
Request your trial
-
Parrish v. Lilly
...is entitled to have his or her case tried by a fair and impartial jury composed of competent, disinterested jurors); Wiggins v. Sterne, 293 P.2d 603, 606 (Okl.1955) (selection of a new panel is required where any portion of jury is disqualified); State v. Smith, 320 P.2d at 724 (an accused ......
-
Madill Bank and Trust Co. v. Herrmann
...is waived. 12 O.S.1981 § 236 (repealed 1984); 12 O.S.1981 § 268A (repealed 1984); 12 O.S.1981 § 269 (repealed 1984); Wiggins v. Sterne, 293 P.2d 603 (Okl.1956). As Appellants did not raise the issue of defect of parties by motion until some eight or nine months after the filing of their ans......
-
McCoy v. Oklahoma Farm Bureau Mut. Ins. Co.
...Anderson, Bryant & Co., 786 P.2d 1230 (Okla.1989).4 LeFlore v. Reflections of Tulsa, Inc., 708 P.2d 1068 (Okla.1985).5 Wiggins v. Sterne, 293 P.2d 603, 606 (Okla.1956); Walker v. St. Louis-San Francisco Ry. Co., 646 P.2d 593 (Okla.1982); Holley v. Shepard, 744 P.2d 945 (Okla.1987).6 See, Bo......
-
Carraco Oil Co. v. Roberts
...its right to assign the substitution of Roberts for Alpha as plaintiff without notice, as error in this court on appeal. Wiggins v. Sterne, Okl., 293 P.2d 603; Humphrey v. Selected Investments Corp., 206 Okl. 321, 244 P.2d 299; McMillan v. Lane Wood & Co., Okl., 361 P.2d The judgment of a t......