Page images
PDF
EPUB

the soil, gathered during a single year." One ance, the fraud must be distinctly pleaded, and of the cardinal rules for the interpretation clearly and satisfactorily proven, and will not of statutes, where the language is dubious, is

be applied from doubtful circumstances which

only awaken suspicion." to discover the intent of the law-making pow

[Ed. Note.-For cases in point, see Cent. Dig. er. It seems to us that the reason and spirit vol. 24, Fraudulent Conveyances, & 867.] of the law was to authorize the association

(Syllabus by the Court.) to insure not only the growing crops specifically enumerated in the act, but all other an

Error from District Court, Canadian Counnual crops produced in Oklahoma, and this

ty; before Justice C. F. Irwin.

'Action by the William J. Lemp Brewing is particularly true of one of the staple products of this country. To hold otherwise would

Company against Davis Guion and Fannie be, in our opinion, contrary to reason and

Guion. Judgment for defendants, and plaincommon sense, and where the reason ceases,

tiff brings error. Affirmed. the law ought to cease. We therefore hold Wm. Wallace, for plaintiff in error. Frame that the words "other crops" include grow & Marsh, for defendants in error. ing cotton, and hence the plaintiff was authorized to insure the defendant's cotton GILLETTE, J. This action was comagainst loss by hail, and to take a note for menced in the court below for the purpose the premium. It follows that the petition of subjecting certain real estate, the legal stated facts sufficient to constitute a cause of

title to which was in the defendant Fannie action, and the court erred in sustaining the Guion, to the satisfaction of a judgment demurrer thereto.

against Davis Guion, and in favor of the The judgment of the probate court is re

plaintiff. The defendants Davis Guion and versed, and the cause remanded, with direc

I'annie Guion are husband and wife. The tions to overrule the demurrer to the plain- | property was purchased on the 17th of tiff's petition. All the Justices concurring. March, 1903, at which time Davis Guion

was indebted to the plaintiff in the sum of (17 Okl. 18)

$771.57. In February, 1904, Davis Guion STATE MUT. INS. CO. V. ROARK. SAME

confessed judgment for the amount of said v. BORCHERS. SAME V. STRICK

debt, and upon the return of an execution LAND. SAME V. HANCOCK.

"no property found" this action followed. SAME V. FLETCHER.

The property when purchased was deeded to (Supreme Court of Oklahoma. Sept. 4, 1906.) Fannie Guion. The transaction of the pur

Error from Probate Court, Washita Coun chase was conducted by her husband Davis ty; Richard Billups, Judge.

Guion. A dwelling house was afterwards Actions by the State Mutual Insurance built on the property, and Davis Guion negoCompany against D. Roark, C. A. Borchers, tiated for the lumber and with carpenters T. G. Strickland, J. L. Hancock, and M. E. for its construction, and since its construcFletcher. From judgments sustaining de tion in June, 1903, the property has been ocnurrers to the petition, plaintiff brings error. cupied by the defendants as a homestead. Reversed.

The plaintiff in his petition alleges that the

property was purchased and the title placed Massingale & Shean and J. A. Duff, for plaintiff in error. James W. Smith and T. A.

in the name of Fannie Guion for the purpose

of hindering, delaying, and defra uding the Edwards, for defendant in error.

creditors of Davis Guion, and particularly HAINER, J. The same question is in this plaintiff, and was so placed in her name volved in these cases as was the subject of without consideration being paid therefor by controversy in the case of State Mutual In her. The defendants answered separately, surance Company v. E. O. Clevenger (cause Davis Guion by a general denial, and Fannie No. 1,852) 87 Pac. 583, and by agreement of Guion by an answer denying the allegations counsel the same briefs were to be consider of the petition and pleading title in herself, ed in each of these cases. Upon the author and the occupation of the property as a ity of State Mutual Insurance Company v. homestead. Upon the issue so made up the Clevenger (No. 1,852) supra, the judgment case was tried to the court without a jury. of the probate court in each of these cases Upon the trial an admission of the defendis reversed, and the cause remanded, with di ants was first offered and received in evirections to overrule the demurrer to the dence as follows: "It is admitted by the deplaintiff's petition. All the Justices concur fendants in this case that the purchase price, ring.

for the lots in controversy was paid in two

payments by Davis Guion to Hollis Gillmore, (17 Okl. 131)

the same being lots 7 and 8 in block 12,

Keith's addition to the city of El Reno; that WILLIAM J. LEAP BREWING CO. y. GUION et ux.

at said time he was acting as agent for his (Supreme Court of Oklahoma. Sept. 5, 1906.)

wife, Fannie Guion, and made payment for

the same out of money belonging to her." FRAUDULENT CONVEYANCES-ACTION TO SET ASIDE-EVIDENCE.

And afterwards the testimony of Hollis Gill“In an action to set aside the title to real

more was introduced to the effect that he estate upon the ground of fraudulent convey. sold the lots in question to defendant Davis

Guion, he paying him the money therefor. ror in the order of the court below sustaining The testimony of J. P. Peterson shows that tlie demurrer. he built a residence on the lots, and being The judgment of the trial court is thereasked whether he built it for Davis Guion, fore affirmed, with costs. All the Justices answered: "I can't hardly say whether I concurring excepting IRWIX, J., who premade the contract with him or not. He said sided in the court below, not sitting. he did not have any money of his own." He was then asked to state the transaction and answered: “Well, we had a verbal con

(17 Okl. 16;) tract. We never had a written contract.

ITARRISON BANK V. PORTER. The way I understood it was this: IIe had (Supreme Court of Oklahoma. Sept. 5, 1906.) no money, but his wife had a litle money, REP'LEVIY-EVIDENCE-SUFFICIENCY. and wanted to build a house; that was the

In an action of replerin. when the evidence way I understood it, and I went to work on

does not reasonably support the verdict, the

judgment rendered thereon will be set aside. the house." He made the verbal contract

TEd. Yote. For cases in point, see Cent. Dig. with Mr. Guion for $850 to build the house, vol. 42. Replevin, $8 292-293.] and that he, Guion, delivered him the money

(Syllabus by the Court.) when the work was completed. IIis further testimony was to the effect that Guion and

Error from District Court, Garfield Counhis family moved into the house when it was

ty; before Justice James K. Beauchamp.

Action by the Harrison Bank against J. A. completed. J. R. Smiley testified that he was the manager of the S. M. Gloyd Lumber Com- Porter. Judgment for defendant and plainpany; that he was not with the company

tiff brings error. Reversed. at the time of the purchase of lumber for the Manatt & Sturgis, for plaintiff in error. house. IIe was then asked if he had the ac Roberts & Curran, for defendant in error. count of Davis Guion with the Gloyd Lumber Company, to which he answered: “Yes, BURWELL, J. This is an action in resir; we have the account for his house; the plevin commenced by

plerin commenced by the Harrison Bani: account of Mr. Peterson"; that Davis Guion against J. A. Porter, to recover the possespaid him the money on the account. He sion of two horses. stated he did not know what was done with The plaintiff bases its right to possession the lumber represented by the account; that under the terms of a chattel mortgage exthe transaction was not made through him, ecuted by one G. J. Dahlke to it on two horsbut he collected the money on the bill. No es, described in the mortgage as follows: other testimony was offered to sustain the "One bay horse six years old, weight 1,200 charge of fraud contained in the petition. pounds, branded Con left jaw, valued at At the close of the testimony a demurrer $100. One bay horse, six years old, weight thereto was interposed by the defendant and 1,200 pounds, valued at $125.” The mortsustained by the court, and the case comes to gage also represents the property as being this court predicated upon error in the sus- located in Kiowa county, and immediately taining of such demurrer.

after its execution it was filed with the regIt is a principle as old as English juris- | ister of deeds of that county. J. G. Hill, the prudence that fraud must not only be dis- cashier of the bank, testified that there was tinctly alleged, but must be clearly and satis still due and unpaid on the debt, secured by factorily proven, to entitle a party, seeking the mortgage, the sum of $140.72; that when relief on account of the fraud charged, to a the mortgage was executed the horses dejudgment finding that the fraudulent trans scribed therein were in Kiowa county, and action complained of was entered into and were hitched just a short distance from the consummated to his detriment. The evidence bank; that he saw the horses, and that the offered in this case manifestly falls far short horses in controversy were the horses mortof establishing such facts. The presumption gaged to the bank. The defendant claims indulged in by counsel for plaintiff in error, under a purchase from the mortgagor, G. J. that, because defendant Davis Guion paid Dahlke. The horses at the time the defendover the money which satisfied the price of ant purchased them were located in Garfield the lots and material and labor in construct. county, and neither the original mortgage or ing the house, there is a conclusive presump a copy thereof was filed in that county; but tion that he was using his own money and it is not contended that it should have been putting the title in his wife to defraud his if the property was in Kiowa county at the creditors, cannot be entertained. The only time the mortgage was given. He paid evidence in the case touching the question Dahlke $190 for the horses, and without any as to whose money paid for this property knowledge of plaintiff's mortgage. The deshows that it was the money of Fannie fense interposed was that the horses in conGuion. The record is silent as to when, or troversy are not the same horses included how, or where she got it, and, in the all in the mortgage. This presents an issue of sence of proof, the presumption is she came fact. Against the positive evidence of Mr. by it honestly, and wholly disconnected from Hill, the cashier of the plaintiff bank, that the fraudulent transaction here charged. they are the same horses, the defendant ofWe are of the opinion that there was no er fered the testimony of certain witnesses who

testified that the horses were older than the amination of the entire evidence, it appears ages stated in the mortgage.

that the verdict is obviously wrong, and The mortgage was executed on the 7th day ought to have been for the other party, this of May, 1903, and the trial in the court below court will not permit itself 10 be bound by occurred on the 8th day of December, 1904, such verdict, especially where the evidence or a year and seven months later. Hence, on the one side is positive and direct, while according to the mortgage, the horses were, that on the other side is not only opinion eviat the time of the trial, eight years and seven dence, but shows from the admissions of the months old. Dahlke and his family lived in witnesses themselves that it is uncertain and Garfield county, but he left there in the unreliable as to the correctness of the opinspring of 1902 and went to Kiowa county, ions given. where he was staying at the time the mort As to the horse that was unbranded, the evigage was executed by him, returning to Gar dence may be sufficient to sustain the verdict; field county about harvest time of the same the same cannot be said as to the other horse. year.

One witness places it at 8 years old the folThe witnesses for the defendant testified, lowing spring; another at nine the following in substance, as follows: G. S. Fowler stated spring, and two place its age at 9. This that he was a neighbor of Dahlke, and that horse also had the brand “C” on his left jaw. he could not say for certain whether or not The testimony of these witnesses also clearly he ever saw the team in question until after show that they cannot tell to a certainty Dahlke returned from Kiowa county. M. M. within one or two years of a horse's age. Galloway testified that he had been in the The only other discrepancy between the dehorse and mule business at Enid for about scription in the mortgage and the horse is, seven years; that he had done hardly any the mortgage recites that the horse, at the thing for the last 25 years except examine time the mortgage was given, weighed 1,100 horses and mules; that he had examined the pounds, while there was some opinion evihorses in question two or three days prior to dence tending to show that the horse at the trial; that one would be 8 years old in the time of the trial, which was a year and the spring following, and that the other one seven months later, weighed 1,200 pounds. was about 11 or 12 years old; but that one Even if this were true, that would not excuse cannot tell the exact age of a horse after it the defendant from investigating. We know gets a "smooth mouth” which occurs at about from common knowledge that a horse of that 9 years old, except in cases where the horses size, during a period of 19 months might vary are raised on a range, in which event the 100 in weight, and the record of Kiowa counmouth gets smooth younger. Mathew Sher ty was constructive notice to all. This is a man testified that he was a farmer, that he case where each of the parties evidently acthad examined the horses, and that they were ed in good faith, and loss must fall upon about 9 and 10 years old, respectively; that

The evidence did not reasonably tend the younger horse was branded "C" on the

to support the verdict as to the horse that left jaw; that the younger horse would be was branded, and therefore the judgment of 9 the following spring, but that he would not the lower court is hereby reversed, at the be willing to say that he could tell positively cost of the appellee, and a new trial granted. as to a horse's age within a year. A. B. Wols The case is remanded, with direction to worth testified that he had handled horses on

proceed in conformity herewith. All of the the farm all his life; that he had examined Justices concurring, except GARBER, J., who the horses in question; that one of the was a witness in the court below, not sitting. horses, in his opinion, was about 11 or 12 years old, and the other one about 9; that a horse usually gets a smooth mouth about 9,

(17 Okl. 177) but as the younger horse's mouth was not

MARTIN et al. v. GASSERT. entirely smooth, it might be 8; that after a horse gets a smooth mouth one must rely (Supreme Court of Oklahoma. Sept. 5, 1906.) largely upon the general appearance of the 1. APPEAL – REVIEW - QUESTIONS OF FACT horse in determining his age. Charles Crane SUFFICIENCY OF EVIDENCE. testified that he had handled horses all of

Where a case is brought to this court for

review, and it is sought to reverse the judgment his life; that he had seen the horses in con

of the district court on a question of fact, and troversy, and that he thought the one horse on the grounds that the evidence in the court was about 9 years old, and the other one

below did not reasonably tend to support the

that a horse's two or three years older; that a

judgment of the court, the case-made must con

tain the positive averment, by way of recital, mouth becomes smooth at about 12 or 14, that it contains all the evidence submitted or after which time there is no certainty as to introduced on the trial of the case, and such a horse's age, and even before that one may

recital cannot be supplicd by the certificate of

counsel, or of the stenographer, or the certifimiss the age a year or two. Is this evidence

cate of the trial judge, and, where such casesufficient to defeat a recovery by the mort made does not contain such recital in positive gagee? We think not. And while it is a gen terms, this court will not review any question

depending entirely upon the facts for its deeral rule of this court that a verdict will not

termination. be set aside if there is any evidence reason

[Ed. Note.-For cases in point, see Cent. Dig. ably tending to support it, still, if from an ex vol. 3, Appeal and Error, $3 2916, 2917.]

one.

2. SAME-ASSIGXMENTS OF ERROR.

taining said demurrer of the plaintiff to the Where the appellant fails to assign as error evidence of the defendants below, plaintiffs the overruling of the motion for a new trial in the petition in error, no question is properly

in error here, to which the plaintiffs in error presented to this court to review error alleged excepted. (3) For the reason that the decision to have occurred during the progress of the of the court is contrary to the evidence. trial in the court below.

(4) For the reason that the decision of the [Ed. Note.--For cases in point, see Cent. Dig.

court is contrary to the law. (5) For errors vol. 3, Appeal and Error, $ 2979.)

of law occuring at the trial, and duly excep(Syllabus by the Court.)

ted to at the time. (6) That the court comError from District Court, Noble County; mitted error in withdrawing said cause from before Justice Bayard T. Hainer.

the consideration of the jury, to which plainAction by Charles Gassert against C. W.

tiffs in error at the time duly excepted. Martin and Ida F. Martin. Judgment for The questions presented on appeal to this plaintiff, and defendants bring error. Af

court involve a consideration of all the evifirmed.

dence; the questions being as to the right

fulness of the judgment of the trial court in This was an action brought by the defend

sustaining the demurrer to the evidence of ant in error on three promissory notes and

the plaintiffs in error and in rendering judgfor the foreclosure of a real estate mort

ment against them. These assignments of gage. Said notes being given as a part con

error, we think, cannot be considered by this sideration for the purchase of a stock of

court, for the reason that the questions pre merchandise located in the town of Morrison,

sented on this appeal involve a consideration Noble county, Okl. The defendants in the

of all the evidence, and there is nowhere in court below claim that the plaintiff in that

the case-made the recital that it contains all court, at the time of said transaction, repre

the evidence introduced on the trial of the sented to them that the said goods were

case. At page 156 of the case-made there is niarked at the wholesale cost price, and were

found a certificate of the stenographer which of the reasonable value of $1,736. It is also

states this fact. At page 169 is found a simclaimed that said misrepresentations were

ilar certificate made by the attorneys for the false as to the marking of said goods, and as

paintiff in error, and at page 172 the stateto the value thereof, and were known to be

ment is included in the certificate of the trial false by the plaintiff at the time the same

judge that the record contains all the eviwere made, and the defendants set up as a

dence in the case. But the repeated holdings defense fraud and misrepresentation. It is

of the Kansas Supreme Court, both before also alleged that defendants, on discovering

and after our adoption of their statute, are said fra ud, offered to return to said plain

to the effect that such certificates are not tiff said goods, and demanded a return of the

sufficient, and that such statements must be consideration. All of which the plaintiff in

in the nature of a positive recital in the casethe court below refused. On the trial of the

made itself, and that this defect cannot be cause in the court below, the defendants admitted the execution of the notes, but plead

supplied by any certificate, either of the

attorneys, the stenographer, or the trial judge. ed in defense fraud and deceit and want of

In the case of Bartlett v. Feeney, 11 Kan. consideration. The court held the burden of

594, 602, cited by Judge Valentine in the proof was on the defendants to establish their proof as set forth in their answer as a de

case of Eddy v. Weaver (Kan. Sup.) 15 Pac.

492-496, it was held that under the circumfense to the notes in question. Thereupon

stances of that case the statement of a fact, the plaintiffs in error introduced their evi

which was not inserted in the case-made nor dence to prove the allegations of said an

entered in the proceedings of the court, but swer, to which said evidence the defendant

which was merely certified to by the judge, ir error at the close thereof interposed a de

at the time of settling and signing the case, murrer, the cause having been tried to the

would not be considered by the Supreme jury, which demurrer was by the court sus

Court. In the case of Hill V. First Nat. tained. The jury was discharged, and judgment rendered against the plaintiffs in error.

Pank, 22 Pac. 324, the Supreme Court of Motion for a new trial was filed in due time,

Kansas says: "In order to have the question

of whether the evidence supports the findoverruled, and exceptions saved, and the case is brought here for review.

ing and judgment examined, the case-made

should show that it contains all the evidence. Doyle & Cress, for plaintiffs in error. A statement to that effect in the certificate Wrightsman & Diggs, for defendant in error. of the district judge settling the case is in

sufficient." In the case of Ryan v. Madden IRWIN, J. (after stating the facts). The et al., reported in 26 Pac., at page 680, the counsel for plaintiffs in error in their assign Supreme Court of Kansas say, in the body of inents of error urge for a reversal of this the opinion: “We also find there is considercase: (1) The district court committed er able testimony in the record which follows ror of law in the trial of the case by exclud the certificate of the stenographer. A stateing competent testimony which was offered ment is included in the certificate of the by plaintiffs in error, rejected, and exceptions judge who settled the case to the effect that reserved. (2) Error of the court in sus the case contains all the evidence that was

[ocr errors]

introduced on the trial; but such statement in the case of Eddy v. Weaver (Kan. Sup.) was improperly included in the certificate, 13 Pac. 492-197, it is said: "Where a case, and is ineffectual to accomplish the purposes when it is served upon the adverse party, intended"-citing Eddy v. Weaver, 37 Kan. does not purport to contain all the evidence, .540, 13 Pac. 492; Hill v. Bank, 12 Kan. 364, he has no further interest in the matter than 22 Pac. 324. Continuing, the court in the to know that what the case does contain is pinion says: "The first recital in the case correct. Usually, in such cases, it is a matter made, to the effect that the case includes the of entire indifference to him as to how much evidence offered by each party before they or how little of the evidence is contained in lested, necessarily excludes that which was the case; and, if what is contained in the afterwards introduced. This was evidently case is correct, he has no need to suggest deemed to be insufficient by the plaintiff in any amendments to the case with regard to error, as he attempted to supplement it by the evidence, although the case may not the certificate of the official stenographer, contain one-half, or, indeed, any, of the eviand later by another certificate of the judge. dience. Usually, when a party making a case We conclude that the record fails to properly for the Supreme Court desires that it shall show that all the evidence is preserved, and be shown that the case contains all the evihence, under the authorities cited, we cannot dence, the case itself, as served upon the adsay that the verdict is without support." verse party should contain a statement to

We have carefully examine this case that effect, so as to give the adverse party made, and we find, except as contained in an opportunity to suggest amendments, if he the certificate of the attorneys, the stenog thinks the statement untrue, either by strikrapher, and the trial judge, that it contains ing out the statement, or by inserting such no statement to the effect that it contains all other evidence as he may believe has been the evidence introduced on the trial. Now, omitted, and thereby make the case speak the We take it that the reason that the certifi truth. It is the case itself, and not the cer(ate of the trial judge is not sufficient to tificate of the judge, which would show (ure this defect is based upon the fact whether all the evidence introduced on the that it is no part of the duty of the trial trial is contained in the case or not. All judge to supply any of the facts contained in that the judge, in settling a case for the the recitals necessary in the case-made. Ilis Supreme Court, can properly do in the abonly duty is to see that the facts stated and sence of the parties, and all that he need the recitals made in the case-made are correct. do in any case, is to examine both the case His only duty is to certify that the matters as it has been made and served, and the and things alleged in the case-made are amendments thereto as suggested by the adcorrectly stated. It is no part of his duty verse party, and then to allow all of each, so to go beyond this certificate and insert state far as the same are correct, and so far as the ments of facts not contained in the case-made amendments have relation to the case as at the time the same is presented and served made and served, and also to correct any upon the opposite counsel. Now, when a erroneous statements made in either the case case-made is served upon opposing counsel ci the amendments, so that the case, when and examined by them, it is a matter en settled, shall speak the truth. And, when tirely immaterial to them whether it con the case is thus settled, all that the judge tains all or only a part of the evidence. They need further to do is to indicate the same in might accept service of it, knowing that it some manner upon the case and sign his did not contain the allegation that all the name thereto. Nothing else is necessary to evidence taken at the trial was included be done." therein, and when the same has been pre Now in this case, we think it cannot be consented to the opposing counsel, and served tended that, at the time of the inserting of upon them, then the only purpose in present this statement in the certificate of the trial ing it to the court is that he may certify that judge attached to the case-made, all the parthe things therein contained are correctly ties were actually or constructively present stated, and it is no part of his duty to insert when the case-made was signed, and that in that certificate that it does, or does not, such statement in the certificate would be contain all the evidence taken at the trial, binding upon them for that reason. By referunless the case-made, as prepared and served ring to the dates contained in this case-made, upon the opposite counsel, contains that it will be found that the time for serving statement.

the case-made expired in October, 1905; that Such seems to be the conclusion reached the case-made was served on the 19th day of by the Kansas Supreme Court in the case August, 1905, but that it was not signed by of Brown v. Johnson, 14 Kan. 377, where the the judge, or his certificate attached thereto, court says: "The signature of a judge to a until the 5th day of February, 1906. So it Case-made or bill of exceptions, imports the would not be presumed, after this lapse of truthfulness of the preceding statements in time, that counsel were present at the time suroh (ase or bill--nothing more; and we of the signing and attaching of this certifimust look to those statements to see whether cate. And in the case of Dodd v. Abram, ell the testimony is preserved or not." And 27 Kan. 09, the Supreme Court of Kansas

« PreviousContinue »