sulted in a verdict for the plaintiff in the and upon the return to the courtroom a consum of $12,000. ference was held with the court, after which the court made the order: "This case will be continued until to-morrow morning at 9 o'clock for the only and express purpose of you getting you another attorney, and you can depend upon the other attorney to conduct your case; you will have to get you an attorney now, Mr. McAllister, and get him this record that the reporter has so he can' take charge of your case to-morrow morning at 9 o'clock," after which he excused the jury until the next morning at 9 o'clock with the statutory admonition, and with the further direction: "You should come back here to-morrow morning, gentlemen, without any impression on your mind, except such as made by the testimony in this case, so that you can give all parties a fair and impartial trial, and when you have done all that you can do and all that we have done that, gentlemen of the jury, you want you to do, and I'm sure that is what you want to do." A motion for new trial was presented, heard, and overruled; exceptions reserved and judgment pronounced upon the verdict of the jury in favor of the plaintiff and against the defendant in the sum of $12,000 and for costs, from which judgment of the court the defendant appeals. Attorneys for defendant set up 19 assign-ready, and you will have to acquaint him with ments of error, but argue them under the propositions: First, that the court erred in not continuing the case and withdrawing the jury because of the fact that the attorney for defendant became too intoxicated in open court to properly continue the hearing of evidence and on account of the effect that such intoxication had upon the jury and in refusing to give new counsel for defendant time to prepare for trial; second, that there was no allegation in the petition or evidence of actual fraud, nor was there any evidence of confidential relations or constructive fraud; third, that the evidence showed that there was no agreement entered into between the parties to marry before all transactions in this action between them had been concluded, yet the court permitted testimony as to the engagement and arrangement for the wedding by the plaintiff and admitted letters, written by the defendant to the plaintiff, long after the exchange of properties took place, to the prejudice of the defendant; fourth, that the court refused to admit the petition for divorce, offered by defendant in evidence, showing that she had charged him with being guilty of cruel and inhuman treatment, had choked her and threatened to kill her, which was offered for the purpose of controverting the evidence of special trust and confidence, love, and affection; fifth, the refusal of the court to give certain instructions; sixth, that the court erred in the giving of certain instructions to the jury; and, seventh, that the court erred in refusing to permit the defendant to prove by oral testimony the amount of indebtedness against the ranch property. On the first proposition presented by attorneys for defendant, in their brief, that the court erred in not withdrawing the case from the jury and continuing the case over on account of the attorney for defendant becoming intoxicated during the taking of testimony upon the motion of defendant, presented by attorneys, the facts seem to disclose that the jury had been impaneled and the cause had proceeded to trial, and the opening statement of counsel had been made, and several witnesses had been examined, and shortly after court convened after the noon recess attorney for defendant appeared to be in an intoxicated condition and not able to proceed with the case and started to leave the courtroom with the remark, "Just go ahead and examine the witness." The court ordered the bailiff to call the attorney and defendant, At the convening of court at 9 o'clock a. m., March 1, 1921, Mr. Biddison, who had been employed by the defendant, appeared together with the other counsel, who had conducted the case thus far, and who had "sobered up," whereupon a motion was filed by Mr. Biddison for a venire de novo, with or without a continuance, and assigned as a reason that the former counsel, who had defended the action from the commencement, in the preparation of the pleadings and in the trial of the case thus far, had appeared in the courtroom in an intoxicated condition, and that because of such condition he was unable to proceed intelligently with the trial of the cause, and that said condition of counsel was entirely without the procurement, knowledge, or consent of the defendant in the case, which statement of the counsel was ordered stricken from the record, and after some colloquy between the court and counsel, Mr. Biddison proceeded to make further statement that defendant was required by the court to employ counsel to proceed with the cause, and that he did employ other counsel, who was wholly unfamiliar with the pleadings or with the evidence introduced in the cause or yet to be introduced, and that counsel so employed had been wholly unable to familiarize himself with the proceedings in the cause thus far and was unable to properly proceed with the case; that the defendant was in no wise at fault with the condition of his counsel on the day before, and the court then made the statement in the record that Mr. Biddison came to the court's chambers between 2 and 3 o'clock in the afternoon and obtained the files from the reporter in the case, came back and left the files in the chambers, stating he was going to make the motion above set forth, without having further investigated the case or asked the re (225 P.) of the plaintiff and her counsel to not take advantage of the defendant in any way on account of this unfortunate occurrence, and the fact that the trial judge suggested to defendant to get other counsel was a further ing protected in so far as it was possible for the court to do so under the circumstances; to hold otherwise, the due and orderly proceedings of the courts of this country could be interrupted at any time by litigants employing counsel, who are addicted to the use of strong drinks, becoming intoxicated and thus interrupting and delaying proceedings of trials before the courts of this country. porter to go over the proceedings thus far, ter and showed a liberal disposition on part with him; that at the time proceedings were stopped the then counsel for defendant had been in the courtroom, seemed to be able to examine the witnesses, so far as the court was able to observe, did not claim to be intoxicated, came to the court during the after-evidence that the defendant's rights were benoon, soon after lunch, and asked the court to continue the case, and the court asked him if he were sober, and he said he was, and he and his client both asked the court to continue the case until this morning at 9 o'clock, so that they could proceed with their case, and the court, upon their motion, continued it until 9 o'clock, but advised the defendant to procure additional counsel, but did not say that his then counsel should not appear in the case and overruled the motion for defendant. Certain evidence was taken in support of the motion of defendant, from which it clearly appears that the counsel was under the influence of an intoxicant, and counsel for plaintiff, on his own motion, suggested that the case be continued until the next morning. The evidence further shows that defendant immediately went to Mr. Biddison, who had been his attorney in the divorce proceeding, between the plaintiff and defendant, and must have been, in some measure, familiar with the case, as this proceeding grows out of the division of property, made at the time the divorce proceeding was settled. Mr. Butterworth, the former counsel, was in the courtroom and testified that he was feeling fairly well and that he was physically fit to proceed with the trial of the case, but would rather Judge Biddison would handle it and that he thought that he and Judge Biddison could possibly proceed with the trial of the case. All of the above proceeding, on the motion to withdraw the jury, took place in the absence of the jury, and upon the conclusion the jury was returned into court and the trial proceeded with both Mr. Butterworth, former counsel, and Mr. Biddison, the new counsel employed by defendant, present, and the defense was ably conducted and the rights of the defendant fully protected in so far as the conduct of the case by counsel is concerned. Counsel for defendant cite numerous authorities from other states in support of this assignment of error, but it is our opinion that this matter was entirely within the sound discretion of the trial court, as it was in no way the fault of the plaintiff that the defendant found himself in court with counsel in an intoxicated condition, and the court, at the request of defendant and his counsel and also upon request of counsel for plaintiff, continued the cause from about 2 o'clock in the afternoon until 9 o'clock a. m. of the following day to give the defendant an opportunity to employ other counsel and to give an opportunity for his present counsel to “sober up,” which, in our opinion, protected all the rights of the defendant in the mat The record does not disclose that there was anything that took place in connection with this unfortunate occurrence in presence of the jury that, in our opinion, could be construed as prejudicing the rights of the defendant; to hold otherwise would be a reflection upon the intelligence and honesty of the trial jury. And the further fact that Mr. Biddison, who was employed by defendant, was counsel for the defendant in the divorce proceeding, out of which this proceeding originated over the division of property, and the able manner in which he conducted the case shows conclusively that he had sufficient grasp of the facts and legal principles involved to protect the rights of the defendant in the cause. The only case from this court, cited by counsel for defendant, is the case of Wood v. Jones, 60 Okl. 111, 159 Pac. 325, which was a case where one of the parties to the action was unavoidably absent from the trial of the cause, and the court in that case held that a continuance should have been allowed for the reason that the defendant, himself, should have been given a reasonable opportunity to be present at the trial to advise with and assist his attorneys in the presentation of the case, which presents an entirely different state of facts to the one presented here. [1] This court, in the case of Pierce v. Engelkemeier, 10 Okl. 308, 61 Pac. 1047, denied the right of a continuance, on the grounds of sickness and absence of one of the attorneys in the cause, and held: "The sickness of an attorney is not one of the statutory grounds entitling the party to a continuance. It is discretionary with the court to grant or refuse it." Okl. 24, 154 Pac. 1139, this court held: [2] In the case of Jones v. Thompson, 55 "The granting or refusing of a continuance on account of the absence of counsel is a matter of discretion with the trial court, and, unless it appears that such discretion was abused to the prejudice of the substantial rights of a litigant, the action of such court will not be disturbed upon appeal." To like effect is the case of Pool et al. v. Riegal et al., 46 Okl. 5, 147 Pac. 1193, and it is our opinion, upon the state of the record | going upon the ranch property, personally, in this case, that the court did not err in overruling the motion of defendant, but that it was within the sound discretion of the court and this discretion was not abused. taking with her her son and neighbor, with whom she was residing, who assisted her in the examination of this property and in ascertaining the worth and probable value thereof, and before and at the time of the exchange she consulted her attorney, so she was fully informed of the value of the two properties and had advice upon that subject from the parties above mentioned, and upon an investigation of the entire testimony in this case we cannot find that there was any fraud, alleged or proven, that would entitle the court and jury to set aside an agreement of exchange of properties in controversy in this proceeding. The evidence further show Under the second proposition, argued by counsel for defendant, there are grouped eleven assignments of error, which, in our view of the case, is decisive of most of the questions raised upon this appeal. It will be observed that the petition in the case alleges that the exchange of properties was brought about and her consent to such exchange was obtained because of her confidence in the defendant and because of a marriage agreement, and in fact the plaintiff alleges that there was an agreement to re-ed that the plaintiff and defendant had not marry entered into between the 14th and the 30th days of August, 1918, and that there after the defendant set about securing this exchange of properties. Her testimony upon this proposition was that the exchange of properties was made before any agreement was entered into between them to remarry, and this evidence is conclusive, in which she Then, from the above evidence it cannot be seriously contended that the exchange of properties was based upon a mutual agreement to remarry, as the plaintiff failed to prove the allegations of her petition of this fact, but, on the contrary, by her own testimony proved that the opposite fact existed and that there was no agreement between the parties at that time to remarry. [3] Upon the further proposition, contended for by plaintiff, that the plaintiff, because of the long marriage relation and her implicit confidence in the defendant, that she was induced to make the transfer, the facts clearly show that plaintiff and defendant had been married before, each having reared families, and that they came together and entered into the marriage relation late in life, and that they lived together for the period of about 16 years; that their married life had not been pleasant, and that she secured a divorce from the defendant but a short time before this transaction; that each of them was of full age, mentally capable of contracting, and that before this exchange of properties the plaintiff informed herself by lived together from December, 1917, and it was shown, or attempted to be shown, by the defendant, that the plaintiff had filed a divorce proceeding and secured her divorce, in which she charged him with having been guilty of serious acts of cruelty and mistreatment toward her, that he had cheated and defrauded her out of her property and had been guilty of violating the sacredness of the marriage relation, and while it is true that the court refused to permit the defendant to introduce the sworn petition of plaintiff, containing these charges, which, in our opinion, was error, it is very clear that, under the circumstances surrounding this case, the plaintiff could not have reposed that degree of confidence, and the relation of husband and wife having been theretofore dissolved by decree of divorce, and no agreement having been entered into at the time of the transaction for a remarriage, that no such confidential relation existed between the plaintiff and defendant, such as would entitle the court and jury to find that she had been overreached in this transaction on this account. The record in this case shows conclusively that plaintiff relied for the most part upon the agreement to remarry for her recovery in this case. It seems that that was the theory upon which the petition was drawn and upon which the case was tried and upon which the case was submitted to the jury by the court, as appears from his instructions. There was no actual fraud or misrepresentation of facts. alleged or proven, which the defendant knew to be false and upon which the plaintiff believed to be true and relied upon. All the decisions of this court hold that, when fraud is the basis of recovery, it must be specifically alleged and proven by the testimony. [4] It will be sufficient to refer to the case of C., R. I. & P. Ry. Co. v. Penix, 61 Okł. 4, 159 Pac. 1141, which gives the general rule as follows: "Fraud is a fact to be established by evithat before fraud can be estalbished it must be dence, as any other fact. The general rule is shown that a material representation has been made; that it was false; that when it was made the speaker knew it was untrue, or that (225 P.) it was made recklessly, without the knowledge | husband as to his property interests the tesof its truth and as a positive assertion; that timony in this case does not warrant any it was made with the intention that it should such instruction and we think it was reversibe acted upon by the one to whom it was ble error for the court to give such an inmade; that it was so acted upon by reason of struction. the reliance placed upon it; and that damage or injury resulted thereby.' Based upon the testimony and the record, we are of the opinion that there was no evidence of actual fraud, nor was there evidence of such confidental relations existing between the parties that amounted to constructive fraud. [5] On the third proposition, raised by counsel for defendant, in their brief, having found that there was no agreement entered into between the parties, as alleged in the petition to remarry, before all the transactions between them had been concluded, we are of the opinion that the court erred in permitting testimony as to the engagement and arrangement for the wedding by the plaintiff and the admission of the letters, written by the defendant to the plaintiff, long after the exchange of properties took place, over the objection of the defendant, was error and was prejudicial to the rights of the defendant in this action. [6] In the case of Chickasaw Compress Co. v. Bow, 47 Okl. 576, 149 Pac. 1166, it is said: tions that are fairly correct in all material "It is the duty of the court to give instrucparts, and to state correctly the law as applicable to the case on trial, and not to state abstract principles." [7] In the case of White v. Oliver, 32 Okl. 479, 122 Pac. 156, it is held: "It is error to give an instruction, presenting to the jury a theory of the case, when there is no evidence to support the theory." The attorneys for defendant complain about instruction No. 4, in that the court told the jury that it was claimed by the plaintiff that after such division of their property rights had been obtained by plaintiff that she was induced by the defendant to exchange the ranch property, which she owned in the division between them, for the city property in Tulsa, which he owned as a result of such division; that such exchange was finally made by her on account of trust and confidence in and love and affection for defendant and his promise of remarriage to her; and, that if the jury found such exchange were made, under such conditions, such contract was a contract of persons occupying confidential relations. The record shows that there was no mutual promise to remarry at the time of the exchange, and upon the proposition of confidence, love, and affection, in our view of the case, there could not have been much of this after the procuring of the divorce at such a recent date. If such instruction given by the court in this case should be a proper one, then the stronger reason why the court should have admitted the petition of the plaintiff in the divorce proceeding that was offered by the defendant and refused by the court is that this instruc tion of the court, in the absence of this testimony, was prejudicial to the rights of the defendant upon the evidence admitted and the evidence offered by the defendant and refused by the court. Upon the fourth proposition that the court refused to admit the sworn petition of plaintiff, offered by defendant in evidence, showing that she had charged him with being guilty of cruel and inhuman treatment and had choked her and threatened to kill her, and had cheated and defrauded her out of her property in light of the testimony that had already been admitted by the court as to the confidential relations and as to the trust reposed in defendant by plaintiff for the purpose of controverting the evidence of special trust and confidence, love, and affection, admitted on behalf of the plaintif, we are of the opinion this was reversible error and deprived the defendant of a substantial right to have all the facts and circumstances surrounding the relations of the parties to go to the jury. It cannot be seriously contended that the agreement to remarry, and that the buying of the trousseau, or that the contents of the letters, influenced the plaintiff in the slightest degree in making the exchange of the properties at a prior date, and, upon examination of the instructions by the court, we find that the instructions complained of are based upon the agreement and confidential relations, existing between the husband and wife, and in one of the instructions we find that the court instructed the jury and gave in charge to the jury a specific instruction, concerning agreements, executed directly by the husband and wife, and upon the question of intentional concealment, or misrepresentation, on part of the betrothed trial. There are other assignments of error urged by attorneys for defendant; but, under the views of the court, as heretofore expressed in this opinion, the errors heretofore considered are sufficient for a reversal of the judgment of the trial court, and it is unnecessary to consider the other assignments of error in this cause, and it is sufficient to say that for the errors occurring at the trial, heretofore considered, it is our opinion that the judgment of the trial court should be and is hereby reversed and remanded for a new (Syllabus by the Court.) 1. Abatement and revival 5-Proceeding to set aside a judgment for fraud held a "civil action" within statutory ground for demurrer, as another action pending; "special proceeding." Proceedings by petition under section 810, Compiled Oklahoma Statutes 1921, to set aside a judgment for fraud practiced by the successful party in obtaining such judgment, constitutes a "civil action" and not a mere "special proceeding," and, when otherwise applicable and sufficient, it comes within the third ground of demurrer set out in section 268, Compiled Oklahoma Statutes 1921, as another action pending. [Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Civil Action-Case-Suit, etc.; Special Proceeding.] 2. Abatement and revival 17-Objection that another action pending waived unless demurred to on specific statutory ground. While the pendency of another action between the same parties for the same cause when same so appears upon the face of the petition constitutes a ground for demurrer, the defect is waived unless a demurrer is filed on that ground. 3. Pleading 216(3)-Allegations of petition not looked to on demurrer unless sufficient ground stated; another special proceeding pending not ground of demurrer. In the consideration of a demurrer to a petition, the court will not look to the allegations of the petition unless a lawful ground of demurrer is stated in the demurrer itself. Where the demurrer is based on the allegations that "there is another special proceeding pending in the court for the purpose of vacating the judgment which is sought to be vacated in this action," the demurrer is insufficient in that respect because the pendency of a special proceeding is not a ground of demurrer. Such demurrer must be overruled, even though the allegations of the petition itself show that the other proceeding so pending really constitutes a civil action. tent person, bringing such suit in his own name Error from District Court, Ottawa County; S. C. Fullerton, Judge. Suit by Abram Dardenne, Jr., an incompetent, by Royal L: Mann, his guardian, against J. A. Daniels and others. From a judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed. E. B. Morgan, of Galena, Kan., and E. C. Fitzgerald and Geo. T. Webster, both of Frank Nesbitt, J. G. Austin, and Ray Mc- error. From LYDICK, J. On February 16, 1923, Abram Dardenne, Jr., an incompetent person acting by and through Royal L. Mann, his guardian, filed this suit in the district court of Ottawa county against J. A. Daniels, Scott A. Yeargain, J. S. Cheyne, Paul Damon Dardenne, a minor, and the Ottawa National Bank, a corporation, as defendants. It is to be observed the ward himself is the plaintiff, and it is so clearly alleged therein, although he proceeds by acting through his guardian. In said suit he sought to cancel a deed of record executed and delivered by him as grantor conveying certain described lands in said county unto one of the defendants and upon which rested all the title and interest of all the defendants. The defendants filed The plaintiff a demurrer to said petition, which demurrer was by the court sustained. excepted and brings the case here on appeal by petition in error with transcript of the record attached, complaining that the court erred in sustaining said demurrer. the allegations of the petition filed on February 16, 1923, the following material facts appear, to wit, that on a certain date not herein disclosed, but which was prior to March 6, 1921, Abram Dardenne, Jr., plaintiff herein then being an adult and not then 4. Judgment 460 (1)-Demurrer to petition under an adjudged disability as an incomin equity sustained where plaintiff has remedy petent person, filed his suit in the district at law; rule applicable to suit by incompetent. court of Ottawa county, naming therein as Where the plaintiff brings an independent defendants those who are made defendants suit in equity to set aside a judgment on the here. In this action, he sought to cancel the ground that it was obtained by fraud practiced same deed to the same land and to obtain by the successful party, and it appears that the same relief against the same parties the remedy provided by section 809, Compiled which the plaintiff in this second case now Oklahoma Statutes 1921, and the statutes in before the court endeavors to obtain. It is support thereof would afford the plaintiff full, further alleged in the petition filed in the speedy, complete, and adequate relief, and there second suit, which is the case at bar, that on March 26, 1921, and in the first suit so are no allegations in the petition showing that such remedy is then unavailable, the court rightfully sustained a demurrer to said petition filed, the defendants therein obtained a judgbased on the insufficiency of the petition. This ment in said first suit, denying to said rule is applicable to a case where the plaintiff Abram Dardenne, Jr., any relief whatsoever in the independent suit in equity is an incompe- and quieting the title to the land involved For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |