Okl.) HOLMES v. ELLIS date, executed by S. M. Russell and made | the second mortgage should operate as colpayable to the plaintiff. lateral security to the first mortgage, and Neither the original note nor the mortgage was introduced in evidence, and the contents of these instruments is a matter for conjecture only. The evidence fails to disclose what articles of personal property aside from the two mules in controversy the It is admitted, original mortgage covered. however, as we understand it, that this mort-preme Court to insist as against the intervengage was executed and placed of record. ing claim of the defendant that this provi- All of the circumstances surrounding the There is no dispute from the record before us that on the 12th day of January, 1921, the original mortgage was released of record and another mortgage executed by S. M. Russell to the plaintiff covering, among other articles of property, the two mules in controversy, and which had been included in the original mortgage; that there was due on the original indebtedness on January 12, 1921, the sum of $1,000; and that a new note was drawn for this amount, executed by Russell and delivered to the plaintiff, and that to secure this sum, and the further sum of $855, which the plaintiff advanced Russell to harvest a crop of broom corn, a new mort- ord which in any way tends to conflict with gage was executed, covering, among other this theory, except the conclusion of the things, a crop of broom corn to be produced plaintiff himself, testifying as a witness in on a certain tract of land for the year 1921, his own behalf that the mortgage of Januwhich was not included in the original mort-ary 12, 1921, was intended as a renewal and It is not disputed that this crop of continuation of the lien of the original gage. broom corn was destroyed by fire and the mortgage. proceeds of insurance thereon paid to the plaintiff and applied on the total debt of $1,855, which left a balance due and unpaid of $661.35. There is no evidence in the rec [2] Under the uncontroverted evidence be fore it it seems to us that the jury could the mortgage of January 12, 1921, was a new have arrived at no other conclusion than that The new mortgage, among other things, and independent transaction, was a substi contained this provision: is a re "The first named note for $ It is argued by the plaintiff that by virtue of the provision of the mortgage quoted above the new mortgage executed was necessarily a renewal and continuation of the lien of the original mortgage, and that therefore there was no competent evidence upon which the jury could base a verdict for the defendant. This contention cannot be sustained. tute for the mortgage of January 12, 1920, and by virtue of the release of January 12, 1921, operated to extinguish entirely the first mortgage. The only point on which any conflict in S. R. Reeves bought the mules in controverthe evidence developed was whether or not sy from Russell on October 15, 1920, and kept them in his possession until January Reeves testified that he bought the 17, 1921, when he sold them to the defendant. mules from Russell on October 15, 1920, and kept them in his possession until January 17, 1921, at which time he sold them to the er hand that Russell was in possession of defendant. The plaintiff testified on the oththe mules on January 12, 1921, when the new was executed, and owned the mules on that date. The jury, however, accepted Reeves' testimony as true, and, since there is testimony reasonably tending to sustain the finding of the jury that the mules in controversy were owned by Reeves on the 12th day of January, 1921, when the plaintiff executed his release, such finding will not be disturbed on appeal. [1] By this provision of the second mort-mortgage [4] Plaintiff next complains of the instructions of the court to the jury. In the instructions complained of the court instructed the jury somewhat at length upon the law of novation. We do not deem it neces-livered, for the sum of $395, together with sary to examine these instructions at length interest thereon at the rate of 6 per cent. in the present state of the record. An exam- per annum from the 2d day of February, ination of the record discloses that no'ex- 1923, and for costs, and judgment therefore ceptions were taken to the giving of these will be entered in this court against the instructions, and our court has many times plaintiff and sureties on said appeal bond held that, unless exceptions are saved to the for the return of certain personal property instructions complained of, the court will described in the original petition and, if the not consider an assignment of error based delivery of said property is not made, for on that ground. Carter & Bro. v. Missouri the sum of $395, with interest thereon at Mining & Lumber Co., 6 Okl. 11, 41 Pac. 356; the rate of 6 per cent. per annum from the Kennedy v. Goodman, 39 Okl. 470, 135 Pac. 2d day of February, 1923, and for costs, for 936; Pioneer Telephone & Telegraph Co. v. which execution may issue. Tulsa Vitrified Brick & Tile Co., 60 Okl. 129, 159 Pac. 477. HAMON et al. v. KEYES et al. (No. 11987.) (Supreme Court of Oklahoma. April 15, 1924.) (Syllabus by the Court.) Appeal and error 773(5)-Court not required to search record for theory on which to sustain judgment, in absence of defendant in error's brief. Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and the defendant in error files no answer brief, and no reason is shown why same has not been filed, and no [3, 5] Furthermore, we have already found under the uncontroverted evidence before it that the jury were justified in finding that there had been an abandonment and extinguishment of the mortgage of January 12, 1920, and in these circumstances the instructions of the court complained of dealing as they did with the law governing the extinguishment of contracts, was more favorable to the plaintiff than to the defendant, and therefore such instructions were harmless, and the plaintiff cannot complain. In other words, having found under the uncontroverted evidence that the trial court would have been justified in telling the jury as a matter of law that there had been an extinguish-order made granting an extension of time ment of the mortgage of January 12, 1920, and that the mortgage of January 12, 1921, was a new and independent transaction, and operated as a substitute for the original mortgage, to reverse the case and remand it for a new trial because of the failure of the trial court to properly instruct the jury as to the law of novation would, in effect, amount to remanding the cause and directing the trial court to instruct the jury to find exactly as they have found, and would serve no purpose whatever. Unless this court finds that the instructions have caused a miscarriage of justice, a reversal will not be ordered. Chicago, R. I. & P. Ry. Co. V. Newburn, 39 Okl. 704, 136 Pac. 174; Empire Gas & Fuel Co. v. Wainscott, 91 Okl. 66, 216 Pac. 141. It follows that the judgment of the trial court should be and is hereby affirmed. On appeal to this court from a judgment of the district court of Garvin county, Okl., supersedeas bond was filed, executed by the plaintiff P. K. Holmes as principal and B. D. Holmes and T. S. Duffy as sureties to stay execution of said judgment; and the defendant has asked this court in his brief to render judgment against the bondsmen of the plaintiff, as well as against the plaintiff. No response has been made to this request. The judgment of the trial court was rendered on the 2d day of February, 1923, for the recovery of certain personal property and, in the event such property could not be de therefor, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained. Where, under the circumstances, the brief of plaintiff in error appears to reasonably sustain the assignments of error, this court may reverse the judgment in accordance with the prayer of the petition in error. Commissioners' Opinion, Division No. 1. Appeal from District Court, Cotton County; Cham Jones, Judge. Action by Jake L. Hamon and others against John C. Keyes and others. Judgment versed, and remanded with directions to for defendants, and plaintiffs appeal. Re grant new trial. H. A. Ledbetter, of Ardmore, and Stevens & Richardson, of Lawton, for plaintiffs in error. Chas. Mitschrich, of Los Angeles, Cal., for defendants in error. LOGSDON, C. In this case the death of Jake L. Hamon, one of the plaintiffs in error, has been suggested in this court, and an order entered reviving the action. This renders it unnecessary to pass upon the preliminary question presented. Upon the merits of the case plaintiffs have filed their brief in this court, but no brief has been filed by the defendants, nor any excuse given for failure so to do. The records of this court do not show any ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) tension of time, granted to the defendants[ Commissioners' Opinion, Division No. 1. for filing brief nor any application therefor. Appeal from District Court, Alfalfa CounIt is a well-established rule of this court ty; J. C. Robberts, Judge. that it is not required to search the record Action by the Mid-West Insurance Comto find some theory upon which the judg-pany of Enid against J. B. Shrader. Judgment of the trial court may be sustained. ment for defendant, and plaintiff appeals. Under the circumstances stated, where the Affirmed. brief filed by the plaintiffs reasonably sustains the assignments of error contained in the petition in error, the judgment will be reversed in accordance with the prayer of the petition in error. Frost v. Haley, 63 Okl. 19, 161 Pac. 1174; Security Insurance Co. v. Droke, 40 Okl. 116, 136 Pac. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okl. 181, 136 Pac. 1073; First Nat. Bank of Sallisaw v. Ballard, 41 Okl. 553, 139 Pac. 293. It is therefore concluded that the judgment of the trial court should be reversed, and the cause remanded to the district court of Cotton county, with directions to grant a new trial in the action. This action arose out of the following transaction: In April, 1919, one Ward C. Osborn was an agent for the plaintiff company and visited the home of the defendant near Helena, in Alfalfa county, Okl., for the purpose of soliciting hail insurance on defendant's wheat crop. Defendant was reluctant to take out hail insurance, and was absolutely determined not to take out such insurance in a mutual company, owing to certain experiences which he claimed others in his neighborhood had previously had with a mutual company. In order to induce defendant to take insurance, said Osborn represented to defendant that the Mid-West Insurance Company was an old line company with its principal office in Oklahoma City and a branch office at Enid. He further represented to the defendant that he might cancel his applica- . MID-WEST INS. CO. OF ENID v. SHRAD- tion if he thereafter decided to do so any ER. (No. 12917.) time prior to May 15, 1919, by notifying the (Supreme Court of Oklahoma. April 15, 1924.) company by registered mail that he desired (Syllabus by the Court.) 1. Appeal and error 931 (6), 1032 (2)-Party complaining of rulings on evidence has burden of proving prejudicial error; court whose findings support judgment and are sustained by competent evidence presumed to have disregarded incompetent evidence. such cancellation. Upon these representations defendant agreed to take out insurance with the plaintiff upon two crops of wheat belonging to him and in one of which his mother also had an interest. In presenting the application to defendant for his signature, the agent, Osborn, so folded the application as to conceal from defendant the heading of the application, which reads as follows: "Mid-West Insurance Company. In a case tried to the court where complaint is made of rulings admitting and excluding evidence, the burden rests upon the party complaining to show prejudicial error in such rulings, and, where the court made oral find- "The above company organized under the muings of fact which are preserved in the case-tual insurance law of the state of Oklahoma." made and such findings authorize and support the judgment rendered and are sustained by competent evidence shown in the record, it will be presumed that the trial court disregarded all incompetent evidence erroneously admitted, if there be any, in reaching its conclusion. 2. Appeal and error 931(1), 1032 (2)-Oral findings preserved in record persuasive that they are authorized by evidence; party complaining of exclusion of evidence must prove findings would have been different if admitted; exclusion of evidence harmless unless it would have had material effect on issue. Oral findings by the trial court, preserved in the record, are strongly persuasive that they are authorized by the evidence, and the burden of showing that such findings would or should have been different if competent evidence erroneously excluded had been considered is upon the party complaining thereof, and, unless the logical effect of such excluded evidence is shown to be material upon the issues involved, its exclusion will be deemed harmless, even though erroneous. Contemporaneous with the signing of said application, defendant executed the two notes sued upon in this action, one being for the sum of $246.40 and the other for $123.20, both being dated April 10, 1919, maturing September 1, 1919. On the same day, or the next thereafter, defendant made certain inquiries and ascertained that the Mid-West Insurance Company was a mutual company and was merely a reorganization of a company known as the Union Mutual of Enid; this being the company with which his neighbors had previously had the unpleasant experiences which defendant mentioned to the agent, Osborn: Thereupon the defendant visited the offices of the company at Enid on April 18th for the purpose of canceling said applications and obtaining his notes, but was advised that the secretary of the company, who handled such matters, was absent. He returned the next day, which was Saturday, and found the secretary and stated to him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes law of novation. We do not deem it neces-livered, for the sum of $395, together with sary to examine these instructions at length interest thereon at the rate of 6 per cent. in the present state of the record. An examination of the record discloses that no exceptions were taken to the giving of these instructions, and our court has many times held that, unless exceptions are saved to the instructions complained of, the court will not consider an assignment of error based on that ground. Carter & Bro. v. Missouri Mining & Lumber Co., 6 Okl. 11, 41 Pac. 356; Kennedy v. Goodman, 39 Okl. 470, 135 Pac. 936; Pioneer Telephone & Telegraph Co. v. Tulsa Vitrified Brick & Tile Co., 60 Okl. 129, 159 Pac. 477. per annum from the 2d day of February, 1923, and for costs, and judgment therefore will be entered in this court against the plaintiff and sureties on said appeal bond for the return of certain personal property described in the original petition and, if the delivery of said property is not made, for the sum of $395, with interest thereon at the rate of 6 per cent. per annum from the 2d day of February, 1923, and for costs, for which execution may issue. HAMON et al. v. KEYES et al. (No. 11987.) (Supreme Court of Oklahoma. April 15, 1924.) (Syllabus by the Court.) Appeal and error 773(5)-Court not required to search record for theory on which to sustain judgment, in absence of defendant in error's brief. Where plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and the defendant in error files no answer brief, and no reason is shown why same has not been filed, and no [3, 5] Furthermore, we have already found under the uncontroverted evidence before it that the jury were justified in finding that there had been an abandonment and extinguishment of the mortgage of January 12, 1920, and in these circumstances the instructions of the court complained of dealing as they did with the law governing the extinguishment of contracts, was more favorable to the plaintiff than to the defendant, and therefore such instructions were harmless, and the plaintiff cannot complain. In other words, having found under the uncontroverted evidence that the trial court would have been justified in telling the jury as a matter of law that there had been an extinguish-order made granting an extension of time ment of the mortgage of January 12, 1920, and that the mortgage of January 12, 1921, was a new and independent transaction, and operated as a substitute for the original mortgage, to reverse the case and remand it for a new trial because of the failure of the trial court to properly instruct the jury as to the law of novation would, in effect, amount to remanding the cause and directing the trial court to instruct the jury to find exactly as they have found, and would serve no purpose whatever. Unless this court finds that the instructions have caused a miscarriage of justice, a reversal will not be ordered. Chicago, R. I. & P. Ry. Co. v. Newburn, 39 Okl. 704, 136 Pac. 174; Em-versed, and remanded with directions to pire Gas & Fuel Co. v. Wainscott, 91 Okl. 66, 216 Pac. 141. It follows that the judgment of the trial court should be and is hereby affirmed. therefor, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained. Where, under the circumstances, the brief of plaintiff in error appears to reasonably sustain the assignments of error, this court may reverse the judgment in accordance with the prayer of the petition in error. Commissioners' Opinion, Division No. 1. Appeal from District Court, Cotton County; Cham Jones, Judge. Action by Jake L. Hamon and others against John C. Keyes and others. Judgment for defendants, and plaintiffs appeal. Re grant new trial. H. A. Ledbetter, of Ardmore, and Stevens & Richardson, of Lawton, for plaintiffs in error. Chas. Mitschrich, of Los Angeles, Cal., for defendants in error. LOGSDON, C. In this case the death of Jake L. Hamon, one of the plaintiffs in error, has been suggested in this court, and an order entered reviving the action. This renders it unnecessary to pass upon the pre On appeal to this court from a judgment of the district court of Garvin county, Okl., supersedeas bond was filed, executed by the plaintiff P. K. Holmes as principal and B. D. Holmes and T. S. Duffy as sureties to stay execution of said judgment; and the defendant has asked this court in his brief to render judgment against the bondsmen of the plaintiff, as well as against the plaintiff.liminary question presented. No response has been made to this request. Upon the merits of the case plaintiffs The judgment of the trial court was rendered on the 2d day of February, 1923, for the recovery of certain personal property and, in the event such property could not be de have filed their brief in this court, but no brief has been filed by the defendants, nor any excuse given for failure so to do. The records of this court do not show any ex For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (225 P.) tension of time granted to the defendants Commissioners' Opinion, Division No. 1. for filing brief nor any application therefor. Appeal from District Court, Alfalfa CounIt is a well-established rule of this court ty; J. C. Robberts, Judge. that it is not required to search the record Action by the Mid-West Insurance Comto find some theory upon which the judg-pany of Enid against J. B. Shrader. Judgment of the trial court may be sustained. ment for defendant, and plaintiff appeals. Under the circumstances stated, where the Affirmed. brief filed by the plaintiffs reasonably sustains the assignments of error contained in the petition in error, the judgment will be reversed in accordance with the prayer of the petition in error. Frost v. Haley, 63 Okl. 19, 161 Pac. 1174; Security Insurance Co. v. Droke, 40 Okl. 116, 136 Pac. 430; J. Rosenbaum Grain Co. v. Higgins, 40 Okl. 181, 136 Pac. 1073; First Nat. Bank of Sallisaw v. Ballard, 41 Okl. 553, 139 Pac. 293. It is therefore concluded that the judgment of the trial court should be reversed, and the cause remanded to the district court of Cotton county, with directions to grant a new trial in the action. This action arose out of the following transaction: In April, 1919, one Ward C. Osborn was an agent for the plaintiff company and visited the home of the defendant near Helena, in Alfalfa county, Okl., for the purpose of soliciting hail insurance on defendant's wheat crop. Defendant was reluctant to take out hail insurance, and was absolute ly determined not to take out such insurance in a mutual company, owing to certain experiences which he claimed others in his neighborhood had previously had with a mutual company. In order to induce defendant to take insurance, said Osborn represented to defendant that the Mid-West Insurance Company was an old line company with its principal office in Oklahoma City and a branch office at Enid. He further represented to the MID-WEST INS. CO. OF ENID v. SHRAD- defendant that he might cancel his applica ER. (No. 12917.) tion if he thereafter decided to do so any time prior to May 15, 1919, by notifying the (Supreme Court of Oklahoma. April 15, 1924.) company by registered mail that he desired (Syllabus by the Court.) 1. Appeal and error 931 (6), 1032 (2)-Party complaining of rulings on evidence has burden of proving prejudicial error; court whose findings support judgment and are sustained by competent evidence presumed to have disregarded incompetent evidence. such cancellation. Upon these representations defendant agreed to take out insurance with the plaintiff upon two crops of wheat belonging to him and in one of which his mother also had an interest. In presenting the application to defendant for his signature, the agent, Osborn, so folded the application as to conceal from defendant the head lows: "Mid-West Insurance Company. "The above company organized under the mutual insurance law of the state of Oklahoma." In a case tried to the court where coming of the application, which reads as folplaint is made of rulings admitting and excluding evidence, the burden rests upon the party complaining to show prejudicial error in such rulings, and, where the court made oral findings of fact which are preserved in the casemade and such findings authorize and support the judgment rendered and are sustained by competent evidence shown in the record, it will be presumed that the trial court disregarded all incompetent evidence erroneously admitted, if there be any, in reaching its conclusion. 2. Appeal and error 931(1), 1032 (2)-Oral findings preserved in record persuasive that they are authorized by evidence; party complaining of exclusion of evidence must prove findings would have been different if admitted; exclusion of evidence harmless unless it would have had material effect on issue. Oral findings by the trial court, preserved in the record, are strongly persuasive that they are authorized by the evidence, and the burden of showing that such findings would or should have been different if competent evidence erroneously excluded had been considered is upon the party complaining thereof, and, unless the logical effect of such excluded evidence is shown to be material upon the issues involved, its exclusion will be deemed harmless, even though erroneous. Contemporaneous with the signing of said application, defendant executed the two notes sued upon in this action, one being for the sum of $246.40 and the other for $123.20, both being dated April 10, 1919, maturing September 1, 1919. On the same day, or the next thereafter, defendant made certain inquiries and ascertained that the Mid-West Insurance Company was a mutual company and was merely a reorganization of a company known as the Union Mutual of Enid; this being the company with which his neighbors had previously had the unpleasant experiences which defendant mentioned to the agent, Osborn. Thereupon the defendant visited the offices of the company at Enid on April 18th for the purpose of canceling said applications and obtaining his notes, but was advised that the secretary of the company, who handled such matters, was absent. He returned the next day, which was Saturday, and found the secretary and stated to him For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |