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PER CURIAM. This was a suit in equity by defendant in error to have a trust declared in certain lots in the city of Guthrie, and to require the plaintiff in error, who held the legal title, to convey to him. A demurrer was filed to the petition, objecting to the jurisdiction of the court, and for reason that the same does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and exceptions saved by the defendant. Issues were closed, a trial had, and finding and judgment for the plaintiff. The complaint and demurrer present the same question that was decided by this court in the case of Twine v. Carey, reported in 37 Pac. 1096, and on the authority of that case the demurrer should have been sustained to the petition. The judgment of the district court is reversed, and cause is remanded to said court, with instructions to sustain the demurrer to the petition and dismiss the suit.

(3 Okl. 610)

TWINE et al. v. KILGORE. (Supreme Court of Oklahoma. Feb. 16, 1895.) Justices OF THE PEACE-PLEADING – REVIEW Ox

APPEAL-New TRIAL. 1. A bill of particulars in a justice's court for work and labor, which states the title of the court and the names of the parties, and alleges that che defendant is indebted to the plaintiff in a sum certain for work and labor performed at the instance and request of defendant, and that the amount is due and unpaid, states a good cause of action. The law does not require that strictness in pleading in justices' courts that prevails in the district courts.

2. It is not the province of an appellate court to take from the jury the right to weigh conflicting evidence and determine controverted questions of fact; and. when there is any evidence reasonably tending to support the verdict, it will be permitted to stand.

3. It is not error to overrule a motion for a new trial based upon the ground of newlydiscovered evidence, when such newly-discovered evidence is merely cumulative.

4. A motion for a new trial on the ground of newly-discovered evidence should show that the applicant used due diligence to procure and present the evidence on the trial, and the facts constituting the diligence must be shown, so that the court may determine whether the diligence used was sufficient.

5. While it is a loose method of pleading, and one not to be commended, to sue parties by the inititals of their Christian names only, yet, if no advantage is taken of it in the court below, the appellate court will not consider such objection on appeal.

(Syllabus by the Court.)

Appeal from district co’irt, Logan county; before Justice Frank Dale.

Action by Alice Kilgore against Twine, Saddler, and Sawner before a justice. Judg. ment for plaintiff. Defendants appeal to the district court, and from an order for plaintiff they again appeal. Affirmed.

Keaton & Cotteral, for appellants. H. R. Thurston, for appellee.

BURFORD, J. This action was originally instituted before a justice of the peace is Logan county by the appellee, Alice Kilgore, to recover of the appellants for work and labor performed as cook and servant in an hotel. Trial was had before the justice, and judgment rendered in favor of the plaintiff, Alice Kilgore. From this judgment the defendants appealed to the district court, where the cause was again tried by a jury, and a verdict rendered in favor of plaintiff in the sum of $15 and $10 additional for her attorney's fees. Motion for a new trial was filed and overruled, and judgment rendered on the verdict. From this judgment the appellants appeal to this court. There are five assignments of error, but all the questions raised are embraced in the second and fifth assignments.

In the second assignment of error it is claimed that the court erred in overruling the appellants' demurrer to the appellee's complaint. As the action was originally instituted before a justice of the peace, the peti. tion (or "bill of particulars," as it is desig. nated in the act regulating the practice in justices' courts) is not required to be as certain, definite, and exact as pleadings in the district court. The complaint contains the title of the cause; states the court in which it was filed; and sets out in ordinarily plain language that the defendants are justly indebted to the plaintiff in a certain sum of money, for labor and work performed by her during a certain specified time, at the special instance and request of the defendants; that the amount is due, and that payment had been refused. This constitutes a good complaint in a justice's court, and there was no error in overruling the demurrer. It is argued by counsel for the appellants that the demurrer should have been sustained, for the reason that the defendants are described in the complaint by the initials of their Christian names only. There is nothing to show that this objection was made in the court below. The supreme court of the Unit. ed States, in Cattle Co. v. Becker, 147 U. S. 47, 13 Sup. Ct. 217, in discussing this same question, said: “Initials are no legal part of a name, the authorities holding the full Christian name to be essential.” After citing a number of authorities in support of this proposition, the court says: “This loose method of pleading is not one to be commended, but, as no advantage was taken of it in the court below, it will not be considered here."

The fifth assignment of error is that the court erred in overruling appellants' motion for a new trial. The first canse assigned for motion for new trial is "that the verdict of the jury is not sustained by sufficient evi. dence." We have examined the evidence in the case, and, while it is contradictory, there is evidence sufficient to support the finding of the jury. It is not the province of an appel. late court to take from the jury the right to pass upon the questions of fact involved in

the case, and, where there is any evidence Mandamus on the relation of C. A. Gal. tending to support the verdict of the jury, a braith, attorney general, plaintiff, against the cause will not be reversed for the reason Chicago, Rock Island & Pacific Railway Comthat the evidence does not sustain the ver- pany, defendant. Dismissed. dict. The second ground for new trial is

Curran & Campfield, Caldwell & Whitting"that the verdict of the jury is contrary to

hill, and T. W. Wampler, for petitioner. M. law," and the third cause, “that the verdict

A. Low, John I. Dille, and Harper S. Cunof the jury is contrary to the instructions of

ningham, for defendant. the court." The record discloses nothing in support of either of these contentions. The fourth cause is based upon the grounds of DALE, C. J. This case, being a proceed. newly-discovered evidence, and is supported ing for mandamus in this court, with the by the affidavits of several witnesses to the history of which we are all somewhat famileffect that they had heard the plaintiff, dur

iar, is now before this court upon the motion ing the time she was in the employ of the of the relator for a commissioner to take tesdefendants, make oral statements to the ef- timony, and upon the objection of the refect that she was working for her board and spondent to the appointment of such commislodging. This was one of the questions in sioner, and the application of the respondent controversy in the trial of the cause, before for a trial by jury. If the question as to the jury, and the facts stated in the affidavits whether or not the parties are entitled to a are merely cumulative. New trials will not jury is settled in the affirmative, it follows be granted to permit the introduction of that this court has not the power to appoint merely cumulative evidence; and evidence of a commissioner to take testimony, over the the same kind, addressed to the same point, objection of the party demanding the right of is cumulative. Hines v. Driver, 100 Ind. 315; trial by jury, and the decision upon the quesLefever v. Johnson, 79 Ind. 554; Harper v. tion of a right to a trial by jury will settle State, 101 Ind. 109; Pennsylvania Co. v. Na- the other proposition involved. In mandations, 111 Ind. 203, 12 N. E. 309. Where ad- mus proceedings it is found by an examinamissions of a party to the same point are

tion of the authorities, and it seems to be given in evidence on the trial, other admis

well settled, that such an action was a comsions of a similar character and to the same mon-law action, and in some states of the point are cumulative. Hines v. Driver, 100

Union, under Codes similar to ours, it is held Ind. 315. An application for a new trial on

that, where an issue of fact is raised on the ground of newly-discovered evidence must the pleadings, either party may have a trial show that the applicant used diligence to by jury. The supreme court of Kansas, so procure and present the evidence upon the fas as we have been able to determine by an trial, and the facts showing due diligence examination of the authorities, has not passmust be shown, so that the court may deter- ed upon this question directly. This writ mine whether the ailigence used was suffi- anciently was a high prerogative writ, but cient. Allen v. Bond, 112 Ind. 523, 14 N. E. in the states of this Union, and under the 492; Hamm v. Romine, 98 Ind. 77. There is

of no showing in the case at bar that the defendants used any diligence whatever to ble extent its ancient characteristics. It is not procure the testimony upon which their now considered, in most of the states of the motion for a new trial is based, nor is there Union, as anything more than a civil action; any allegation to the effect that they had no and in the procedure governing the trial of knowledge of such evidence prior to the trial causes such procedure is assimilated, as nearof said cause. The motion for a new trial ly as possible, to the Codes of the several was properly overruled. We find no error states, and is treated as a civil provision-as in the record, and the judgment of the dis- an ordinary civil action-in most of the trict court is affirmed. All justices concur- states. The only features now possessed by ring, except DALE, C. J., having presided this proceeding in common with those origbelow.

inally possessed are the features which grant to the court the discretionary power of is

suing the alternative or peremptory writ of (2 Okl. 108)

mandamus and bringing the parties into TERRITORY ex rel. GALBRAITH, Attor- court. In the case under consideration, an ney General, v, CHICAGO, R. I. & P. issue of fact has been squarely joined by the RY. CO.

return to the alternative writ. As we view (Supreme Court of Oklahoma. June 29, 1894.) the authorities, such issue of fact can be MANDAMUS-RIGHT TO JUKY TRIAL.

tried by a jury, and, under most of the Codes,

the states which have passed upon this ques1. Where an issue of fact is joined in mandamus, the parties are entitled, as a matter of

tion-in fact, I recall but one now-hold that right, to a trial by jury.

a trial by jury is a matter of right, rather 2. Issues in mandamus being made upon than discretionary upon the part of the court. which the parties have a right to a jury trial,

But this court, in passing upon the question and no means being provided by the legislature by which the supreme court can secure a

presented to it on yesterday, as to whether jury, the cause must come to an end.

or not the court would consider this a case

des States, this action has lost to a considera

which should be governed by the rules of must go out of court, and not have the matpleading as laid down by the Code, held to ter determined. However, the organic act the view that this is such an action as that gives to this courtoriginal jurisdiction in man. where issues were joined in accordance with damus proceedings in such cases as are prothe provisions of the Code relating to the vided by law, and, if the law makes no provitrial of civil actions in the district court; sion by which the action of mandamus may and in that decision this court practically be determined in the usual method provided held that, in mandamus proceedings, as well for such cases,-a case of this character,as in any other proceeding of a civil na- then there is no jurisdiction of mandamus in ture, the rules of practice, as laid down for such cases provided by law, because the law the trial of causes in the district court, should has not provided a means by which that acgovern in this court in such cases. There- tion can be determined. The defendant has a fore we are of the opinion that a trial by jury right, as we have all determined, to make may be had in this cause; that the parties such a response-such returu-as that which are entitled, as a matter of right, to a trias is made; he has a right to make an issue of by jury in mandamus proceedings, where an fact as in all other civil actions. The action issue of fact is joined.

being one at law, and being one that under This leads to the next proposition, as to our Code is termed a "civil action," the same whether or not a trial by jury can be had in as all other civil actions, and the right of the supreme court of this territory. Upon trial by jury being given in such actions, the that question the court has concluded that, defendant also has an absolute right of trial inasmuch as no machinery has been provided by jury, which we cannot deny. for the calling of a jury in the supreme court, We come, then, to one of two propositions, it would be the exercise of doubtful power as to the seemingly harsh method of defor this court to prescribe rules and regula- priving the plaintiff of his right in the tions and a line of procedure for the calling case of proceeding further, or of denying to of a jury in the supreme court and the trial the defendant the right which he absolutely of causes in such court by a jury, and we has of a trial by jury, because there are no have agreed that no juries will be called for means provided by law whereby a jury can the trial of causes in the supreme court. In be provided in this court. The legislature considering this question, we have come to has been at fault in that particular, and it is that conclusion in this case, for the reason not for the courts to remedy the defect by that a denial of a trial by jury will not prej. judicial legislation. That we could not do. udice either party; that a trial can be had Now, the plaintiff, in that state of the legisby jury in the district court at an early day; lation, when he comes into the court, takes and we have an enormous amount of work the chances of such issues being made as now pending in this court, which will require will, under the law, deprive him of his right all of the time and attention of this court to finally proceed with the case, and have it that it can devote to it. We make that sug- determined there. We therefore come to this gestion at this time to the relator, holding that conclusion: That the cause cannot further while the parties may have a trial by jury proceed in this court, because such issues are in this character of a case in this court, no made as upon which the parties have a right machinery has been provided for a trial by to a jury trial, and, no means being provided jury in the supreme court; and we leave this by the legislature by which this court can sematter with the relator, with this suggestion, cure a jury, the cause must come to an end. for such further action in the premises as may be deemed proper, in order to protect

BURFORD, J. I would like to say, in adwhatever rights the relator may have.

dition to what the Chief Justice has said, It is suggested by Justice SCOTT that a mo- that, in reference to the trial of jury cases in tion to dismiss would be entertained by the

this court, I have no question but what, when court; that, inasmuch as the trial cannot be congress gave to the supreme court of this proceeded with in this court, this decision territory the power, or, rather, the jurisdic. settles the further proceedings in this court

tion, to try and determine mandamus proin this case.

ceedings, that carried with it whatever pow.

ers-whatever authority-belonged to that BIERER, J. I desire to say in this matter character of a case. If at common law there that I came to the conclusion which is adopt- was a jury case, which the court has held, ed by the court with a great deal of reluc- and on which I think there is no question, tance. It seems to me a rather harsh rule to then this court would have the right to try say that a party may come to this forum by jury; but we are left largely, in the conwith his grievance, in order to have it adjust- duct of our business in this court, to the acts ed and judicially determined by the court, of the legislature of the territory. The orand at the same time say that when the oth- ganic act has given this court no executive er party has filed an answer which puts in officers, no sheriff, or no marshal, as in most issue certain facts, which may be true or not of the states some officer is possessed with true, and upon that demands a jury, by rea- power to serve the process of this court. The son of the fact of such answer and such is- court has, no doubt, the inherent power to sue and such demand for a jury the plaintiff appoint a person or to designate some other officer for that purpose. The chief difficulty, employ attorneys to complain or to defend such it seems to me, lies in the fact that this court suits in any court of law or equity; and such has no funds at its command and none from employment, including the agreement for com

pensation, may be made by the president of such which it can draw. The law of this territory bank. Such employment by the president is a provides that the jury shall be drawn from sufficient authorization and employment, and the county in which the court is held, and

the bank will be bound thereby. The power to

complain and defend is not limited to suits in that the jurors shall be paid out of the pub- which the bank may be successful; nor is the lic treasury of the county in which the court right of the attorney to recover limited by the is held. There certainly is no power in this

character of the questions which may arise in

the case. court, under our statutory power, at least,

(Syllabus by the Court.) as prescribed by the territorial legislature, to draw upon the funds of Logan county to pay

Error from district court, Logan county; a jury in a case of this character. This court

before Justice Frank Dale. sits for the territory at large; it does not sit

Action by W. E. Earl against the National for Logan county; and it would be very

Bank of Guthrie. Judgment for plaintiff,

Affirmed. harsh upon the county where the capitol and defendant brings error. might be, or where the supreme court might Harper S. Cunningham and E. B. Green, have its sitting, to hold that such county for plaintiff in error. Asp, Shartel & Cotwould have to bear the expense of all the tingham, for defendant in error. juries had in the supreme court. There being no funds at our hand with which we MCATEE, J. This is an action for attorcan pay supreme court jurors, the difficulty ney's fees, brought by the defendant in erconfronts us that while we may have the ror, plaintiff below, against the plaintiff in power to try by jury, as suggested by the error, as compensation for legal services Chief Justice, we are left without machinery claimed to have been rendered by the defor securing a jury. We have no authority fendant in error to plaintiff in error in an for drawing a jury, unless we resort back action of replevin for a stock of clothing into the common law, and secure a jury by cluded in a mortgage to the National Bank open venire, and then we have no officer to of Guthrie from Melone Bros. The suit inexecute our process, and a number of diffi- volved the right of E. T. Patton & Co. to reculties present themselves. The power to cover the stock of clothing as against the draw a jury seems to be left in the authority attaching creditors of Melone Bros. The or jurisdiction to try these causes, yet we stock of goods had been sold to E. T. Pathave not been supplied by any provision or ton & Co, for the sum of $5,300 by Louis De authority by the legislature by which we can Steiguer, who was president of the National secure a jury or pay one. Another difficulty Bank of Guthrie. It was claimed by the might arise in securing the attendance of plaintiff below that the sale was made to witnesses, in issuing and serving process. E. T. Patton & Co. by Louis De Steiguer in These matters can all be remedied by the behalf of the bank, and that the bank had legislature. It is the purpose of the legis- warranted the title of the property to E. T. lature that this court shall be a jury court, Patton & Co.; that shortly after the delivwhich would be, as well suggested, a detri- ery of the property to E. T. Patton & Co. ment to public business, this being an appel- the other creditors of the firm of Melone late court; yet if this power is given us we Bros. had sued out writs of attachment, and are willing to exercise it, if we are given the caused the same to be levied on the goods process by which we can carry it into proper so sold by the bank to Patton & Co.; and effect.

that the employment of the defendant in error in the replevin suits against the said

creditors had been authorized by the bank, (2 Okl. 617)

through the said Louis De Steiguer, and NATIONAL BANK OF GUTHRIE v.

that Patton & Co. had employed the defendEARL.

ant in error, pursuant to such authority, to (Supreme Court of Oklahoma. Feb. 16, 1895.)

defend the title to such stock of goods, at TRIAL BY COURT-FISDINGS OF FACT-REVIEW ON

and for the agreed fee of $100; and that APPEAL-NATIONAL BANKS-POWERS-EM

the bank was advised of the contract, and PLOYMENT OF ATTORNEYS. 1. When evidence has been introduced be

assented to its terms. The plaintiff below, low upon all points included in the findings of defendant in error here, brought suit against fact made by the trial court, if such evidence the defendant, plaintiff in error here. Upon reasonably tends to support the findings, such

this contention the defendant filed a general findings of fact will not be disturbed in this court; and the rule upon this subject is the

denial, and contends that the employment, same when a case is submitted to the court be if any, of the defendant in error, was in be. low, without a jury, as when a jury is impanel- | half of Louis De Steiguer bimself. A jury ed to try the cause. 2. Under the fourth subdivision of section

was waived at the trial, and the cause sub5136 of the Revised Statutes of the United

mitted to the court. The court found the States, which provides that such national bank- issues for the plaintiff below, and also made ing associations shall have power "to sue and be

and found the following special findings of sued, complain and defend in any court of law or equity, as fully as natural persons." such na

fact and conclusion of law: "(1) That the tional banking associations have full power to mortgage given by Melone Brothers was given to the National Bank of Guthrie, to secure note to the bank to cover this overdraft of its whatever sum of money may have been ad- account; and that this note was made pay. vanced by the National Bank to Melone able to the National Bank of Guthrie, the Brothers. (2) That the National Bank of plaintiff in error. It is distinctly stated by Guthrie foreclosed the mortgage and thereby Mr. Brooks that the amount was charged up acquired possession of the goods. (3) That to the firm of E. T. Patton & Co. upon the the president, Louis De Steiguer, in the sale books of the bank as stated to him by De of said stock of goods, acted for the National Steiguer when the note of the firm was given Bank of Guthrie (4) That E. T. Patton & to the bank for the balance. Mr. Brooks apCo. purchased said stock of goods from the pears to have testified in the replevin suit National Bank of Guthrie, and paid the Na- that he made the purchase of the stock of tional Bank of Guthrie the consideration of goods from De Steiguer, and repeatedly in $5,300 for said stock of goods; that the con- that testimony referred to the purchase as tract for legal services was made by J. M. having been made from De Steiguer. His Brooks, for E. T. Patton & Co., with Louis attention having been called to this fact, he De Steiguer, president of the National Bank testified in the case as follows: "I may have of Guthrie; that the plaintiff in this case stated that I bought them of De Steiguer, acted under the agreement with the presi- | and I may have so stated in this evidence dent of the National Bank of Guthrie for (in the replevin case). If I made the statethe payment of one hundred dollars as at- ment that I bought them of De Steiguer, as torney, in defending the title to said stock an explanation of that I will say that if I of goods on behalf of the National Bank of wanted to buy a stock of goods of the GuthGuthrie." The court thereupon made the rie National Bank (as mortgagee) it would conclusion of law that “plaintiff is entitled be very probable, if I bought the stock, I to recover the sum sued for from the defend- would say I bought it of McNeal. He is repant."

resenting the bank; he is president. I did The plaintiff in error filed its motion in not know anybody but De Steiguer in this writing for a new trial, which was overruled bank, or in the business transaction.

He by the court, and judgment rendered in favor done its business, and I done business with of the plaintiff below and against the defend- him.” Mr. Brooks testified that De Steiguer ant below for the sum of $100, and costs of instructed him to employ the defendant in suit; to the overruling of which motion, and error in this case in behalf of the National to the rendering of such judgment, the defend- Bank of Guthrie. It is testified to by W. E. ant below at the time excepted, and brings Earl, defendant in error, that De Steiguer the record into this court upon various as- always told him that the bank took the signments of error, which are argued under stock of goods in liquidation of its debt. Mr. the sixth assignment, to wit, “that the court Brooks testified that before the trade was erred in overruling the motion for a new completed, or the check and note given, havtrial.” This assignment of error is argued ing heard suits threatened by the creditors upon two propositions, namely: First, that of Melone Bros., he went to De Steiguer, and the court erred in the finding of fact that E. was assured by him that the bank would T. Patton & Co. purchased the stock of goods stand behind him, and pay all expenses. F. from the National Bank of Guthrie, and paid W. Thwing, who was employed in the bank to it therefor the consideration of $5,300, but at the time, testified to this conversation be. that, on the contrary, the transaction was tween Mr. Brooks and L. De Steiguer, which the individual transaction of L. De Steiguer, was had in the bank; and that Mr. Brooks and was not the corporate act of the banks, was assured by De Steiguer that the bank and that the bank, by the transaction, as- would stand behind E. T. Fatton & Co. It sumed no liability to E. T. Patton & Co.; and, was testified also by the defendant in error second, that the transaction was one in which that De Steiguer told him that the stock of the bank could not engage under the law of goods was sold by the bank to E. T. Patton its creation; that the transaction, if made & Co. It is provided by the Code of Civil with the bank, was, therefore, ultra vires, Procedure that trials by jury may be waived, and, if made with the bank as a corporation, and that the provisions respecting trials by was void in law. Upon the first proposition, jury, so far as they are applicable, shall apevidence was produced in the case to the ply to trials by the court. Section 318, Code effect that the bank had a chattel mortgage Civ. Proc. (St. Okl. 1893). One of the grounds on the stock of clothing belonging to Melone of a new trial provided for by the Code of Bros. for something over $9,000; that it Civil Procedure (section 318) is "that the ver. foreclosed its mortgage, and sold the goods dict is not sustained by sufficient evidence." to E. T. Patton & Co.; that the firm of E. T. This provision of the Code has been adopted Patton & Co. settled therefor with the Na- from the state of Kansas. In that state the tional Bank of Guthrie by giving its firm supreme court has thereupon declared in check for the purchase price, payable to the Ilariin v. Joice, 21 Kan. 322, "that it is order of the bank; that by the giving of this error not to grant a new trial if there is not check the account of the firm of E. T. Patton sufficient evidence to sustain the verdict of & Co. with the National Bank of Guthrie the jury." While evidence was adduced to was overdrawn, and that the firm gave a contradict this testimony, yet it cannot be

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