FIRST NAT. BANK OF TEMPLE v. BROWN

FIRST NAT. BANK OF TEMPLE v. BROWN
1917 OK 14
162 P. 454
62 Okla. 112
Case Number: 7299
Decided: 01/02/1917
Supreme Court of Oklahoma

FIRST NAT. BANK OF TEMPLE
v.
BROWN et al.

Syllabus

¶0 1. Appeal and Error--Verdict--Evidence. "The evidence in support of a verdict of the jury on appeal is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected, and, where all the evidence supporting the verdict, taken together, together with all presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not hold it should be set aside on the ground that other evidence, had it been accepted, would have justified a different verdict." Johnson v. Walters,

Hamon & Ellis, for plaintiff in error.
W. C. Stevens, for defendant in error R. L. Brown.

HAYSON, C.

¶1 This was an action brought originally in Comanche county, and later transferred to Cotton county, in which the plaintiff in error, First National Bank of Temple, sought to recover judgment upon a promissory note given in its favor by defendant in error L. O. Montgomery for the partnership of Brown & Montgomery. The defendant L. O. Montgomery filed no pleadings in the cause and, so far as the record discloses, was not represented by counsel. The defendant R. L. Brown denied under oath the execution of the instrument sued upon, denied that the execution of said instrument was authorized by him in any manner, and that the instrument was executed in payment of any partnership indebtedness, or indebtedness for which defendant R. L. Brown was in any manner liable. Upon the issues thus made, the cause first went to trial in Comanche county, and plaintiff recovered judgment. Defendant appealed to the Supreme Court, and the judgment was reversed and remanded. Brown et al. v. First Nat. Bank of Temple,

"Where the law applicable to the facts material to the issues joined by the pleadings in an action is fully and fairly submitted to the jury by the court, a verdict of the jury, based upon conflicting testimony, will not be disturbed, if it is reasonably supported by the testimony in the case."

¶2 And again in Johnson v. Walters,

"The evidence in support of a verdict of the jury on appeal is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected, and where all the evidence supporting the ver- dict, taken together, together with all presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not hold it should be set aside on the ground that other evidence, had it been accepted, would have justified a different verdict."

¶3 To the same effect are the following cases: Roff Oil & Cotton Co. v. Winn,

"Where appellant complains of the admission and rejection of testimony, and of the refusal of the court to give requested instructions, and fails to set out in his brief the full substance of said testimony, and fails to set out therein in todidem verbis separately said requested instructions, he fails to comply with rule 25 of this court [38 Okla. x, 137 P. xi], and same will not be considered."

¶4 The seventh assignment of error is that the defendant in error failed to offer any evidence which could defeat plaintiff''s claim in so far as it concerned $ 3,134 and interest. This goes to the same question as set out in the first assignment of error, and'' it is unnecessary to make any further comment upon it here. Plaintiff in error, under this assignment, complains that the court received the verdict at 7 p.m. while its counsel was absent from the court, and discharged the jury; that the jury found only in favor of defendant R. L. Brown; that the court should have given plaintiff in error an opportunity to have requested a proper verdict. We cannot see any merit in this contention. The defendant L. O. Montgomery was duly served with a summons in this cause. The record discloses that no default was ever taken against Montgomery, and apparently no effort was made to take judgment against him at any time. The plaintiff seemed only to care for a judgment against defendant Brown, and every effort and energy of plaintiff in error has been put forth to that end. Counsel, if they intend to object to the verdict, should be present when the verdict is rendered, so that the court may have an opportunity to see that the same is corrected before the jury is discharged. If counsel is absent of their own accord when the verdict is rendered, they cannot be heard to complain because the court received the verdict in their absence. And under such circumstances counsel cannot be heard to say that they were given no opportunity to request a proper form of verdict. There is nothing in the record to show that counsel called the court''s attention to the form of verdict until the motion for new trial was filed, and, under the holding of this court when the cause was formerly submitted (

¶5 By the Court: It is so ordered.