KALLMEYER v. GARLAND

KALLMEYER v. GARLAND
1924 OK 725
229 P. 166
100 Okla. 225
Case Number: 13916
Decided: 09/16/1924
Supreme Court of Oklahoma

KALLMEYER et al.
v.
GARLAND.

Syllabus

¶0 1. Appeal and Error--Objections in Lower Court--Insufficiency of Evidence.
In the absence of a demurrer to the evidence or a motion for a directed verdict, the insufficiency of the evidence to sustain the verdict is not presented to this court on appeal.
2. Appeal and Error--Failure to Cite Authorities--Affirmance.
Where a plaintiff in error does not support his contention by any authority whatever, if an examination of the record discloses that there is no prejudicial error and that substantial justice has been done, the judgment will be affirmed without discussing the affirmance in detail.
3. Appeal and Error--Review--Conflicting Evidence--Verdict.
On appeal the Supreme Court will not Consider and weigh conflicting evidence, and where there is evidence reasonably tending to support the verdict of the jury, the same will not be disturbed.

Commissioners' Opinion, Division No. 3.

Error from District Court, Ottawa County; S. C. Fullerton, Judge.

Action by Thomas W. Garland against Theodore Kallmeyer and another. Judgment for plaintiff, and defendants appeal. Affirmed.

Burns & Turner, for plaintiffs in error.
L. A. Wetzel, for defendant in error.

RUTH, C.

¶1 Plaintiff below, Thomas W. Garland, sued the defendants below, Theodore Kallmeyer and H. A. Davidoff, on open account. The defendants' answer admitted the account, but alleged they were entitled to a certain credit for goods returned to plaintiff, and the cause was tried to a jury and a verdict rendered for plaintiff for the sum claimed. Judgment was entered thereon, and defendants appeal. Defendants did not demur to the evidence or request an instructed verdict, and the insufficiency of the evidence to sustain the verdict is not presented to this court on appeal. Muskogee Traction Co. v. Reed, 35 Okla. 334, 130 P. 157; Reed v. Scott, 50 Okla. 757, 151 P. 484; Dodson and Williams v. Parsons, 62 Okla. 298, 162 P. 1090; Simpson v. Mauldin, 61 Okla. 92, 160 P. 481; Van Arsdale and Osborne Brokerage Co. v. Hart, 62 Okla. 119, 162 P. 461.

¶2 Defendants in their brief do not specify the errors relied on as required by rule 26 of this court, and defendants are not entitled to a reversal, and for failure to comply with the rule under which a cause may be dismissed. McDonald Coal Co. v. Equitable Powder Mfg. Co., 38 Okla. 177, 132 P. 486; Grubbs v. Needles, 5 Indian Terr. 458, 82 S.W. 873; Barnes v. Benham, 13 Okla. 582, 75 P. 1130; Ferguson v. Union National Bank, 23 Okla. 37, 99 P. 641; Brunson v. Emerson, 34 Okla. 211, 124 P. 979.

¶3 In the two and one-half pages of brief of defendants they do not submit one authority, and where no authority is submitted to support the plaintiff in error's contention, the judgment will be affirmed without discussing the affirmance in detail. Carr v. Seigler, 52 Okla. 485, 153 P. 141; Chickasha Gas & Electric Co. v. Griffin, 46 Okla. 228, 148 P. 729.

¶4 Defendants in their brief say the "issues are simple and clear cut; that the instructions fairly presented the law, but that the jury was not composed of men having technical knowledge of bookkeeping, and the verdict is not fairly supported by the preponderance of the evidence."

¶5 Defendants neither demurred to the evidence nor asked for an instructed verdict, and therefore the evidence is not before us, and as this is the only point contended for by the defendants, the judgment of the court below should be affirmed.