MATHEWS v. AUSTIN

MATHEWS v. AUSTIN
1926 OK 701
249 P. 299
119 Okla. 173
Case Number: 16971
Decided: 09/14/1926
Supreme Court of Oklahoma

MATHEWS et al.
v.
AUSTIN.

Syllabus

¶0 1. Appeal and Error--Review of Findings of Referee--Lack of Record of Evidence.
Where a cause is referred to a referee to find and report the facts and conclusions of law to the court, and no bill of exceptions is allowed and signed by the referee preserving the evidence, this court cannot consider the question of the sufficiency of the evidence to support the findings of the referee.
2. Same--Presumption of Correctness of Findings.
Where the findings of a referee are substantially predicated upon the issues joined by the pleadings, it must be presumed by this court, in the absence of the evidence from the record, that there was sufficient testimony introduced at the trial to warrant the findings. Campbell v. Sherman, 20 Okla. 185, 95 P. 238.

Gaylord R. Wilcox, for plaintiffs in error.
C. F. Chapman, for defendant in error.

THREADGILL, C.

¶1 The action in this case was brought in the justice of the peace court. Maggie Austin, who was plaintiff, alleged, in substance, that she was the owner and entitled to the immediate possession of lot 8 in block 2, Business Men's addition to the city of Sapulpa; that defendants were guilty of unlawful and forcible detention of same, and in possession of that part of said lot on which the house was situated. The defendants answered by general denial, and further pleaded possession under color of title; that plaintiff had never been in possession of said premises, and the relation of landlord and tenant had never existed between the plaintiff and defendants, or either of them. The cause was tried in the justice of the peace court, and defendants were found guilty, and plaintiff obtained judgment for restitution. Defendants appealed to the district court, and by agreement of parties the cause was referred to Thos. S. Harris, county judge, as referee, with direction that he make findings of fact and conclusions of law. The parties waived a jury and the said referee heard the evidence and found for the plaintiff as follows:

"And the court being fully advised by the pleadings, testimony of witnesses, and argument of counsel, upon consideration thereof, finds the issues in favor of the plaintiff and against the defendants. And the court finds further that the plaintiff, Maggie Austin, now is, and at the time of the institution of this action was, entitled to the immediate possession of the following described property and premises situated in Creek county (describing it) together with all improvements"

--and thereupon rendered judgment for restitution. The defendants excepted, and filed objections in the district court to the report and findings of the referee. The substance of the objections was that the report was contrary to the evidence; that the evidence shows that plaintiff was never in possession of the property; that the relation of landlord and tenant had never existed between the parties, and that the defendant J. H. Mathews was in the peaceable possession holding under color of title.

¶2 On April , 1925, the court heard the motion of plaintiff to confirm the referee's report, also the objections of defendants to the report, and sustained the motion and overruled the objections. Defendants filed motion for a new trial, alleging, in substance, the same facts as stated in the objections to the report, and from an order overruling the motion, this appeal is prosecuted. Defendants allege as error, lack of evidence to support the judgment, and error of the court in overruling defendants' objections to the referee's report, and discuss the assignments under two propositions as follows:

"First Proposition: Can the plaintiff maintain an action in forcible entry and detention, or unlawful and forcible detention, who has never been in possession of the property in controversy?

"Second Proposition: Has a justice of the peace jurisdiction to hear, try, and determine a case in forcible entry and detention, where the relationship of landlord and tenant does not exist, and where the defendant is holding under color of title?"

¶3 Defendants contend for the negative of these propositions, and in support of the first we are cited to Brown et al. v. Mayhall, 63 Okla. 268, 164 P. 973; Link v. Schlegel, 33 Okla. 458, 126 P. 576; Ward v. Markham, 73 Okla. 143, 175 P. 113; Northcutt et al. v. Bastable, 39 Okla. 124, 134 P. 423; Gross v. Baker, 47 Okla. 361, 148 P. 734; and in support of the second we are cited to McHenry v. Gregory, 57 Okla. 435, 156 P. 1158; Cross v. Baker, supra; Northcutt et al. v. Bastable, supra. We have examined these authorities, and are of the opinion that they fully support defendants' contentions.