MARSHIK v. FARMERS UNION COOP. EXCH.

MARSHIK v. FARMERS UNION COOP. EXCH.
1926 OK 862
250 P. 136
123 Okla. 76
Case Number: 16826
Decided: 10/26/1926
Supreme Court of Oklahoma

MARSHIK
v.
FARMERS UNION CO-OPERATIVE EXCHANGE.

Syllabus

¶0 1. Appeal and Error--Review--Necessity for Presenting Questions Below. In order to properly present a question to the Supreme Court for review, the record must affirmatively show that the alleged error complained of was presented to the trial court, and either ignored or decided adversely to the complaining party; and unless it is thus presented to the trial court, and an opportunity there given to pass upon it the same will not be considered by this court on appeal.
2. Appeal and Error--Questions of fact--Conclusiveness of Verdict. Where there is any competent evidence reasonably tending to sustain a verdict, though the evidence be conflicting, and the cause is submitted to the jury upon instructions fairly stating the applicable law, the Supreme Court will not review the evidence for the purpose of determining the weight thereof, and substitute this court's judgment for the judgement rendered on the verdict, and the verdict will not be disturbed on appeal.

I. H. Lookabaugh, for plaintiff in error.
F. M. Cooper, for defendant in error.

RUTH, C.

¶1 The Farmers Union Co-Operative Exchange filed its bill of particulars in the justice of the peace court for Blaine county, and prayed judgment against the defendant upon two causes of action: First. Upon a promissory note. Judgment was rendered for the defendant upon this cause of action, and the judgment not being appealed, the only question before this court is such as is raised by the second cause of action, in which the plaintiff prays judgment in the sum of $ 76.43 on open account. Defendant's answer is tantamount, first, to a general denial; and second, that he has overpaid the plaintiff, and claims a set-off and prays judgment against the plaintiff in the sum of $ 32.70. The cause was tried to a jury and verdict returned for plaintiff for $ 76.43 and interest. Judgment was rendered on the verdict, and defendant appeals. Defendant presents some six assignments of error, and argues them under one head, and first contends that as the bill of particulars was not verified, and his answer claiming a set-off was verified, and plaintiff's reply was not verified, defendant is entitled to judgment. Defendant simply pleads in his answer that he has overpaid plaintiff in the sum of $ 32.70 and prays judgment for this amount. He attaches no itemized statement, nor does he set forth any of the transactions, nor state how the sum was paid or when or where or how.

¶2 Defendant cites sections 4759, 4762, 4779, R. L. 1910, (section 287, 290 and 307, C. O. S. 1921, but these sections are not applicable to pleadings in an action commenced in a justice of the peace court. No answer is necessary to be filed in the justice of the peace court, but the defendant may, without filing pleadings, set up any defense he may have to plaintiff's claim. ( Western Union Tel. Co. v. Hollis, 28 Okla. 613, 115 P. 774), unless he claims a set-off, and though he claim a set-off, and verify the same, the plaintiff is not required to file a reply ( Johnson v. Johnson, 43 Okla. 582, 143 P. 670), but may set up any defense he may have to defendant's claim of set-off; and a pleading that is sufficient in a justice of the peace court is sufficient in the appellate court where the case is tried de novo upon appeal. Garvin v. Harrell, 27 Okla. 373, 113 P. 186; Rogers v. Hall, 46 Okla. 773, 149 P. 878; Sulzberger & Sons v. Hoover, 46 Okla. 792, 149 P. 887; Robberson v. Gibson, 62 Okla. 306, 162 P. 1120.

"Pleadings in a justice of the peace court must be liberally construed." Sulzberger & Sons v. Hoover, supra; Johnson v. Johnson, supra; Garvin v. Harrell, supra; Whitcomb v. Oller, 41 Okla. 331, 137 P. 709.