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1926 OK 1009
254 P. 739
124 Okla. 179
Case Number: 17494
Decided: 12/21/1926
Supreme Court of Oklahoma



¶0 Appeal and Error--Questions of Fact--Review in Law Action.
Where the decisive issue in a law action is one of fact, and is submitted to the court, the judgment of the trial court will not be disturbed on appeal, if there is evidence reasonably tending to support same.

Commissioners' Opinion, Division No. 3.

Error from District Court, Ottawa County; J. J. Smith, Judge.

Action by N.W. Moxley against the Bank of Picher. From the judgment, the latter appeals. Affirmed.

J. G. Austin, for plaintiff in error.
Jesse A. Harp and M. A. Dodd, for defendant in error.


¶1 This action was originally instituted in the justice of the peace court for Quapaw township, Ottawa county, by the defendant in error, as plaintiff, against the plaintiff in error, as defendant, to recover the sum of $ 131.50 evidenced by a certain check duly executed by the plaintiff and presented to the defendant bank for payment, which was refused.

¶2 The plaintiff alleges in his bill of particulars that in February, 1924, he deposited in the defendant bank in the city of Picher in said county the sum of $ 531.50, that he had procured said sum of money by reason of a certain transaction had for and on behalf of one T. L. Rogers, and that the amount represented by the check, to wit, $ 131.50, was his commission in said transaction, and that the residue, to wit, $ 400, was deposited by him and held in his name as a trust fund for the benefit of the said Rogers. Plaintiff further alleges that the defendant refused to pay said check, and falsely claimed that the plaintiff was indebted to the defendant, which the plaintiff denies.

¶3 An appeal was prosecuted from the result of the trial had before the justice of the peace court to the district court of Ottawa county, and a trial de novo was had, which resulted in judgment for the plaintiff and against defendant. In the district court, the defendant filed an answer wherein it was averred that, as alleged by the plaintiff, there was a deposit in the sum of $ 531.50 placed in the defendant bank in the name of the plaintiff, N.W. Moxley, and that on said date, to wit, February 13, 1924, the plaintiff was indebted to said defendant upon a certain note then due and owing in a greater sum than the amount of said deposit, and that the defendant bank applied the deposit upon the indebtedness owing by plaintiff to the defendant.