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1957 OK 145
313 P.2d 520
Case Number: 37471
Decided: 06/11/1957
Supreme Court of Oklahoma


Syllabus by the Court.

¶0 1. To obtain consideration by the Supreme Court of the question of the sufficiency of the evidence as a whole for submission to the jury, a defendant must raise said question after said evidence has all been introduced. It is not raised and preserved for review where defendant demurs to plaintiff's evidence, and after said demurrer is overruled, introduces evidence in his own behalf, and makes no objection to the sufficiency of the evidence as a whole until the filing of his motion for a new trial.
2. Where a motion for new trial is made on the ground of newly discovered evidence, it is essential that the affidavit of any witness, expected to give the alleged newly discovered evidence, be produced, or its absence accounted for; and the oral statement of movant's attorney in open court that such a witness exists and would testify to the newly discovered fact, or facts, is ordinarily not sufficient compliance with this statutory requirement.

Appeal from the District Court of Oklahoma County; Fred Daugherty, Judge.

After money judgment against him and another, for damages to plaintiff's automobile, L.E. Richardson d/b/a Richardson Service Station, appeals. Affirmed.

Bruce & Rowan, Oklahoma City, for plaintiff in error.

George E. Fisher, J.A. O'Toole, Oklahoma City, for defendant in error.


¶1 Plaintiff in error, L.E. Richardson, d/b/a Richardson Service Station, operates the automobile service, and/or filling, station, in Oklahoma City, where an automobile belonging to defendant in error was damaged in a collision with an auto driven by one Alonzo Anderson. Seeking to recover his damages in the now undisputed sum of $450.90, defendant in error instituted, as plaintiff, the action involved here against both Anderson and plaintiff in error, as defendants. Anderson made no appearance and after a trial defended only by Richardson, the jury rendered separate verdicts in the aforesaid amount against both Richardson and Anderson. After judgment was entered accordingly, Richardson perfected the present appeal. Both he and defendant in error will hereinafter be referred to by their trial court designations of "defendant" and "plaintiff", respectively.

¶2 According to defendant's brief, the assignments of error argued in the first, and major, portion thereof "deals with the insufficiency of the evidence to show any negligence or liability" on his part "in connection with the damage done to the car * * *". This question is not before us because defendant has preserved for review no alleged error that he argues in connection therewith. The only ones he therein both claims and argues are the alleged errors of the trial court in overruling his demurrer to plaintiff's evidence, and in refusing to direct a verdict in his favor. As to the latter, he fails to show, and, upon a careful examination of the record, we have been unable to find, any indication in the record that he ever moved for a directed verdict. There is therefore nothing upon which he can predicate, or we can review, such an alleged error. The allegation of such refusal in his motion for new trial is wholly insufficient for that purpose, in the absence of his property raising the question of the insufficiency of the evidence, after it was all in, and before submission of the cause to the jury. See Bolon v. Smith, 170 Okl. 407, 40 P.2d 677, and Howlett v. Mayo's Inc., 186 Okl. 651, 100 P.2d 263. Nor can we review the sufficiency of the evidence for submission to the jury, or to support the verdict, on the basis of the trial court's alleged error in overruling his demurrer to plaintiff's evidence. See Chickasha Cotton Oil Co. v. Hancock, Okl., 306 P.2d 330.

¶3 This brings us to the alleged error of the trial court in overruling two written motions defendant filed, after the overruling of his regular motion for a new trial, and more than one month, and eleven weeks, respectively, after the judgment was entered. The first of these, he termed a "Separate Motion for New Trial * * * Based upon Newly Discovered Evidence"; the second, he termed an "Amendment" to said motion. The only specific ground mentioned in the first of these motions, to which defendant's brief refers, is the 4th one, in which he alleged that an insurance company paid plaintiff for the same damages to his auto that he recovered from said defendant. If this allegation were proved to be true it would constitute no valid ground of objection. See paragraph 2 of the syllabus in Denco Bus Lines v. Hargis, 204 Okl. 339, 229 P.2d 560, and Huey v. Stephens, Okl., 275 P.2d 254. Moreover, no affidavit of any witness, as is required by Tit.

"The only exception made by section 5035, R.L. 1910 [

"Section 5036, R.L. 1910 [Tit. 12, sec. 654, supra], requires that a motion for new trial on the ground of newly discovered evidence, which attempts to come within the exception to the three-day rule, must be sustained by affidavit showing the truth of the facts alleged.

"To relieve the necessity of filing motion for new trial within three days after judgment, there must be presented by motion and supported by affidavit a prima facie showing of newly discovered evidence which will probably change the result of the trial, * * *.

"For plaintiff in error to be entitled to a new trial on the ground of newly discovered evidence, the motion should set forth the name and place of residence of the witness, what he would testify to, and be accompanied by the affidavit of said witness, or a sufficient reason should be given for not producing the affidavit." (Emphasis ours.)

¶4 Among these pleadings' other possible inadequacies, notice also Russell v. Margo, 180 Okl. 24, 67 P.2d 22, 24. Defense counsel's offer of proof as to what the police officer would testify to, in support of the "Amendment" to defendant's Motion on the ground of newly discovered evidence, neither mentioned nor offered any reason for not producing the officer's affidavit. In Glen v. Buck, Okl., 272 P.2d 573, we held:

"Where a motion for new trial is made on the grounds of newly discovered evidence, it is essential that the affidavits of the witnesses who will give the newly discovered evidence should be produced, or their absence accounted for. As a general rule, the unsupported affidavit of the applicant or his attorney will not be sufficient." (Emphasis ours.)

¶5 On the basis of the foregoing, it was not an abuse of discretion, or error, for the trial court to overrule defendant's application for a new trial on the ground of newly discovered evidence. As its order and judgment must be affirmed for that reason, it is unnecessary to determine whether or not the testimony, that was claimed to be available to support it, would have been adequate. Accordingly, said judgment is affirmed.



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