104 S.W. 816 | Ct. App. Ind. Terr. | 1907
(after stating the facts as above). There are 27 specifications of error in the assignment. The second is as follows: “Error of court in overruling and denying the application of plaintiff in error'for a change of venue.” The motion and supporting affidavit are as follows: “Now comes the defendants in the above-styled cause and moves the court to grant them a change of venue in the above cause for the reason that the prejudice against the defendants in the division of the Southern district of the Indian Territory in which said cause is pending is so great that the defendants cannot obtain a fair and impartial trial in said action, and defendants except to Ardmore. Gilbert & Bond, Attorneys for defendants. E. J. Kelly, being duly sworn on oath states that he is one of the defendants in the above-styled and entitled cause, and the several matters and things set forth in the foregoing motion are true. E. J. Kelly. Subscribed, etc. * * * Before me, the undersigned authority, this day personally ap
The motion was contested on the ground that the attesting witnesses were not credible persons, as provided by the statute. On the hearing of this contest the court examined both of the attesting witnesses, and none others, and upon their testimony overruled the motion for a change of venue, to which action of the court exception was duly saved. It was agreed that the testimony of these two witnesses was as follows: 'By 13. P. Sturgeon, that he was 20 years of age, that he had lived for some time upon the farm of E. J. and T. B. Kelly, appellants, herein, a place containing 7,000 'or 8,000 acres of land; that. Kelly brought the affidavit for change of venue to- him and asked him to sign it; that he did not know the size of the district, and never heard any other persons, except the renters on this, place, say anything aboj.it the case, and did not know the-boundaries of the territory returnable to the Ryan court;, that he was acquainted with some of the Browns who had formerly lived on the same place, and with whom Kelly had some trouble; and that a relative of the Browns was at that, time postmaster at Ryan. By C. B. Arnold, that he had not heard any one say the Kellys could not obtain a fair and impartial trial at Ryan; that he did not even know the size of the territory returnable to Ryan court. The statute requires that the witnesses shall be two credible'persons; and whether théy be such or not is a matter of fact for the court to determine before the order is made. If the witnesses are found to be credible, the order for a change of venue goes as a matter of
The fourth to the ninth and the twentieth, assignments complain of the action of the court in sustaining objections of the plaintiff to certain questions asked by the defendant of witnesses. The first question to which objection was sustained was asked the defendant Brunner: “Well, did you buy it (the goods which counsel had previously designated as 'stuff') for the season of 1903, or for some other season?” Again: “What understanding, if any, did you have with the agent of the Moline Plow Company as to the manner in which this stuff that you purchased would be sold?” And, “Was there any
The next error argued by defendant is: “Error of the court in refusing at request of counsel for plaintiff in error to instruct for plaintiff in error when defendant in error rested its case.” This error; the twelfth, as well as the twenty-second assignment, is based upon the assumption that as the plaintiff below was a manufacturing and mercantile corporation, organized under the laws of Illinois, and doing business in the state of Kansas, and had no agent in the territory of Oklahoma upon whom to serve notice, that the contract was unenforceable. The proof'shows that the goods were ordered by defendants through a salesman of plaintiff, at Waurika, Okla.; that the contract was signed at that place, but by one of its written
There are other errors assigned, but we have discussed all in which there is any merit.
We think the court did not err in peremptorily directing a verdict for plaintiff below. ■
Affirmed.