132 P.2d 959 | Okla. | 1943
This action was instituted by M.L. Rogers, hereinafter referred to as plaintiff, against Conley Drilling Company, hereinafter referred to as defendant, and H.N. Conley to recover a money judgment and to foreclose a materialman's lien upon an oil and gas mining leasehold estate for the development of which plaintiff had furnished certain tools and equipment which had been used in developing said leasehold estate for oil and gas mining purposes. A number of lien claimants intervened in the action, including Dowell Inc., hereinafter referred to as intervener, which by petition sought a money judgment and foreclosure of materialman's lien against the defendant and its codefendant. In the trial court defendant and codefendant filed separate answers, the answer of the defendant being a general denial, a specific denial of agency and a plea of non indebtitatus assumpsit, while the answer of its codefendant was merely a general denial. Upon the issues thus drawn, the parties waived trial by jury and tried the cause to the court. The evidence was conflicting in certain material respects. The trial court found the issues in favor of the plaintiff and the named intervener and rendered judgment in their favor against the defendant and its codefendant. Motion for new trial was overruled, and Conley Drilling Company alone appeals.
As grounds for reversal of the judgment the defendant submits the following propositions:
"1. There is a defect of party plaintiffs which was not known to the plaintiff in error until brought out in the testimony of the defendant in error M.L. Rogers, plaintiff below.
"2. That the evidence is insufficient to sustain the judgment against this plaintiff in error as to both defendants in error.
"3. That the court permitted both defendants in error to introduce incompetent and irrelevant evidence over the objections of the plaintiff in error, which was excepted to at the trial.
"4. In a case of equitable cognizance this court will examine the record, weigh the evidence and render such judgment as the trial court should have rendered."
We first consider the contention relative to the claim that plaintiff was not the real party in interest, and therefore not entitled to maintain the action which he had brought. This contention is based upon the fact that the evidence disclosed that some of the tools and equipment which plaintiff had furnished for developing the lease had been rented by him from another. Defendant urges that this made the person from whom plaintiff had rented such tools and equipment a necessary party to the maintenance of the action, and cites in support of such contention Illinois Oil Co. v. Block,
"When there is competent evidence to show that the person bringing an action has the right to receive and control the fruits or benefits of the litigation, such person satisfies the requirement that actions be brought in the name of the real party in interest. Following Stinchcomb v. Patteson,
See, also, McCoy v. Moore,
In support of the contention advanced under the second proposition, defendant urges that the evidence was insufficient to establish a mining partnership under the requirements announced in Wammack v. Jones,
Under the third proposition the defendant neglects to point out the evidence which it claims was incompetent and admitted over its objections; therefore, the contention is too indefinite to require consideration. See Harris v. Boyd,
Finally, it is contended that, the action being one of equitable cognizance, this court should examine and weigh the evidence and render such judgment as the trial court should have rendered. The defendant is in error in its primary statement in this connection. The action being one to recover judgment on contract for tools and equipment furnished and to foreclose a lien, and the issues being joined as to the making of the contract, either party was entitled to trial by jury as a matter of right to determine the existence of any indebtedness. See Hedlund v. Brogan,
The record which has been brought here presents no reversible error; therefore, the judgment will be and the same is affirmed.
WELCH, C. J., CORN, V. C. J., and OSBORN, GIBSON, HURST, DAVISON, and ARNOLD, JJ., concur. RILEY and BAYLESS, JJ., absent.