137 P. 346 | Okla. | 1913
This is the second time this cause has been before this court. An opinion was handed down on the first appeal September 25, 1908, and is reported in
"The complaint in the case at bar not only alleges a purchase of the lease under which the appellee went into possession by the appellant, but also the purchase of the land itself." *123
The two decisions of the Supreme Court of Arkansas cited as authority for that decision were Johnson et al. v. West,
In the trial of the cause, after the plaintiff had introduced his evidence, the defendant demurred to it and this demurrer was overruled. He then moved the court for an instructed verdict in his favor, and this was overruled, and the cause was then submitted upon the plaintiff's evidence and a verdict returned for the defendant. The plaintiff then filed a motion for new trial, which motion was by the court sustained. The defendant appealed and assigned as error the ruling of the court in refusing *124 an instructed verdict, and the overruling of the demurrer to the plaintiff's evidence, and the order granting a new trial, and the ruling of the court in admitting certain evidence. It is clear from an examination of the record that the ruling of the trial court in overruling the demurrer to the plaintiff's evidence and refusing to instruct a verdict for the defendant was right, since there was introduced competent evidence to show that the plaintiff in February, 1903, purchased the lease from the defendant's landlord, having some two years to run, and that the defendant was notified of this purchase. There was evidence, as shown by the record, sufficient to make out aprima facie case for the plaintiff — evidence sufficient, if not contradicted, to entitle him to a verdict and ample to support a verdict if returned for him. The court did not err in overruling the demurrer to the evidence and in refusing to instruct the jury to return a verdict for the defendant.
Under the assignments of error relative to the admission of the evidence, but one instance is referred to; that is the admission of a copy of the lease without the proper certificate attached thereto. The copy was not properly certified in order to entitle it to be admitted in evidence; still this error was immaterial. The defendant was not injured by it, as the verdict of the jury clearly demonstrates. Then the contents of the lease were not material anyway. The only material point about the lease was whether or not it had been assigned to the plaintiff and the length of time it had run, and these facts were established by other testimony aside from this copy.
As to the assignments challenging the action of the court in vacating and setting aside the verdict of the jury and granting a new trial, the rule is well established in this jurisdiction that such rulings will not be disturbed unless it is made clear that the trial court "manifestly and materially erred with respect to some pure, simple, and unmixed question of law," and but for such errors would not have so ruled. See Ardmore LodgeNo. 9, I. O. O. F. v. Dawson et al.,
Four separate grounds are set out in the motion for new trial. It does not appear whether the court granted the motion for new trial on one or all of them. We are unable to say that the court in vacating the verdict and granting a new trial erred in a simple, pure, and unmixed question of law, and but for that error would not have so ruled. We are rather inclined to the opinion that the trial court exercised wisely the discretion vested in it in this instance.
It therefore follows that the judgment appealed from should be affirmed.
By the Court: It is so ordered.