Bank of Fairview v. Martin Et Ux. , 33 Okla. 319 ( 1912 )

KANE, J.

This was an action commenced by the plaintiff in error, plaintiff below, against the defendants in error, defendants below, to recover damages for the conversion of certain live stock upon which the plaintiff held a chattel mortgage. Upon trial there was a verdict for the defendants, upon which judgment was duly entered, to reverse which this proceeding in error was commenced.

One of the questions submitted to the jury is covered by an instruction to the effect that the burden of proof is upon the defendants to establish by a preponderance of the evidence that the cattle which the defendants got from' Mrs. Leach (the mortgagor) are the same cattle which the plaintiff had a prior mort gage on. This instruction covers the principal question of fact presented to the jury, and as they resolved it in favor of the defendants, and there is evidence reasonably tending to support their finding, this court is not at liberty to disturb the judgment of the court below upon the merits.

We have examined the brief of counsel for plaintiff in error and the record with considerable care,, and are satisfied that they' present no contention that would authorize a reversal.

Section 5680, Comp. Laws 1909, provides:

“The court, at every stage of action, must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.”

The judgment of the court below must therefore be affirmed.

TURNER, C. J., and HAYES and DUNN, JJ., concur; WILLIAMS, J., absent, and not participating.