Kennedy v. Pulliam , 60 Okla. 16 ( 1916 )

This action was commenced in a justice of the peace court of Cherokee county, by defendant in error, hereinafter styled the plaintiff, against the plaintiff in error hereinafter styled the defendant, to recover for work and labor performed for defendant by plaintiff's infant son, under a parol contract between plaintiff and defendant. Upon appeal to the district court of Cherokee county plaintiff had judgment, and defendant brings this proceeding in error to reverse said judgment.

It appears that the real name of the plaintiff is Canzada Pulliam, and defendant's first assignment of error is that the court erred in assuming any jurisdiction in the case, at all, because the record shows that there never was any party plaintiff. The defendant filed an answer denying any indebtedness to M.V. Pulliam, to which plaintiff replied, stating, among other things:

"* * * That her correct name is Canzada Pulliam, and that the name of M.V. Pulliam, as it appears in the pleadings, is a clerical error."

It does not appear from the record that any formal order of amendment was made, but, in the proceedings in the district court, the pleadings and orders were sometimes entitled "M.V. Pulliam," and at others, "Canzada Puliam." The court instructed the jury that the action was brought by plaintiff, Canzada Pulliam, and the verdict was entitled Canzada Pulliam v. W.M. Kennedy. The defendant, in an amended motion to dismiss, entitled his motion, "Canzada Pulliam, plaintiff." The defendant was not prejudice by the misnomer in the bill of particulars. There is no merit in this contention of defendant, and the pleadings may be treated as having been amended so as to state the real name of the plaintiff.

Defendant next contends that the court erred in not dismissing the action because it was presumed to be commenced with the filing of a bill of particulars. In this counsel for defendant is in error, since actions before justices of the peace are commenced by summons or by appearance and agreement or the parties without summons. Section 5359, Revised Laws, 1910. It is true that the statute requires that a bill of particulars be filed by the plaintiff at the time the action is commenced; but the filing of the bill of particulars is not the commencement of the action. It is urged by defendant that no bill of particulars was filed until after the commencement of the action. Defendant also complains of the sufficiency of the summons. He has, however, waived all these irregularities by making a general appearance in the action. After the commencement of the action, defendant moved to dismiss the action. This motion being overruled, the case was tried before the justice of the peace and judgment rendered for plaintiff, from which judgment defendant appealed to the district court. This constituted a general appearance and waived any defects in the summons, or any irregularity in the filing of the bill of particulars. Gulf Pipe Line Co. v. Vanderberg, 28 Okla. 637,115 P. 782, 34 L. R. A. (N. S.) 661, Ann. Cas. 1912d 407; Doggett v. Atchison, T. S. F. R. Co., 31 Okla. 177,120 P. 654.

Defendant next complains of the refusal of a continuance requested by defendant. The granting or refusing a continuance rests within the sound discretion of the trial court, and unless it is made to appear that there has been an abuse of such discretion the action of the trial court upon a motion for continuance will not constitute reversible error. Walton v. Kennamer, 39 Okla. 629, 136 P. 584; Jennings Co. v. Dyer,41 Okla. 468, 139 P. 250. In the instant case the showing of the defendant was wholly insufficient to authorize a continuance in that it fails to appear that defendant could not prove the same facts, that he expected to show by the absent witness, by any other witness, and so far as the record discloses, the evidence expected to be obtained from the absent witness was merely cumulative.

Defendant next complains of the overruling of the motion for new trial because of the misconduct of the jury. The only evidence of any misconduct of the jury consisted of the affidavits of jurors, and it has been repeatedly held by this court that the verdict of a jury cannot be impeached by affidavits of jurors as to what occurred during their deliberations. Chicago, R.I. P. R. Co. v. Brown,55 Okla. 173, 154 P. 1161, and cases there cited.

The last ground of error assigned is the overruling of the motion of the defendant for a new trial upon the ground of newly discovered evidence. The newly discovered evidence set up by defendant, if material at all, only went to impeach the evidence of one of the witnesses of plaintiff, and therefore it is not sufficient ground for a new trial. Huster v. Wynn.8 Okla. 569, 58 P. 736; Lookabaugh v. Bowmaker, 30 Okla. 242,122 P. 200.

The assignments of error made by the defendant are wholly without merit, and the judgment of the court below should be affirmed.

By the Court: It is so ordered.