TRIBAL DEV. CO. v. WHITE BROTHERS

TRIBAL DEV. CO. v. WHITE BROTHERS
1910 OK 375
111 P. 195
Case Number: ___
Decided: 09/21/1910
Supreme Court of Oklahoma

TRIBAL DEVELOPMENT CO. et al.
v.
WHITE BROS.

SYLLABUS

¶0 In order to give this court jurisdiction to examine the evidence offered before a referee, the party aggrieved must save his exceptions to the findings of fact and file his motion for a new trial.

Error from District Court, McClain County; R. McMillan, Judge.

Action by the Tribal Development Company and others against the Berringer Hardware Company and others, in which White Bros. intervened. From a judgment for White Bros., plaintiff and certain of the defendants brought error. Dismissed.

J. W. Hocker, J. F. Blanton, and J. F. Sharp, for plaintiffs in error. J. S. Estes and Thorp & Thorp, for defendant in error.

TURNER, J.

¶1 On January 29, 1908, Tribal Development Company one of plaintiffs in error sued Berringer Hardware Company, Chickashaw National Bank, S. B. Finley, also plaintiffs in error, C. L. Roff, one of defendants in error, National Bank of Lexington, for the use of J. M. Parnell, and J. M. Parnell, in the district court of McClain county. The complaint substantially states that theretofore, on January 23, 1906, plaintiff was in lawful possession of certain lands (describing them) lying in McClain county, Okl., as lessee under various Indian allottees; that defendant Roff purchased said lands from plaintiff on that date, evidenced by a certified contract in writing attached to its petition as an exhibit, and upon its execution entered into possession of said lands, and has since so remained; that there is due plaintiff from defendant, as purchase money thereon, $696; that in violation of said agreement said Roff has failed and refused to pay certain rentals due the allottees, originally payable by plaintiff; that by reason of said failure plaintiff has paid for said Roff the sum of $320; that said Roff has failed to execute to plaintiff a mortgage to secure said money on the crops grown on said premises; that he is insolvent, is disposing of the property, and has given mortgages thereon to the other defendants; and prays that they be required to show their interest in said property, and why the same is not junior to his, that a receiver be appointed, and for general relief. Later all defendants answered, setting up their respective claims, whereupon White Bros., defendants in error, intervened and set up their claim. A receiver was appointed and the case referred to a referee, to take proof and report the facts and law, which he did. On the coming in of said report, the claims of all concerned were satisfactorily adjusted, with the exception of that of White Bros., interveners, which was, in effect, a suit in damages against defendant for the violation of a contract of bailment of certain cattle, which he agreed to pasture for hire on the premises in controversy, and which White Bros. alleged had been breached to their damage, and that, inasmuch as they had paid into court the stipulated amount due for pasturage, subject to their claim for damages for the breach aforesaid, insisted that they were entitled to a first lien upon the funds in the hands of the receiver to satisfy the same.

¶2 Concerning this claim the referee took proof, and reported in substance that pending the receivership, to wit, on April 16, 1908, interveners delivered to defendant 640 head of cattle to be pastured by him for them upon the premises in controversy for 30 cents a head per month; that at the time it was further stipulated between them that defendant was to take proper care of said cattle, furnish them with grass and water, and return them to interveners when called for; that defendant at the time also agreed to extend his pasture according to lines then designated, erect fences around the same, and build two additional tanks; that the designated fence on the north had not been built, nor the tanks erected; that defendant's pasture connects on the southeast and southwest with three pockets, which in turn connect with neighboring pastures by lanes running between cultivated farms, the whole comprising an area of grazing land common to the neighboring occupants; that into the pasture so connecting defendant turned the bailed cattle, which strayed out over said district, from which 70 head were rounded up in August, 1908, by interveners in the general roundup, without complaint, at a cost to them of $130, at which time all but about 18 head were found; that after the bailment upon assurance of defendant that all outlets and pockets adjacent to said pasture were secured by gates, interveners acquiesced in the practice of grazing said cattle upon the commons inclosed in said pockets until complaint was made that they were trespassing, whereupon they protested, but the same was continued until after the general roundup; that said practice was common to all cattlemen in that district; that said cattle were brought into that country in the spring of 1908, and it was the opinion of the referee that no unusual number wandered away. Continuing, the referee said: "I find that 126 head of cattle were in this pasture from April 16th to June 20th; that 295 head were there from April 16 to September 19, 1908; that 201 head were there from April 16 to October 17, 1908; that 18 head were not accounted for; that whole pasturage due, not including compensation for the missing cattle, amounts to $889.90, and interveners have paid $865.85, leaving an unpaid balance of $24.05. If compensation is allowed for the missing cattle, $32.40 should be added to this amount"-and concluded that, as $24.05 was still due defendant for pasturage, the same should be set off against the $130 due interveners for rounding up the cattle, and the balance, $105.95, paid them, and so recommended.

¶3 To this report the defendant, Roff, and said interveners excepted, and the same, together with the testimony, are preserved in the record by bill of exceptions, signed by the referee. After plaintiffs in error, including the receiver, had moved the court to confirm the report of the referee, the cause came on for hearing on said report and exceptions thereto, whereupon the court overrules Roff's exceptions, and, in effect, sustained the report of the referee, adjusting the priority of the liens of all concerned, save and except that of said interveners, as to which the court, in effect, sustained interveners' exceptions, which was unexcepted to, modified said report, which modification was unexcepted to, and found that defendant had breached his contract with interveners; that to the $889.90 due for pasturing the cattle found should be added $32.40 due for pasturing the missing cattle; that from the total, $922.30, should be deducted $865.85, the amount paid for pasturage, leaving $56.45 due therefor by interveners to defendant; that said $56.45 should be deducted from the $130 due interveners for rounding up their cattle, leaving $73.55, which should be added to $510, which the court found, from the testimony, to be the value of the 17 head of lost cattle at $30 per head, and so decreed, and overruled the motion of plaintiffs in error for judgment "non obstante," and entered judgment for defendant for $583.55, and made the same a first lien on the moneys in the hands of the receiver.

¶4 All concerned, except Roff and White Bros., interveners, defendants in error, bring the case here by transcript of the record, and assign for error: "First. The court erred in not entering judgment according to the findings of the referee, and in overruling motion for judgment ‘non obstante.' Second. The court erred in its findings allowing judgment for White Bros., because it was contrary to the evidence adduced. Third. The court erred in rendering judgment to take of the funds properly to be paid to the several mortgagees, and arising from the sale of the things mortgaged, to pay an alleged indebtedness due from Roff to White Bros., general creditors, or one who claims debt arising from a breach of contract of Roff, and not of the receiver."

¶5 For the reason that neither the motion to confirm the report of the referee nor the motion for judgment "non obstante" are made part of the record by bill of exceptions or case-made, we cannot consider the action of the court complained of in the first assignment of error. McCarthy v. Bentley, 16 Okl. 19, 83 Pac. 713, and cases there cited. And, for the reason that a motion for a new trial is necessary under section 318 of the Code of Civil Procedure to "review the decision of the court" on said report, a consideration of the remaining assignments, which would require an examination of the evidence, cannot be had, for the reason that no motion for a new trial is preserved in the record. Blevins v. Morledge et al., 5 Okl. 141, 47 Pac. 1068; Hill v. Fisher, 6 Kan. App. 375, 50 Pac. 1099; Harris, Adm'r, v. San Francisco, etc., Co., 41 Cal. 393; Frederick C. Hihn v. Henry W. Peck et al., 30 Cal. 281.

The motion to dismiss this proceeding is therefore sustained. All the Justices concur.