HARJO v. HALL

HARJO v. HALL
1938 OK 340
79 P.2d 586
183 Okla. 15
Case Number: 28050
Decided: 05/17/1938
Supreme Court of Oklahoma

HARJO et al.
v.
HALL et al.

Syllabus

¶0 1. DESCENT AND DISTRIBUTION--Burden of Proof on Party Asserting Title by Inheritance.
Where a party asserts title to real estate by inheritance, it is incumbent upon such claimant to produce proof to such right of inheritance.
2. MARRIAGE--Burden to Prove Lawful Marriage Between Deceased Wife and Alleged Former Husband Who Owned Land at His Death.
Where a party asserts title to real estate by inheritance from his deceased wife, who in turn inherited said property from a former husband. it is incumbent upon such claimant to produce proof of a lawful marriage between his wife and the alleged former husband.
3. SAME--Existence of Marriage as Issue Triable by Jury.
The issue of the existence of a lawful marriage, either by ceremony or by common law, is one of fact properly triable by a jury.
4. APPEAL AND ERROR--Conclusiveness of Verdict on Conflicting Evidence.
Where a cause of action is tried to a jury, and there is a conflict in the evidence, the verdict of the jury will not be disturbed on appeal.

Appeal from District Court, Hughes County; H. H. Edwards, Judge.

Action by Leona Harjo, now Givens, et al. against E. D. Hall et al. to establish title to real estate by inheritance arising from common-law marriage. Judgment for defendants, and plaintiffs appeal. Affirmed.

Ethel Hamilton, Cecil Hamilton, and Chas. N. Hamilton. for plaintiffs in error.
Anglin & Stevenson, for defendants in error.

BAYLESS, V. C. J.

¶1 Leona Harjo, now Givens, and Benjamin Harjo, a minor, brother and sister, brought an action in the district court of Hughes county against E. D. Hall et al. for the possession of, and to quiet title to, certain real estate. They were joined by their stepfather, who claimed to inherit from his wife, the alleged former wife of the alleged father of the children. Like the children, he stands or falls upon their evidence, The verdict of the jury was for defendants, and plaintiffs appeal.

¶2 Plaintiffs assert that they are the children of James Harjo, and Aggie Coachman Harjo, the issue of a commonlaw marriage between those two. The alleged husband and wife, are both dead. The land involved is the allotment of James Harjo, and defendant Hall's title is based upon conveyances from the brothers and sisters Of James Harjo. He denies the claims of plaintiffs and pleaded title by conveyance and by prescription.

¶3 A jury was impaneled. and much evidence was given and it is highly contradictory. The plaintiffs produced several witnesses who testified to facts which, if believed, were sufficient to show a common-law marriage between James Harjo and Aggie Coachman, his cousin. This would have been in August, 1914. Admittedly three children were born to Aggie Coachman, one of whom died in infancy and the other two being plaintiffs. The defendant Hall produced several witnesses who testified just as positively that no such marriage was contracted or existed.

¶4 This was an issue of fact properly triable by a jury. If no such marriage was contracted, then plaintiffs have no claim upon the estate of James Harjo. The sole basis of their claim is that they are the legitimate issue of a valid marriage.

¶5 Since the case was tried to a jury and evidence was introduced on behalf of the parties sufficient to more than justify a verdict in favor of either party, we cannot interfere with the verdict of the jury. our function as a reviewing court is at an end when we have examined the record and found evidence to support the verdict. We cannot weigh it to determine whether the verdict conforms to our notion of the weight thereof.

¶6 A single interrogatory reading:

"Was James Harjo and Aggie Harjo, nee Coachman, husband and wife on the date of the death of James Harjo on the 14th day of December, 1920?"

--was submitted to the jury. Complaint is made that it was confusing to the jury, since it made the issue of marriage depend upon the date of death of the husband rather than the date the marriage was contracted. We do not think so. The plaintiffs' contention was that such a marriage began in 1914 and existed at the death of Harjo. No issue existed as to whether the marriage was contracted and thereafter dissolved. The interrogatory could have been worded differently, but we do not believe that it confused the jury to the extent of prejudicing plaintiffs, No objection to the form of the interrogatory was made, and in addition the journal entry of judgment recites:

"It being agreed in open court by all parties that the only jury question to be determined in the case was the question of fact as to whether or not James Harjo, Creek, Roll No. 6576 and Aggie Coachman, Creek, Roll No. 5369, were husband and wife on the date of the death of James Harjo, Creek, Roll No. 6576, to wit, the 14th day of December, 1920, which question should be submitted to the jury upon special interrogatory."

¶7 Complaint is made of the giving of certain specified instructions. No. 3 is singled out and contrasted to No. 2, when No. 3 was not objected to, nor exception taken to it. No argument is made on these objections to the specific instructions, but only the most general allegations of error. Under such circumstances, we have held that this court will not examine the record in search of prejudicial errors not clearly pointed out in the brief, since it is the duty of counsel to support the assertions with argument and citation of authority where possible. See Ferguson v. Union National Bank, 23 Okla. 37, 99 P. 641.

¶8 Judgment affirmed.