error. Arthur Miller, of Kansas City, Mo., and E. [made a mistake, or misunderstood S. Bessey, of Oklahoma City, for plaintiff in or the result of their finding, or what items entered into the verdic Smith & McGhee, of Miami, for defendant they arrived at the amount. Ji in error. only be heard in support of their KANE, J. This was an action for dam-peached. ages for personal injuries, commenced by The following are a few of the the defendant in error, plaintiff below, this jurisdiction, cited by coun against the plaintiff in error, defendant being the proposition that the affi low. Hereafter, for convenience, the parties will be called "plaintiff" and "defendant" respectively, as they appeared in the trial court. Upon trial to a jury there was a verdict for the plaintiff, upon which judgment was duly entered, to reverse which this proceeding in error was commenced. rors are inadmissible for the p [1] This is a companion case to Oklahoma, Kansas & Missouri Railway Co. v. A. P. Wilson, No. 10307, 202 Pac. 275, in which an opinion was this day handed down, affirming the judgment of the trial court. As the injuries complained of in both cases grew out of the same accident, it will not be necessary to restate the facts, and as, with one Oregon-Washington & N exception, the assignments of error in the instant case are precisely the same as in the Wilson Case, supra, it will not be necessary to reconsider the grounds for reversal urged which are common to both cases. The additional assignment of error presented by this record is stated by counsel in their brief as follows: "That the verdict in this case was a quotient verdict, and should have been set aside." [2] As counsel principally rely upon the affidavits of two of the jurors who participated in the trial to impeach the verdict they do not seem to urge this assignment with the assurance which it is said is born of conviction. In their brief they say: Pac. 470, Ann. Cas. 19 "We are well aware that this court has [3] While the held that affidavits of jurors will not be heard to impeach the verdict, but in the last two fered for the cases, so far as we have been able to find, verdict was a three of the justices dissented. Egan v. First failed to show Natl. Bank of Tulsa, 169 Pac. 621, L. R. A. in advance to 1918C, 145; Baker v. Dorsson, 169 Pac. 1071." sis. It is fa Counsel present this question again, they say in their brief, "in hope that the court may again overrule itself and return to the doctrine as expressed by Justice Brewer in Mattox v. U. S., 146 U. S. 140, 13 Sup. Ct. 50, 36 L. Ed. 917, and Bank v. Ross, 52 Okl. 642, 152 Pac. 1113." will not be was no a verdict f The court, we fear, is so irretrievably committed to the doctrine assailed that it cannot depart from it at this late date. For th There is a long and unbroken line of cases to the effect that, upon grounds of public policy, jurors will not be heard by affidavit, deposition, or other sworn statement to impeach or explain their verdict, or show on what grounds it was rendered, or that they homa, I HAI er : the 118 88 required ory upon Bert may be reverse the prayer of the rt, Hughes Coun e. ets and Indexes of the dgment of dict of the t weigh the vidence reajudgment of l not be dis ence supporting ned entire mort e evidence, we find ly tending to suprial court. Judgment against sumption of indebted ve. aed, and held, that the court is not excessive. perior Court, Muskogee elson, Judge. T. Gaddy against Gertie oyle, and others, to recover oreclose a mortgage, in which swered and cross-petitioned nicker was made a party dedgment in favor of Gertie Doyle Doyle was rendered against W. and he appeals. Affirmed. attimore, of Muskogee, for plaintiff S. Ramsey, of Muskogee, Edgar A. les, of Tulsa, and Malcolm E. Rosser illard Martin, both of Muskogee, for dants in error. ILLER, J. This action was commenced the superior court of Muskogee county y T. T. Gaddy against Gertie Doyle, Eddie Doyle, Haskell National Bank, a corporation of Haskell, Okl., George C. Probst, James B. Morrison, and D. F. Hinckley, to recover on a certain principal note of $600 and interest coupons thereto attached, and to foreclose a mortgage given to secure the payment of said note and coupons. Plaintiff further sought to recover in said action the sum of $72 on there- a certain installment note representing a part of the interest on the original loan, and this installment note was. secured by a second mortgage. The notes and mortgages were executed by defendants Gertie Doyle ON, MILL- and Eddie Doyle, in favor of the Waddell Investment Company. The mortgages as or as ded to with di ic and KEY-NUMBER in all Key-Numbered Digests and Indexes and plaintiff appeals. Reversed and re- is recited that it was agreed to pay the plainmanded, with directions. Brook & Brook, of Muskogee, for plaintiff in error. C. E. McLees, Bower Broaddus, and C. A. Ambrister, all of Muskogee, for defendants in error. JOHNSON, J. This appeal is by the transcript of the record, which discloses that the plaintiff, R. B. Herndon Real Estate Company, on March 31, 1919, commenced an action against Joe Depew and Mrs. Joe Depew, defendants, in the city court of Muskogee, to recover for commissions alleged to be due the plaintiff on account of sale made by the plaintiff of certain property belonging to the defendant under contract of the defendants for such commission. The defendants answered by general denial. Said cause was tried to said court on the 23d day of September, 1919, and resulted in a judgment in favor of the defendants for costs. The plaintiff filed a timely motion for new trial, which was by the court overruled on the 26th day of September, 1919, and upon said day the plaintiff filed an appeal bond, which was approved by said court, and there after a transcript of the proceedings in said court was filed in the superior court of Muskogee county, and said cause came on for trial in said superior court on the 6th day of March, 1920, at which time the defendants presented their motion, which is as follows: "Come now the defendants and move the court to dismiss the appeal in the above-entitled cause for the reason that said appeal is not taken in the manner and form as provided by the laws of the state of Oklahoma regulating appeals in the city court in amounts up to the sum of $100." And after the same was argued the following proceedings were had thereon: "By the Court: I believe I will sustain the motion. "By Mr. Borrk: Plaintiff asks leave to amend. tiffs the sum of $100. The said paragraph did state that defendants breached said contract and after the breach of said contract plaintiff asked judgment for the sum of $125. (c) The court committed error in dismissing plaintiff's appeal, and not permitting plaintiff to have a trial de novo, since the issue was tried in the city court, where plaintiff's petition declared upon an amount calling for $125, which was upon a commission basis of 5 per cent. on the contract sued for, and not for any specific amount calling for $100 or less. "(3) Said court committed error in overruling plaintiff in error's motion for a new trial." A careful examination of the record dis closes that this appeal is controlled in all respects by the decision of this court in the Case of Peterman et al. v. Chapman et al. (Okl.) 200 Pac. 776, where in the syllabus this court stated as follows: "That part of section 16, c. 113, House Bill No. 276, Session Laws 1917, which attempts to limit the right of a person to appeal from judgments of courts not of record in civil cases where the amount involved in the appeal, exclusive of interest and costs, does not of appeal guaranteed by section 19, art. 2, of exceed $100, violates the constitutional right the Bill of Rights, and is void." For the reasons stated in said opinion, and upon the authorities therein cited, the judgment of the trial court in the instant case is reversed, and the cause remanded, with directions to overrule the defendant's motion to dismiss and take such further proceedings therein, not inconsistent with the holdings of this court. HARRISON, C. J., and KANE, MILLER, and KENNAMER, JJ., concur. (84 Okl. 58) DIXON et al. v. DUNCAN. (No. 10318.) (Supreme Court of Oklahoma. Nov. 29, 1921.) (Syllabus by the Court.) "By the Court: Leave denied. (Plaintiff excepts.) Motion to dismiss sustained. (Plain- Appeal and error 773(5)-Judgment may be tiff excepts.)" From the judgment thus rendered by the court the plaintiffs have regularly commenced this proceeding in error to reverse such judgment, assigning as error: "(1) The judgment of the court dismissing plaintiff's appeal was not according to law. reversed where defendant in error fails to file brief. In an action appealed to this court where the plaintiff in error filed brief showing service upon the defendant in error and no brief is filed by the defendant in error and no reason given showing why the defendant in error has not filed brief, and the brief of the plaintiff in error reasonably supports his assignments of error, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained; but this court will reverse the judgment in accordance with the prayer of the petition in error. "(2) The judgment of the court in dismissing plaintiff's appeal was erroneous in that: (a) The petition of plaintiff filed in the city court in and for Muskogee county recited facts asking for judgment on a commission basis for 5 per cent. on $2,500 or $125; (b) further, the petition filed by plaintiff did not ask for and seek to recover on contract, as mentioned in Appeal from District Court, Hughes Coun. paragraph 4 of the petition, wherein the fact ty; George C. Crump, Judge. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (202 P.) Action by Minnie Duncan against R. J. Dixon and another to quiet title. Judgment for plaintiff, and defendants appeal. Reversed and remanded, with directions to grant a new trial. (84 Okl. 62) ANICKER v. DOYLE et al. (No. 10386.) (Supreme Court of Oklahoma. Nov. 29, 1921.) (Syllabus by the Court.) A. A. Hatch, of Tulsa, for plaintiffs in er- I. Appeal and error 1008 (2)—Judgment of ror. J. L. Skinner, of Holdenville, for defendant in error. KENNAMER, J. This action was instituted in the district court of Hughes county by Minnie Duncan, plaintiff, against R. J. Dixon, as defendant, to quiet title in the plaintiff to 40 acres of land described in her petition. The defendant Dixon filed answer and cross-petition. Charley Wade, by order of the court, was made a party plaintiff, and on the 18th day of January, 1918, the cause was tried to the court, and after the introduction of the evidence the cause was continued until the 28th day of January, 1918, when the court entered judgment in favor of the plaintiff, Minnie Duncan, quieting her title in the lands and decreeing the defendant Duncan a mortgage lien upon the property. Motion for a new trial was filed and overruled, and the defendant Duncan prosecutes this appeal to reverse the judgment of the trial court. On an examination of the record in this cause we find that the plaintiffs in error served brief upon counsel of record on June 7, 1919. On July 1, 1919, the defendant in error was granted 30 days' extension of time to file and serve brief upon the plaintiffs in error. That no brief has been filed on behalf of the defendant in error or reason presented to the court why the same has not been filed and served in accordance with rule No. 7 of this court. 47 Okl. vi.1 In such a situation, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained; but, where the brief filed on behalf of the plaintiff in error reasonably supports his assignments of error, this court will reverse the judgment in accordance with the prayer of the petition in error. Security Insurance Co. v. Droke, 40 Okl. 116, 136 Pac. 430; Frost v. Haley, 63 Okl. 19, 161 Pac. 1174. We have carefully examined the brief of the plaintiffs in error in this cause, and the same appears to reasonably sustain the assignments of error. court trying law and fact in action where trial by jury authorized will not be disturbed where supported by evidence. When the court tries both questions of law and fact in an action wherein the parties are entitled to a trial by jury, the judgment of the court stands in lieu of the verdict of the jury, on appeal this court will not weigh the sonably tending to support the judgment of evidence, but if there is any evidence reathe trial court its judgment will not be disturbed. 2. Mortgages 280 (5)-Evidence supporting finding that purchaser assumed entire mortgage indebtedness. On an examination of the evidence, we find there is evidence reasonably tending to support the judgment of the trial court. 3. Mortgages 292 (8) Judgment against purchaser based on assumption of indebtedness held not excessive. The record examined, and held, that the judgment of the trial court is not excessive. Appeal from Superior Court, Muskogee County; Guy F. Nelson, Judge. Action by T. T. Gaddy against Gertie Doyle, Eddie Doyle, and others, to recover on a note and foreclose a mortgage, in which defendants answered and cross-petitioned and W. J. Anicker was made a party defendant. Judgment in favor of Gertie Doyle and Eddie Doyle was rendered against W. J. Anicker, and he appeals. Affirmed. S. H. Lattimore, of Muskogee, for plaintiff in error. Geo. S. Ramsey, of Muskogee, Edgar A. de Meules, of Tulsa, and Malcolm E. Rosser and Villard Martin, both of Muskogee, for defendants in error. MILLER, J. This action was commenced in the superior court of Muskogee county by T. T. Gaddy against Gertie Doyle, Eddie Doyle, Haskell National Bank, a corporation of Haskell, Okl., George C. Probst, James B. Morrison, and D. F. Hinckley, to recover on a certain principal note of $600 and interest coupons thereto attached, and to foreclose a mortgage given to secure the payment of said note and coupons. Plaintiff further sought to recover in said action the sum of $72 on a certain installment note representing a part of the interest on the original loan, and this installment note was. secured by a second mortgage. The notes and mortgages were executed by defendants Gertie Doyle HARRISON, C. J., and JOHNSON, MILL- and Eddie Doyle, in favor of the Waddell ER, and ELTING, JJ., concur. Investment Company. The mortgages as or The judgment of the trial court is therefore reversed, and the cause is remanded to the district court of Hughes county, with directions to grant a new trial. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 1165 Pac. vii. the amount of principal, interest and attorney fees hereinbefore found due from said defendants Gertie Doyle and Eddie Doyle to $307.45, principal and interest to this date, the plaintiff, T. T. Gaddy, to wit, the sum of which said judgment bears interest at the rate of 10 per cent. per annum, together with $110 attorney's fees as provided in said mort iginally executed covered 60 acres of land. [ defendant W. J. Anicker an amount equal to In this proceeding the plaintiff was only asking for a foreclosure as against 20 acres described as the west half of the southwest quarter of the southwest quarter of section 3, township 14, range 16, in Muskogee county The other 40 acres had been sold to plaintiff in error W. J. Anicker, subsequent to the execution of the notes and mortgages above referred to. This 40 acres was described as the southwest quarter of the southwest quar-judged by the court that the defendants Gertie ter of said section 3. gages. "It is therefore considered, ordered and adDoyle and Eddie Doyle have and recover judgThe defendants Gertie Doyle and Eddie ment against the defendant W. J. Anicker for Doyle filed an answer and cross-petition in the sum of $417.45, being principal, interest and attorney fees included in the judgment recovwhich they alleged the sale of the 40 acres ered by plaintiff, T. T. Gaddy, against defendto W. J. Anicker and that he assumed the en-ants Gertie Doyle and Eddie Doyle, and costs tire indebtedness, and they filed a motion of suit herein expended, and that this judgment asking that he be made a party defendant. constitute a lien upon the southwest quarter By order of the court W. J. Anicker was of the southwest quarter of section 3, townmade a party defendant and appeared and ship 14 north, range 16 east, Muskogee county, filed his separate answer to the answer and Okl.; provided that if the said W. J. Anicker cross-petition of the Doyles. shall satisfy the judgment herein rendered in favor of plaintiff, T. T. Gaddy, same shall operate as a satisfaction and release of the judgment against said Anicker in favor of said Gertie and Eddie Doyle. "Guy F. Nelson, A jury was waived and the case was tried to the court. Judgment was rendered in favor of the Doyles and against W. J. Anicker. Anicker perfected this appeal and appears here as plaintiff in error and the Doyles are defendants in error here. The only controversy in this court is between Anicker and the Doyles. That is whether or not Anicker was to pay the entire indebtedness represented by the notes and secured by the two mortgages above referred to, or whether he was to pay only two-thirds of that indebtedness. It will not be necessary to even comment on the issues raised by the plaintiff's petition and the answer of the other defendants, as the correctness of the rulings, findings, and judgment on such issues are not called in question by this appeal. That part of the findings and judgment of the trial court called in question by this appeal reads as follows: "Judge of the Superior Court." The plaintiff in error makes four assignments of error and then discusses them under two subjects. First, the judgment rendered by the court is contrary to and not sustained by the evidence. The facts are as follows: The Doyles borrowed $600 from the Waddell Investment Company. This indebtedness was evidenced by a note bearing date of February 14, 1916, for $600 due February 1, 1923. The time the loan was to run was seven years lacking approximately one-half month. The interest was 10 per cent. 6 per cent. represented by the coupons attached to the principal note. These interest coupons were due on the 1st day of February of each "The court further finds the issues in favor year beginning with 1917, and the interest of the defendants Gertie Doyle and Eddie Doyle at 6 per cent. amounted to $36. This was upon their answer and cross-petition against equal to $3 per month, but the first interest the defendant W. J. Anicker; that as a part of coupon was for $34.50, showing that the the purchase price of the southwest quarter mortgage company had deducted $1.50 for of the southwest quarter of section 3, town-interest it was not entitled to from February ship 14 north, range 16 east, Muskogee coun- 1, 1916, to February 14, 1916. The remainder ty, Okl., the defendant W. J. Anicker agreed to of the 10 per cent. interest agreed upon pay and discharge the two mortgages executed by the defendants Gertie Doyle and Eddie amounting to 4 per cent. was evidenced by Doyle in favor of the Waddell Investment Com- the installment note of $167. These installpany and assigned to the plaintiff, T. T. Gad-ments matured on the 1st day of February of dy, both of which said mortgages are foreclosed by the judgment in favor of said plaintiff and against the defendants herein; that the defendant W. J. Anicker paid plaintiff a portion of the amounts due on each of said mortgages in consideration of having plaintiff release from the lien of both of said mortgages the property last above described; that the defendant W. J. Anicker has failed and refused to pay and discharge the balance due on each of said mortgages; that the defendants Gertie Doyle and Eddie Doyle should recover against the each year beginning with 1917. Each installment was for $24, except the first one, which was for $23. This was equivalent to $2 per month, but again the Waddell Investment Company had deducted $1 from the first installment, making it $23. The $1 so deducted was what the interest would have amounted to at 4 per cent. for the first half of the month of February, during which time the Doyles had not had the use of the money. For all intents and purposes these two mort |