Sawyer & Austin Lumber Co. v. Champlain Lumber Co.

1905 OK 112, 84 P. 1093, 16 Okla. 90, 1905 Okla. LEXIS 105

• Court: Supreme Court of Oklahoma
• Decided: September 7, 1905
• Status: Published

Opinion

Opinion of the court by

BueRORD, C. J.:

But two alleged errors are presented in the brief of plaintiff in error. It is first contended that the court erred in overruling the demurrer to the answer, for the reason that the petition was upon a verified account, and the answer not being verified was insufficient. Section 4312, Wilson’s Statutes 1903, sec. 114 civil code, provides:

“In all actions, allegations * * * of the correctness of any account duly verified by the affidavit of the party, his agent or attorney, shall be taken as true unless the denial of the same be verified by the affidavit of the party, his agent, or attorney.”

We have examined the petition carefully, and we fail to find any allegation of the correctness of the verified account, nor does the affiant in the verification state that the itemized account is true and correct. Both the petition and verification failed to bring the plaintiff within the rule contended for. There was no error in overruling the demurrer for another reason. The defendant in his answer admitted the correctness of the account sued on by plaintiff:, and set up by way of counter claim a demand for damages. This answer was not required to be verified. Where the correctness of a verified account is not questioned, but some affirmative defense is pleaded,- no verification to the answer is required. Johnson et al. v. Johnson, 24 Pac. 1098; Pattie v. Wilson, 25 Kan. 329; Washington v. Hobart, 17 Kan. 277.

The next contention is that the evidence is insufficient to support the finding on the cross petition, — that it does not show that the plaintiff ever entered into any contract to duplicate the defendant’s order for lumber, and hence no damages could be allowed for breach of such alleged agreement.

This question requires an examination of the evidence. The case purports to contain the evidence, but the record contains no recital or other statement that it contains all the evidence, introduced in the trial of the cause. There is a certificate of counsel that the case contains all the evidence. also a certificate of the stenographer that his transcript contains all the evidence, but neither of these certificates are authorized or recognized. The case itself must contain the positive averment by way of recital that it does contain all the evidence submitted or introduced on the trial of the cause, and in the absence of such recital this court will not review any question depending upon the facts for its determination. This question has been repeatedly decided. Frame v. Ryel, 14 Okla. 536; Board of Washita County v. Hubble, 8 Okla. 169; B. K. & S. W. Ry. Co. v. Grimes, 36 Kan. 241; Ryen v. Madden, 26 Pac. 680; Pelton v. Bauer, 35 Pac. 918; Eddy v. Weaver, 32 Kan. 540; Hill v. Bank, 42 Kan. 364.

We find no reversible error in the record. The judgment of the district court of Garfield county is affirmed, at the costs of the plaintiff in error.

Pancoast, J., who presided in the court below, not sitting; Burwell, J., who ruled on the demurrer, not sitting; all the other Justices concurring.