Bohart v. Mathews , 29 Okla. 315 ( 1911 )

This proceeding in error is to review a judgment in the lower court wherein the plaintiff in error, as plaintiff, sued the defendant in error, as defendant, upon two promissory notes made and delivered by the defendant to plaintiff. Answer was filed admitting the execution of the notes, but averring fraud and misrepresentation in obtaining same. A reply was filed thereto and a trial had before the court without the intervention of a jury. A general finding was made in favor of the defendant and judgment rendered thereon.

The plaintiff in error insists that he was entitled (1) to judgment on the pleadings, and (2) that there was not sufficient evidence to sustain the judgment.

1. As to the first proposition, neither was any motion made for judgment on the pleadings nor any objection made to the introduction of evidence by the defendant on the ground that the answer did not state facts sufficient to constitute a defense. The plaintiff in error is therefore not permitted to raise that question on review in this court. Cobb v. Wm.Kenefick Co., 23 Okla. 440, 100 P. 546; Wey et al. v. CityBank of Hobart et al., ante, p. 313, 116 P. 943; Kaufman v.Boismier et al., 25 Okla. 252, 105 P. 326.

2. As to whether the evidence sustained the judgment, we are not prepared to say that there is no conflict in the evidence. It has time and again been held by this court that:

"Where a case is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support its findings, such findings will not be disturbed on the weight of the evidence. (a) Where the testimony is partly oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding and is conclusive upon this court upon all doubtful and disputed questions of fact." (McCann v. McCann,24 Okla. 264, 103 P. 694; Alcorn v. Dennis, 25 Okla. 135,105 P. 1012; Bretch Bros. v. Winston Son, 28 Okla. 625,115 P. 795; Robinson v. Roberts, 20 Okla. 787, 95 P. 246.)

It follows that the judgment of the lower court must be affirmed.

All the Justices concur.