Alcorn v. Dennis , 25 Okla. 135 ( 1909 )

1. The defendant in error, as plaintiff, declared in two counts. The first was on a promissory note wherein it was alleged that the interest was to be paid semiannually. The purported copy of such note attached to the petition as an exhibit did not contain such clause, and after the trial had been begun, and objection was made by the plaintiffs in error (defendants below) to the introduction of the original note on account of a variance, the plaintiff (defendant in error here) was permitted to amend.

To permit amendments when not changing the cause of action rests within the sound discretion of the trial court and will not be disturbed on appeal unless it affirmatively appears that its exercise has been abused to the prejudice of the complaining party. Swope v. Burnham, 6 Okla. 736, 52 P. 924;Tecumseh State Bank v. Maddox, 4 Okla. 583, 46 P. 563; ArmourPacking Co. v. Orrick, 4 Okla. 661, 46 P. 573; Church v. A.,T. S. F. R. Co., 1 Okla. 44, 29 P. 530; El Reno ElectricLight Telephone Co. v. Jennison, 5 Okla. 759, 50 P. 144;Lookabaugh v. La Vance, 6 Okla. 358, 49 P. 65; Limerick v.Lee, 17 Okla. 165, 87 P. 859; Piper v. Choctaw NorthernTownsite Improvement Co., 16 Okla. 436, 85 P. 965;Lookabaugh v. Bowmaker, 21 Okla. 489, 96 P. 651; Mulhall v.Mulhall, 3 Okla. 304, 41 P. 109; section 4343 (c. 66, art. 8, § 145) Wilson's Rev. Ann. St. 1903; Rogers v. Hodgson,46 Kan. 276, 26 P. 732; Teberg v. Swenson, 32 Kan. 224, 4 P. 83.

2. The plaintiffs in error not having asked permission to withdraw their waiver as to trial by jury, but having proceeded under the original waiver after the amendment had been permitted, will not be heard to complain for the first time in their motion for new tral that they were thereby deprived of the right of trial by jury. However, there are authorities that hold that, when a jury has been waived as to the trial of a cause, such waiver applies to all issues not only then existing, but also to those raised by subsequent pleadings.Thompson v. King, 173 Mass. 439, 53 N.E. 910; Dennie v.Williams, 135 Miss. 28; Lanahan v. Heaver, 77 Md. 605; 26 A. 866, 20 L. R. A. 756; Tracy v. Falvey, 102 App. Div. 585, 92 N Y Supp 625; Collins v. Young, 118 N.C. 265, 23 S.E. 1005;Keystone Driller Co. v. Worth, 117 N.C. 515, 23 S.E. 427; Perryv. Tupper, 77 N.C. 413; Hauser v. Metzger, 1 Cin. R. (Ohio) 164; Ferrea v. Chabot, 121 Cal. 233, 53 P. 689, 1092;Hartford Ins. Co. v. Redding, 47 Fla. 228, 37 So. 62, 67 L. R. A. 518, 110 Am. St. Rep. 118; Wittenberg v. Onsgard,78 Minn. 342, 81 N.W. 14, 47 L. R. A. 141.

3. All the evidence in this case was parol. As to whether or not the note was altered after it was executed, there was a conflict. The general and special finding of the trial court against the plaintiffs in error on that question is therefore conclusive here. McCann v. McCann, 24 Okla. 264, 103 P. 694;Seward v. Casler et al., 24 Okla. 275, 103 P. 740.

The judgment of the lower court is affirmed.

All the Justices concur.