Wilkerson v. Wasson

Opinion by MAXEY. C. It is practically conceded by counsel for plaintiff in error, that the judgment of the trial court on the first cause of action to remove cloud from title should be sustained under the decisions of this court,, but counsel for plaintiff in error contends that the judgment for $250 attorney’s fees on the second cause of action is erroneous, and that at least that part of the judgment of the trial court should be reversed. We think counsel for plaintiff in error is wrong in contending that the $250 damages allowed by the court was for attorney’s fees. There is nothing in the judgment of the court that justifies this contention. The judgment as contained in the journal entry is for $250 damages. It does not attempt to detail for what the damages are allowed. We think that counsel for plaintiff in error is misled by some desultory remarks made by the court at the close of the testimony, and the arguments of counsel which are set out in the statement of the case above. These remarks made by the court are not properly a part of the record in the ease, and are certainly’ not part of the judgment. They do not even assume the dignity of findings of facts and conclusions of law, but upon examination of the record they seem to be more in the nature of a conversation between the court and counsel. This court in the case of Rogers v. Hanris, 76 Okla. 215, 134 Pac. 459, had before it a question very-similar to the facts presented by this record, wherein the judge made -the following observations: “In announcing judgment the trial court delivered an oral opinion, which was tran-hvri' ed by the .reporter and wi limit objeción incorporated -in the case-made, from which it. appears the court concluded from the evidence that Chapman acted in good faith in purchasing Harris’ interest for the McMan Oil Company, and that this sale was a bona fide transaction without notice. He also concluded that Rogers wanted to" sell his interest, but was persuaded by Chapman not to do so, and subsequently purchased the Harris- interest. The evidence supports these conclusions. “The opinion of the trial court does not constitute findings of fact, as contemplated under section 5017 Rev. Laws 1910, and may not be considered as such, or to vary th]e judgment-of the count as contained in the journal entry (James, v. Coleman, 64 Okla. 99, 166 Pac. 210), but may be considered in determining the correctness of the conclusions on which the judgment was based. Expressions of the trial court in rendering judgment have been a nsidered repeatedly for that purpose. C., R. I. & P. R. Co. v. Warren. 63 Okla. 190, 163 Pac. 705; Hennessey Oil & Gas Co. v. Neely, 62 Okla. 101, 162 Pac. 214: Rison v. Harvis. 50 Okla. 764, 151 Pac. 584. In the case of James v. Williams, 31 Cal. 213. it ivas said: “‘The opinion of the judge nih'o tried the cause, stating the evidence o,r his analysis of it or some portion of either, coupled with the reasons for his rulings, is always valuable.’ ” These remarks made by the trial judge and copied in the ease-made by the stenographer are clearly no part of the judgment of the court. The court said that the plaintiff had *69 proven some ■ damages without attempting to enumerate what they were further than that he claimed ,$230 for attorney fees, and that he thought he would just allow them that and eliminate the other. As 'before stated, these remarks made by the court did not even reach the dignity of findings of facts by the court, but are merely desultory remarks made to counsel at the close of the ease. They cannot in any way affect the judgment of the court, which is far $250 damages. Counsel contends that no actionable damages were shown. We cannot agree to this assertion because the evidence of the plaintiff was that he lrad paid out certain items of expenses, hotel bills, and several days from his work at the farm and it appears to us from what the court said, that he was trying to figure up what damages it would allow and finally seized upon this $250 claimed as attorney’s fees as a fair estimate of the amount of the damages the plaintiff had sustained without any regard to the items that were to make it up, and in recording the judgment of the court, it simply gave judgment for $250 damages without any reference as to what the .items were that made up the amount. Counsel contends that there was no malice proved. We cannot agree with this proposition. The defendant does not even deny placing the affidavit of record, and it. is a rule of law well settled that where anything is done wrongfully, malice will be presumed. Here again counsel resorts to the remarks made by the court at the close of the trial where the court said: “I doubt whether there is any maliciousness, I think they had no right to put such notice as that on record.” When plaintiff proved that defendants placed that notice on record, and the court found for the plaintiff, it was hound to have found that there was malice in putting it there. The answer of the defendant shows malice. He admits that they put if there and that was a part, of the contract, but wholly failed to prove any such thing. It is clear from the whole case that: it was their purpose to extort from the plaintiff a one-third interest in the oil and gas or its value in money. In the case of Hopkins v. Drowne, 41 Atl. 567, the Supreme Court of Rhode Island held in an action for slander, express malice need not he proven, and in the body of the opinion, the court said that where malice must be proven, as a substantive fact, it was not necessary to prove it as an independent fact; that: malice is the purpose existing only in the mind, and is not ordinarily susceptible of proof “» a matter of fact. So that when it is shown that the placing of the instrument in. this ease was wrongful and injurious to plaintiff’s title, the presumption is that it was placed there ma iciously, and we think the court was too narrow in. its construction of the word malice in this case. The case of Collins v. Whitehead, 34 Fed. 121, is a case very similar to the one under consideration, and the court in passing on the motion, for new trial used the following language: ■‘The injury to plaintiff was real, however difficult the proof of it may he. He was compelled to bring suit to remove the cloud from his title, and for the time, his property was useless to him. It would be a reproach to the law to give only n'ominal damages in such a casé, and if anything substantial is to be allowed, it cannot be claimed that the verdict is excessive.” In this case Judge Brewer sat with Judge Hallett on the hearing of motion for new trial and made the following notation, to the opinion of Judge Hallett: ‘‘Brewer, J. I did not, sit in the trial of this case, but I heard with my brother, Hal-le1 t. the argument on the motion for new" trial. And while the question is a doubtful one, yet, I think substantial justice has been done, and the verdict ought to stand.” The case of Chesebro v. Powers et al., 44 N. W. 290 is a ease from the Supreme Court of Michigan. The second paragraph of the syllabus of this case reads as follows: “The fact that the plaintiff recovered taxable costs against defendants in an action to quiet title to the land is not a bar to the action, for defamation. If defendants acted maliciously, and under a claim which they knew to be false, plaintiff may recover for any reasonable outlay by him in removing the cloud from his title.” See, also, Mangum Electric Company v. Border et al., 101 Okla. 64, 222 Pac. 1002, the fifth paragraph of the syllabus of which is as follows: “ ‘Malice.’ in the law, is the intentional doing of a wrongful act without justification or excuse.” It is contended that the plaintiff cannot complain of irregularities of the trial judge unless he saved his exceptions and files a cross-appeal. This question was passed on by this court- in the ease of Muskogee Refining Company v. Waters-Pierce Oil Co. et al., 89 Okla. 279, 215 Pac. 766. The first paragraph of the syllabus of the case is as follows : “The defendant in error on, appeal may attack erroneous findings of the trial court made in an equity ease, if exceptions were Saved to said findings, in order to sustain his judgment, without filing a cross-petition in error.” *70 We think substantial justice was done by the trial court, and that there is no reversible error in the record, and the judgment should be, in all things, affirmed. By the Court: It is so ordered.