Dawson v. Kroning

HARDY, J. J. Kroning commenced this action against W. D. Dawson and another upon certain promissory notes. Answer was filed admitting the execution of the notes but pleading in general terms that there had been a failure of consideration and a release of the defendant Dawson. The answer pleads no facts upon which these conclusions were based. Motion for judgment on the pleadings was sustained October 6, 3913, and judgment rendered in favor of Kroning for the amount of the notes. No appeal was prosecuted from the judgment December 13, 1913, Dawson filed motion to vacate the judgment which was overruled, and this appeal is prosecuted from the last-named order. Several assignments of error are urged involving the action of the court in sustaining the motion for judgment and in rendering judgment; but inasmuch as no appeal was prosecuted therefrom, same are not involved in this proceeding and cannot be considered. Philip Carey Co. v. Vickers, 53 Okla. 569, 157 Pac. 299. While the motion to vacate the judgment urges as one of the grounds thereof that said case was regularly set for trial on the 16th day óf October and that the judgment was rendered before the day on which the ease was regularly set for trial, the case-made does not contain any evidence on this point, and we are unable to determine from the case-made when the cause had been set for trial, 'and in the absence of the evidence upon this point there is nothing presented for review by us. The journal entry of the judgment rendered by the court in sustaining the motion for judgment upon the pleading recites that at the hearing upon the motion both parties appeared by counsel and submitted arguments thereon and consented that the matter might be submitted to the court and judgment rendered upon the issues made by the pleadings. When counsel consented that the court might hear and determine the motion for judgment and render such judgment thereon as in his opinion was proper, this was a waiver of any objection they might have otherwise urged to the rendition of judgment before the case was set for trial, if in fact this was done. Eor these reasons the judgment is affirmed.