Nolan v. Clift

Opinion 'by JARMAN, C. This action was commenced in the district court of Garfield county by John Clift, defendant in error, plaintiff below, against John Nolan, plaintiff in error, defendant below, to recover for feed furnished and labor performed in taking care of a bunch of cattle from November 18, 1918, to January 22, 1919. The cause was submitted to a jury, who returned a verdict for the plaintiff for $1,079.50, on which judgment was rendered, and the defendant brings error. The first assignment of error urged by the defendant is that the amount of the verdict for which judgment was rendered is more than the amount sued for. The amount for which the plaintiff sought judgment in his petition is $1,048.80, with interest at six per cent, from January 22, 1919, the date the plaintiff alleges said amount became due. The plaintiff not only sought judgment for the amount of money claimed to be due, $1,048.80, but also for interest on said amount from the date it became due, and it is, therefore, readily apparent that the amount of the verdict is less than the total amount claimed, including the interest. The next assignment of error discussed by the defendant is that the verdict is not supported by the evidence, and was rendered through prejudice and passion. To consider this assignment, it is necessary to review and consider the entire evidence introduced in the case, and since the defendant has not complied with Rule 26 (87 Okla. xxiii, 165 Pac. ix) by abstracting the evidence in his brief, said assignment of error will not be considered. Collins v. Way, 88 Okla. 143, 211 Pac. 1038. The third and last assignment of error urged by the defendant is that the court ea*red in admitting certain evidence, offered by tlie plaintiff, which prejudiced the rights of -the defendant in the trial of the cause. We have carefully examined the evidence complained of in connection with the entire record, and we do not believe that the rights of the defendant were prejudiced thereby. Under 'the record, the jury would have been warranted in returning the verdict they did return, if the evidence complained of had been excluded. On this question, this court has laid down the followingo rule, which lias been consistently followed, to wit: “The improper admission or rejection of evidence, if not prejudicial to the party complaining is not ground for reversal.” Mullen v. Thaxton, 24 Okla. 643, 104 Pac. 359. The judgment of the trial court is affirmed. By the Oourt: It is so ordered.