Byrd v. Hammett

WILLIAMS, J. It is insisted, by counsel for the defendants in error that, as the plaintiff in error failed to save any exceptions to the order of the court confirming the report of the master, this court should not review the action of the trial judge in confirming such report. In Freeman v. Eldridge, 26 Okla. 601, 110 Pac. 1057, this court said: “This action was instituted in the district court of Oklahoma county, territory of Oklahoma, on the 4th day of April, 1905, and was pending, and undetermined, at the time of the admission of the state. This section of the Schedule was construed by the United States Circuit Court of Appeals for the Eighth Circuit on May 11, 1909, in St. L. & S. F. R. Co. v. Cundieff, 171 Fed. 319, wherein it is said: “ ‘Construing all of these provisions together, we are of opinion that they do not change, and were not intended to change, the method of procedure in cases pending in the courts of Indian Territory and of the territory of Oklahoma, but that the civil cases pending in the Indian Territory should, after statehood, continue under the law in force in the Indian Territory, and under that law no reply was required prior to statehood. We do not think that the provision of the Constitution (sec. 2, Schedule to the Const.) relied upon by the railroad company so changes the situation as to make a reply necessary.’ ” *652 In Blakemore v. Johnson, 24 Okla. 544, 103 Pac. 554, this court said: “Upon this state of the evidence, the master made his findings. The legal presumption, where the evidence is conflicting, is that'the findings of the master axe correct, and his report will not be set aside, unless it appeal’s with ¡reasonable clearness that he has fallen into a mistake of fact. Guarantee Gold Bond Loan & Savings Co. v. Edwards et al., 164 Fed. 809, 90 C. C. A. 585. See, also, Horn et ux. v. Gibson, 24 Okla. 481, 103 Pac. 563. In the case at bar, the trial court, over the objection of the defendants in error, proceeded, at the request of the plaintiff in error, to make special findings of fact and conclusions of law. The attorneys for the plaintiff in error evidently proceeded upon the theory that the procedure existing under the state government, as continued from the territory of Oklahoma, applied, and not that of the Indian Territory in force at the time of the erection of the state. For the purpose of disposing of this case, it is not essential to determine whether, as to pending cases in the Indian Territory at the time of the admission of the state, the Oklahoma Territory procedure, as continued in force by section 2 of the Schedule, applied, except where a substantial right was affected by change of procedure as existed in the Indian Territory; for, under the Oklahoma Territory practice, where a ease is tried by a court without a jury and special findings of fact are made, based upon oral testimony, such findings are conclusive upon any disputed and doubtful questions of fact, and on appeal sucli finding’ will not be disturbed unless there is such a lack of evidence that it can bé said as a matter of law that the finding is erroneous. Seward v. Casler et al., 24 Okla. 275, 103 Pac. 740. The findings of fact by a referee have the same force and effect of a special verdict of a jury. Lee v.Haizlip, 22 Okla. 393; Shannon v. Petherbridge et al., 17 Okla. 507. Under the same practice, when a .case has been referred to the referee and his findings of fact have been confirmd by the trial court, the same will not be disturbed on appeal when there is *653 evidence in tbe record reasonably tending to support the same Seay v. Ellison et al., 25 Okla. 710, 107 Pac. 656. If you determine this ease under the Oklahoma rule, whether on the report of the referee or on the special findings' as made by the trial court, the evidence as contained in the record sufficiently supports the same. If under the Indian Territory rule, it is immaterial whether it be under report as made by the master and confirmed by the court or the findings of fact as made by the trial court; for, in either event, the report of the master, as confirmed by the court, or the special findings as made by the court will not be set aside on appeal unless it is reasonably clear that the preponderance of the evidence is against the report or finding. We have carefully searched this record, and it does not so appear. The judgment of the trial court is, accordingly,' affirmed. All the Justices concur.