Opinion
No. 28541.
February 14, 1939. Rehearing Denied March 21, 1939.
(Syllabus.)
1. Parties — Defect of Parties — How Question Raised — Waiver of Objection.
Objection that an action is not being prosecuted by the real party in interest should be raised by demurrer where the pleading discloses such fact, and by answer where it does not, if such condition is known to the party entitled to object, and if not so taken under conditions above set forth, it will be deemed to have been waived.
2. Limitation of Actions — Defendant's Demurrer to Evidence Properly Overruled Where Payment on Account by Him Shown Tolling Bar of Statute.
When the uncontradicted evidence of a plaintiff shows payment to have been made on an account by defendant under circumstances sufficient to toll the bar of the statute of limitations, it is not error to overrule a demurrer to the evidence of the plaintiff.
3. Appeal and Error — Sufficiency of Evidence in Jury-Waived Case.
When a law action is tried to the court without the intervention of a jury, the judgment of the court must be given the same force and effect as the verdict of a properly instructed jury.
Appeal from District Court, Kingfisher County; O.C. Wybrant, Judge.
Action by Enid Clinic and Dr. D.S. Harris against E.O. Shick to recover an alleged balance due on an account. Plaintiffs had judgment, and defendant appeals. Affirmed.
T.R. Blaine, for plaintiff in error.
M.F. Priebe and Milton W. Priebe, for defendants in error.
This action originated in a justice court of Kingfisher county, where the defendants in error, hereafter referred to as plaintiffs, sought to recover an alleged balance due on an account from the plaintiff in error, hereafter referred to as defendant. The defendant by demurrer and answer challenged the sufficiency of the bill of particulars to state a cause of action and pleaded in bar the statute of limitations. Trial in the justice court resulted in a judgment in favor of plaintiffs, and their recovery was assessed at the sum of $100. The defendant appealed the cause to the district court of said county, where it was tried de novo without the intervention of a jury. The defendant demurred to the evidence of the plaintiffs on the ground that they were not the real parties in interest; when this was overruled, he stood on his demurrer and declined to offer any evidence. The trial court thereupon rendered judgment in favor of the plaintiffs for the sum of $174, with interest thereon at the rate of 6 per cent. per annum from November 9, 1937. This appeal is from the judgment so rendered and the order which overruled and denied defendant's motion for a new trial.
The defendant assigns twelve specifications of error, which he presents under two propositions, which, in substance, are: First, the action was not prosecuted by the real parties in interest; second, the action was barred by the statute of limitations. In the case of Okmulgee Producing Refining Co. v. Brown, 109 Okla. 215, 235 P. 546. this court said:
"Whilst every action must be prosecuted in the name of the real party in interest, that question constitutes new matter and should be raised by answer when such defect does not appear on the face of the pleadings."
See, also, Pomeroy's Code Remedies, par. 587.
The bill of particulars of the plaintiff was sufficient to apprise the defendant as to whether the plaintiffs were the real parties in interest, but, notwithstanding this fact, the defendant did not attempt to raise the question by either demurrer or answer. Under such circumstances the defendant must be deemed to have waived the objection. Mainard v. Fowler, 171 Okla. 582, 42 P.2d 878; Culbertson v. Mann, 30 Okla. 249, 120 P. 918; Harrah State Bank v. School Dist. No. 70, Oklahoma County, 47 Okla. 593, 149 P. 1190. We therefore hold that the objection that plaintiffs were not the real parties in interest, if it were otherwise tenable, came too late.
The remaining contention of the defendant, to the effect that his plea of the statute of limitations in bar should have been sustained, is likewise untenable. The evidence of the plaintiffs, standing uncontradicted, was sufficient to establish the fact that the defendant had made a partial payment upon the account which had been credited thereon under circumstances which warranted the clear inference that the defendant then recognized the debt as an existing liability and made manifest his intention to pay it. This, if done, was sufficient to toll the statute. Berry v. Oklahoma State Bank, 50 Okla. 484, 151 P. 210; First State Bank v. Lucas, 168 Okla. 406, 33 P.2d 622. When the defendant demurred to the evidence of the plaintiff he thereby admitted all of the facts which such evidence tended to establish and all reasonable inferences to be drawn therefrom. Oilton State Bank v. Ross, 108 Okla. 24, 234 P. 567; D'Yarmett v. Cobe, 51 Okla. 113, 151 P. 589. Since the action was one at law tried to the court without the intervention of a jury, the judgment of the court must be given the same force and effect as the verdict of a properly instructed jury, and since such judgment is reasonably supported by competent evidence in the record, it should not be disturbed. McConkey v. Brittain, 181 Okla. 53, 72 P.2d 348; Sutherland v. Lambard-Hart Loan Co., 179 Okla. 486, 66 P.2d 523. The record presents no reversible error.
Judgment affirmed.
BAYLESS, C. J., and RILEY, OSBORN, GIBSON, and DANNER, JJ., concur.