This action was instituted in the district court of Custer county by Albert Gilbert and Ella Gilbert, hereinafter referred to as plaintiffs, against G.G. Fast, hereinafter referred to as defendant, as an action to cancel a deed on the ground of forgery. When the cause came on for trial the issues of fact were submitted to a jury and a verdict was returned in favor of plaintiffs. Thereafter the trial court entered judgment in favor of plaintiffs, and defendant has appealed.
There are nine assignments of error presented in the petition in error but only one of these assignments of error is presented or argued in the briefs. The others will be treated as abandoned. Belcher v. Spohn, 170 Okla. 139, 39 P.2d 87; McKee v. Producers Refiners Corporation, 170 Okla. 559,41 P.2d 466.
The only assignment of error submitted for our consideration is the failure of the trial court to grant a new trial on the ground of misconduct on the part of counsel for the prevailing party. The jury was impaneled on Saturday, but the taking of evidence was not begun until the following Monday. In the meantime, on Sunday afternoon, the attorney for plaintiff went to the home of one of the jurors, Mr. Freeman, and asked him if he knew whether another juror, Mr. Bartlett, was prejudiced against said attorney. The juror, Freeman, did not know, and the attorney requested that he learn whether Bartlett was prejudiced against him personally and subsequently the juror, Freeman, did ask Juror Bartlett whether he was prejudiced against plaintiff's attorney, and was told that he was not prejudiced. It is not contended that when the attorney visited the home of the juror any discussion was had relating to the merits of the case which the juror had been impaneled to try. As we view it, it is not necessary to weigh the motives nor determine the purpose of the visit of the plaintiffs' attorney to the juror during the time the cause was being tried. It is sufficient to say that regardless of the motives or purpose of said attorney his conduct in seeking out the juror and entering into such discussion was improper. The question presented is whether or not such conduct on the part of plaintiffs' attorney justifies a reversal of this case.
This is an equitable proceeding and in cases of equitable cognizance, while the trial judge may call in a jury or consent to one, for the purpose of advising him upon questions of fact, he may adopt or reject their conclusions as he sees fit, and the whole matter must eventually be left to him to determine. It is not only the right but the duty of the court to determine all questions of fact independent of the finding of the jury. Mid-Continent Life Ins. Co. v. Sharrock, 162 Okla. 127,20 P.2d 154; Teachers Conservative Inv. Ass'n v. England,115 Okla. 298, 243 P. 137; Crump v. Lanham, 67 Okla. 33, 168 P. 43; Kentucky Bank Trust Co. v. Prichett, 44 Okla. 87, 143 P. 338.
In compliance with the duty cast upon him in a proceeding of this nature, the trial court entered his own findings of fact, which were in favor of plaintiffs and against the defendant, and thereafter heard the evidence relating to the alleged misconduct of counsel, and after due consideration overruled the motion for new trial predicated in part on said misconduct. In this court plaintiff in error seeks the reversal solely on the ground of said misconduct. The question of whether the judgment of the trial court is against the clear weight of the evidence is not raised.
In this case we have carefully reviewed the evidence, and had the verdict of the jury, or the judgment of the court, been otherwise than rendered herein, on review we would be compelled to reverse the same as being contrary to the clear weight of the evidence.
The trial court made a very thorough investigation of the said misconduct on the hearing of said motion for new trial, and after said hearing denied the same, thereby sustaining his prior findings of fact. The misconduct went only to a juror who was sitting in an advisory capacity. Unless the judgment of the trial court is against the clear weight of the evidence, a miscarriage of justice did not take place, the responsibility being upon the court to make independent findings of fact regardless of the *Page 134 determination of said questions by the jury. In the absence of a claim by plaintiff in error that the judgment of the trial court is contrary to the weight of the evidence, it is apparent that the misconduct alleged is not a proper basis for the assertion of a right of reversal of said cause.
The judgment of the trial court is affirmed.
McNEILL, C. J., and BAYLESS, WELCH, CORN, and GIBSON JJ., concur. RILEY, BUSBY, and PHELPS, JJ., dissent.