Volume 101 — Oklahoma Reports

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action for damages by Inez Roush against the City of Shawnee, a municipal corporation. Judgment for the plaintiff. Defendant appeals-</p>

Error from District Court, Murray County; W. L. Eagleton, Judge. Petition by S. R. Latimer and others to vacate judgment in favor of John A. Haste, administrator of estate of Curtis T. Wade, and another. Petition denied, and petitioners bring error.

<p>Error from District Court, Washington County; Preston A. Shinn, Judge.</p> <p>Action by C. J. Buey against Caroline Corbin, nee Martin, and another. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from County Court, Haskell County; Omar M. Hudson, Judge.</p> <p>Action by the Dobyns-Lantz Hardware Company against W. L. Stocker. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Haskell County; Omar M. Hudson, Judge.</p> <p>Action by the Dobyns-Lantz Hardware Company against W. L. Stocker, and another. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>Frauds, Statute Of—Sufficiency of Writings —Letters and Telegrams.</p> <p>A complete contract binding under the statute of frauds may be entered into by letters, telegrams, or other writings between the parties relative to the subject-matter of the contract and so connected with each other that they may be fairly said to constitute one paper relating to the contract, but in order to be sufficient the letters, telegrams, and writings relied upon must, by reference to each other, disclose every material part of s yalid contract, and must be signed by the party sought to be charged, must set out the parties, the subject-matter, the price, the description of the property, terms and conditions, and leave nothing to rest in parol.</p>

<p>Error from District Court, Delaware County; A. C. Brewster, Judge.</p> <p>Actions by Felix M. Tehee against Ethel J. Wright. Judgment for. plaintiff, and defendant brings error.</p>

<p>Error from District Court, Oklahoma County; T. G. Chambers, Judge.</p> <p>Action by J. Belsky et al. against the Druzstvo Cesko-Narodni Sine at al. From an order denying the appointment of a receiver, plaintiffs appeal.</p>

<p>Error from District Court, Okfuskee County : John L. Norman, Judge.</p> <p>Action by Nut-Te-Che Lewis, by legal guardian, against - E. E. Ward. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>1. Statutes—“Joint Resolution.”</p> <p>If a resolution originating in one house of the Legislature is passed by that house and is then sent to the other for its concurrence. and is passed by it, signed by the presiding officer of each, house and approved by the Governor, it is a joint resolution as that term is used in the Constitution and the joint rules of the Legislature.</p> <p>2. Same—Effect to Modify Lawsi.</p> <p>A joint resolution which has been duly passed by both branches of the Legislature, signed by the presiding officer of each house, and approved by the Governor, may operate to alter or modify an existing law, where such .alteration or modification is of a temporary character.</p> <p>3. Taxation—Right to Recover Illegal Tax —Payment Under Protest.</p> <p>When a taxpayer pays the full amount of the .tax demanded of him by the county treasurer under protest and within the time provided by law, he is entitled to maintain an action to recover the illegal portion of such tax under section 9971, Comp. Stat. 1921, although the amount demanded by the treasurer and paid by the taxpayer was not the full amount of the tax due, as the only method by which the taxpayer can ascertain the amount of the tax is from the county treasurer, and when he has paid such amount under protest and within the time provided by law, he has complied with the conditions precedent to maintaining his action.</p> <p>4. Same—Effect of Joint Resolution Extending Time for Payment.</p> <p>The joint resolution contained in chapter 248, Sess. Laws 1923, extending the time for the payment of the 1922 taxes, simply provided a time for the payment of the taxes, and did not restore any right or remedy for the recovery of illegal taxes and was not in violation of section 52, art. 5. of the Constitution. No right or remedy under section 9971, Comp. Stat. 1921, existed until the taxpayer paid his taxes at the time and in the manner provided by law; after the passage of the joint resolution prescribing the time for which the 1922 taxes might be paid, a taxpayer could pay his tax within the time prescribed by such resolution under protest and a right of action thereupon existed and a remedy was afforded for the collection of the illegal portion of such taxes under section 9971, Comp. Stat. 1921.</p> <p>5. Same—Notice of Protest to Officer—Sufficiency.</p> <p>The purpose of the provisions of section 9971, Comp. Stat. 1921, requiring the taxpayer to give notice to the officer collecting the tax showing the grounds of complaint, was to require the person complaining to point out the portion of the tax which the taxpayer claims was illegal, together with a sufficient statement of the objections to notify the collector of the character of the objections. Tt was not contemplated that the protest should be in any particular form or that it should meet the requirements of a petition filed in court for the recovery of the taxes. A notice of protest which pointed out the specific items complained of, logether with the exact amount of each tax which it was asserted had been illegally levied and alleged that such taxes were illegal because, they had been levied without authority to make the levy or because the levy was excessive, was a sufficient compliance with the statute.</p> <p>6. Taxation—Computation of Tax Rate— Case Followed.</p> <p>The construction given section 9699, Comp. Stat. 1921, in Hines v. Dalton, 90 Okla. 239, 217 Pac. 168, relative to the audition of ten per cent, as allowance for delinquent taxes is followed.</p> <p>7. Schools and School Districts—Separate Schools—Tax Rate.</p> <p>Chapter 48, Senate Bill 323, Act of March 31, 1921, authorized a levy for the maintenance of separate schools and removed all statutory limitations on such levy up to the constitutional limit of eight mills, and if the amount which could be raised within the eight mills was insufficient, then the excise board was authorized to make an additional levy of 2 mills under section 9, art. 10, of the Constitution.</p> <p>8. Taxation—Counties—-Limit for “Current Expenses”—Provision for Boys’ School.</p> <p>Section 1, ch. 297, Sess. Laws 1919, authorized a levy of not to exceed one-half mill on the dollar upon all taxable property in counties having a population of 52,-000 persons for the purpose of buying a suitable farm and the erection of a building and the maintenance of a county supervised school for a home for dependent and neglected white boys of such county under the age of sixteen years. The fund authorized to be levied under this statute, when levied, becomes a part of the fund for current expenses for the fiscal year for which the levy is made, and the amount of the levy for this purpose and other current expenses is limited by the provisions of the statute relative to current expenses. The levy authorized by the statute is not in addition to the levy for current expenses limited to four mills by section 9692, Comp. Stat. 1921, and the total levy for current expenses and for the purposes provided by the Boy School Act cannot exceed the limit of four mills, unless authorized by an election.</p> <p>9. Municipal Corporations—Tax Kate—General Laws Controlling.</p> <p>Section 9692, Oomp. Stat. 1921, limits the total levy for current expenses for each city in this state to six mills on the dollar, unless an additional levy is authorized by an election held as provided under sections 9707 and 9712, inclusive, and these provisions of the statute limit the levy wbich can be made in all cities in this state governed by charters or otherwise. Cities in this state receive authority to make tax levies by virtue of general laws enacted by the Legislature, and not otherwise, and in the absence of legislative authority, the city has no power to assess and collect a tax at all. The general laws of this state granting to cities the power to levy taxes is found in sections 9692, 9699, 9707 to 9712, inclusive, and provisions of charters of cities do not supersede these general laws. The amount of tax authorized to be levied by a municipality and the manner of levying the same, is a matter of general public interest and can be accomplished only by general laws and not by charter provisions.</p> <p>10. Same—"Current Expenses" of City.</p> <p>The current expenses of cities of this state, which are limited to six mills by section 9692, Comp. Stat. 1921, include not only current recurring expenses of the city government, but include any expenditure for which a tax is authorized to be levied by the Legislature for any current fiscal year other than the taxes authorized by sections 10 and 27 of art. 10 of the Constitution and the annual installments on bond issues and judgments, and interest thereon.</p>

<p>(Syllabus.)</p> <p>1. Mortgages — Incident to Note — Effect of Transfer of Note.</p> <p>A mortgage securing the payment of a negotiable note is merely an incident and ■accessory to the note, and partakes of its negotiability. The indorsement and delivery of the note carries with it the mortgage without any formal assignment thereof.</p> <p>2. Mortgages—Recordation of Assignments —Statutes.</p> <p>Sections 5251, 5252, Comp. Sfat. 1921, are sufficiently comprehensive to include assignments of real estate mortgages, and such assignments must be recorded to charge subsequent purchasers of incumbrancers with constructive notice thereof-</p> <p>3. Same—Necessity.</p> <p>The recording of an assignment of a mortgage covering real estate is necessary in order to protect the assignee thereof against a subsequent fraudulent discharge of record by the mortgagee, should the property‘thereafter pass into the hands of a bona fide purchaser relying upon such recorded discharge.</p> <p>4. Bills and Notes—Payment to Other Than Holder.</p> <p>Payment of a negotiable note before maturity to anyone other than the holder thereof, or his duly authorized agent to receive such payment, ■ is at the risk of the payer.</p> <p>5. Same — Payment to Mortgagee—Rights of Assignee.</p> <p>Payment of a negotiable note, secured by a mortgage, by the mortgagor, or his grantee, when made to the mortgagee not in possession of the note and mortgage, is not binding upon an assignee thereof before maturity, who had possession of the •papers at the time of payment, unless he had -expressly or impliedly authorized such payment.</p> <p>6. Same—Case—Estoppel of Assignee.</p> <p>Record examined, and held, that the plaintiff was not -a purchaser or incumbrancer in good faith relying upon a recorded release of the mortgage; that payment of the note to the mortgagee, who was not in possession of the note and mortgage, but who had indorsed the note and assigned the mortgage before maturity to the defendant C., who had possession thereof at the time of such payment, was not binding upon C., but was made at plaintiff’s risk; and held, further, that under the facts in this ease the holder of the note and mortgage was not estopped to deny the agency of the mortgagee to collect the debt.</p>

Error from District Court, Tulsa County; Albert C. Hunt, Judge. Action by the First National Bank of Roff against F. D. Prentice and another. Judgment for plaintiff, and defendant named brought error. On death of plaintiff in error, cause revived in name of Donald Prentice, administrator.

Error from District Court, Stephens County; Cham Jones, Judge. Proceedings by the State, on the relation of F. D. Sullivan, County Attorney, to forfeit automobile used to transport liquors; intervention by J. C. Taylor, mortgagee. From the judgment, the owner, J. J. McAdams, brings error.

<p>(Syllabus.)</p> <p>1. Indians—Sale of Surplus Lands—Majority Rights of Creek Freedman.</p> <p>Subsequent to April 21, 1904, all restrictions upon the sale of the surplus lands of a minor male Creek freedman under the Creek treaties and the acts of Congress expired upon his attaining the age of 21 years.</p> <p>2. Limitation of Actions—Indian Territory Statutes.</p> <p>The statutes of limitation,. as they appear in Mansfield’s Digest of the Statutes of Arkansas, control the commencement of all actions, real or personal, where the cause of action accrued prior to November 16, 1907, in that part of the state formerly comprising the Indian Territory.</p> <p>3. Indians—Action for Lands—Limitations.</p> <p>Where a Creek freedman attained the age of 21 years January 18, 1907, his right to bring an action for his surplus lands, held in continuous adverse possession, expired January 17, 1914.</p> <p>4. Same.</p> <p>Upon the expiration of the federal restrictions upon the land of a minor Creek freedman upon his attaining his majority, the statute of limitation of adverse possession applicable thereto begins to run, and after the expiration of the prescribed period may be pleaded in bar to a recovery, notwithstanding the occupant may be holding under a void deed.</p>

<p>(Syllabus.)</p> <p>1. Assault and Battery — Action for Damages—Elements of Recovery.</p> <p>The plaintiff sued the defendant for an assault, resulting in personal injuries, which necessitated the defendant’s confinement in a hospital, treatment by a physician, and the incurring of medicinal expenses. An instruction to the effect that if the jury found in favor of the plaintiff, the jury could take into consideration the expenses the plaintiff was necessarily compelled to pay in treating the wound, such as hospital bills, medicinal expenses, doctors, etc., the time lost from his usual vocation, that was directly caused by the injury, the value of his services for the time so lost, if any, the physical pain and mental anguish suffered by reason of the pain, if any, and award plaintiff such damages as will be a fair, just, and reasonable compensation for the injuries so sustained, if any, is not erroneous; held, further, that the judgment based upon the verdict for $205, which was the amount of the hospital bill, doctor bill, medicine bill, as shown by the undisputed evidence, and the plaintiff’s evidence as to reasonable compensation for the time lost, will not be reversed.</p> <p>2. Trial — Instructions — Sufficiency Construed as a Whole.</p> <p>Where the instructions of the court, taken as a whole, correctly state the law. as applicable to the plaintiff’s cause of action and the defendant’s defense thereto, no error can be successfully predicated upon the failure of the court to include in a particular instruction complained of all the law applicable to the issues drawn in question by the pleadings, for that all the instructions must be taken together.</p>