Volume 13 — Oklahoma Reports

<p>Error from the Prolate Court of Blaine County; before W. H. Bowdre, Trial Judge.</p>

<p>Error from the District Court of Cleveland County; before C. F. Irwin, Trial Judge.</p>

<p>'Error from the District Court of/ Cleveland County; before C. F. Irwin, Trial Judge.</p>

<p>' Original Application for Writ of Mandamus.</p>

Error from the District Court of Custer County; before Clinton F. Irwin, Trial Judge. STATEMENT OP PACTS.

Error from the District Court of Nolle Countyj lefore Bay-ard T. Eainer, Trial Judge. STATEMENT OE EACTS.

<p>WARRANTS OF A CITY DRAWN AGAINST A SPECIAL FUND.</p> <p>When warrants are drawn against a city, and express provision is made in said warrants that the same shall be payable from a special fund to be raised by a levy upon certain described lands, the holder of such warrants must resort to mandamus proceedings to compel such levy, and cannot compel the city to pay the same out of the general fund unless it is shown that such levy has been made, and the money to pay such warrants is in the city treasury. Mere neglect or delay on the part of the city to make such levy will not authorize a general judgment for the value of such warrants.</p> <p>(Syllabus by the Court.)</p>

<p>1. FAMILY — Head of. To constitute a person the head of a family within the purview of our exemption laws, there must he at least a condition of dependence o,n the part of the other members upon the head, and either a legal or moral obligation on the part of the head to support and maintain them.</p> <p>2. SAME — Exemptions. The defendant in error, who resides with his widowed mother and two sisters, who are wholly dependent upon him for their support and maintenance, is entitled, under section 2844 of our statutes, as the head of the family, to hold exempt from seizure by garnishment his current wages and earnings for personal or professional services earned within the last ninety days.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Cleveland County; before C. F. Irwin, Trial Judge. STATEMENT OR EACTS. An action by defendant in error as plaintiff, against the plaintiff in error as defendant, in the district court of Cleveland county, to quiet title. Trial, finding and judgment for defendant in error; plaintiff brings case here by petition in error for review.

<p>ATTACHMENT — Jurisdiction of Probate Court. The probate courts of this territory have no jurisdiction to issue an order of attach- ' ment to be levied upon real estate.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Payne County; before Jno. II. Burford, Trial Judge. STATEMENT OE FACTS. On the first day of January, 1902, the defendant in error, as plaintiff, filed simultaneously, in justice court, two .suits, and filed two bills of particulars, against the plaintiff in error, J. P. Hesser, as defendant.

<p>1. COUNTY SUPERINTENDENT — School Districts. A county superintendent has no power or jurisdiction to change the boundaries of a regularly organized school district, by detaching a portion thereof, and forming and creating thereby a new district, until a petition has been duly presented to him, signed by at least one-third of the qualified electors of such school district, and until the notice required by the .statute has been given.</p> <p>2. SAME — Remedy Against.' Where a county superintendent arbitrarily, and without the requisite petition and notice, attempts to detach a portion of the territory from an organized school district, injunction is the appropriate remedy.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Noble county; before Bay-ard T. Rainer, Trial Judge.</p>

Error from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge. STATEMENT OE EACTS. An action by the plaintiff in error as plaintiff, against the defendants in error, as defendants, in the district conrt of Kingfisher county, to rescind contract.

<p>1. SURGICAL EXAMINATION — Power of Courts. The courts of this territory cannot order a plaintiff in an action for an injury to the person to submit to-a surgical examination in advance of, or during the trial of the cause.</p> <p>2.'SAME, One may expose his body, if he chooses, with due> regard to decency, and with the permission of the court, but he cannot be compelled to do so in a civil action without his consent.</p> <p>3. INJURIES — Refusal to Show. Where a person unreasonably refuses to sh'ow his injuries, when requested to do so, that fact may be considered by the jury as bearing on his good faith, as in any other case of a party declining to produce the best evidence in his power and under his control.</p> <p>4. EVIDENCE — In Action for Injuries Sustained. In an action against a city to recover damages for injuries resulting from a fall from a defective «bridge, it is competent for the plaintiff to show that, while the bridge was in the same condition, accidents of a similar nature had occurred at the same place a short time prior thereto.</p> <p>5. SAME. In an action to recover damages for injuries caused by a defective bridge, it is competent for the plaintiff to prove that there were other defects in the bridge than the defects that caused the accident. Also to ' prove the general defective condition of the bridge. This class of testimony is competent for the purpose of showing that the city authorities had knowledge of its defective condition, or that the defects had existed for such a length of time that, by the exercise of reasonable care, they could have been repaired.</p> <p>6. 'VERDICT — Special Interrogatories. Where answers to special interrogatories are not. signed by the jury as a whole, or by their foreman, they constitute no part of the verdict, and cannot be considered for any purpose.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Logan County; before Jno. H. Burford, Trial Judge. STATEMENT OE FACTS. This is a ease where plaintiff in error -took an appeal to. the district court from the action of the county surveyor in surveying and laying out the division line between his land and that of the defendant, John H. Havighorst, defendant in error here.

<p> Error from the District Court of Noble County; before Bay-ard T. Hamer, Trial Judge. </p>

<p>1. PATENT — Petition to Annul. A petition by the United States to annul a patent for fraud, must, under our code practice, contain all the material averments necessary to constitute a good bill in equity under the chancery practice.</p> <p>2. UNITED STATES — Rights as Litigant. The United States as suit- or in a judicial tribunal, has no superior rights,, but is controlled by the same principles of law and rules of practice as one of her citizens.</p> <p>3. PATENT — Suit to Annul, Causes for. The United States may maintain a suit in equity to cancel a patent for fraud in either of the following class of cases: First: Where the government being the only party interested, the patent is charged to have been obtained by fraud in representations or conduct. Second: Where the land by appropriate reservation is not subject to patent, but is nevertheless erroneously patented. Third: Where the land, though subject to patent, in the ordinary administration of the land office, is patented to the wrong person either through fraud or by reason of mistake or inadvertence.</p> <p>4. SAME — Not Maintained, When. Although bribery and perjury may have been committed in procuring- a patent to public land, a court of equity will not grant relief when the United States has not been injured, and will not be benefited, and owes no duty to any person having an interest or equity in the land in controversy.</p> <p>5. SAME. Where one has made a homestead entry upon land and has subsequently made final proof and paid the United States ten dollars per acre for the land and obtained a patent, the same being the highest price for which the land could be sold under any existing law, and there being no adverse claimant to the land who has complied with such of the land laws as to give him an equitable claim to the land, the United States has no such interest as will warrant a court of equity in annulling the patent, although the patentee committed both bribery and perjury in obtaining title.</p> <p>6. SAME. The United States will not wage a suit to cancel a patent solely for the benefit of third persons, to whom she owes no duty • to convey the land or protect it for them.</p> <p>7. SAME. Where a patent has been issued to a homestead entryman for townsite purposes, and the land has been duly platted into lots, blocks, streets and alleys, dedicated to the public, and said town-site is actually used and occupied for purposes of trade and business, and a large number of the lots have been sold to divers innocent purchasers who are owners of and occupying the same, although the patentee obtained title through fraud and bribery, the patent cannot be cancelled without materially affecting the interests of the innocent holders, and the government is without remedy.</p> <p>8. SAM E — Parties* In a suit in equity to cancel a patent, every person having an interest in the land included in the patent is an " indispensable party, and equity will not proceed until they are brought before the court.</p> <p>(Syllabus by the Court.)</p>

<p>1. PARTIES — Gift Not Fraudulent, When. Where all of the parties are before the court, it is not error in an action that should be prosecuted by the heirs of a decedent, to make an order permitting them to, prosecute such action in lieu of the administrator, who had no right to maintain it.</p> <p>2. SAME. A married man, during his life time, may give away his separate property, real or personal, and such gift will be valid and binding as against his lawful heirs after his death, and where the effect of such gift is not to defraud his creditors, the administrator of his estate cannot maintain an action to recover the property so transferred.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court of Blaine County, before, Jno. L. McAtee, Trial Judge.</p>

<p>1. CREDITOR’S BILL — Statute of Limitation Commences to Ruin, When. The statute of limitation on a cause of action in- the nature of a creditor’s bill begins to run from the time an execution on the judgment for the debt is returned, nulla bona, and not from the date of the fraudulent transfer of the property sought to be subjected to the payment of the debt.</p> <p>2. PLEADINGS — Errors Ignored, When. Under section 4018 of the statutes of Oklahoma, 1893, a court in every stage of action must disregard any error or defect in the pleadings or proceedings, which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.</p> <p>3. EVIDENCE. This court will only consider assignments of error as to the admission or exclusion of evidence, when the bill of exceptions or case-made presented contains all of the evidence upon the trial below.</p> <p>4. PLEADINGS — Judgment Not Disturbed, When. A plea of intervention in the nature of a creditor’s bill should contain all of the necessary allegations to make it complete within itself, and an in-terpleader should not be permitted to refer to and make a part of his plea of intervention, portions of the original petition; but where such reference is made, even though it is objected to in the proper manner in due time by the adverse party, and trial had on such pleading, if the court can clearly determine from the record presented that the judgment is right, that the objecting party was not deceived, but protected every substantial right as fully as he could have done if a proper pleading had been filed, the judgment will not be disturbed.</p> <p>5. JUDGMENT — Modified, .When — Admissions of Appellee. Where an appellee admits in his brief that the judgment appealed from is incorrect', this court will modify the judgment to conform with the admission by appellee against his interest.</p> <p>(Syllabus by the Court.)</p>

<p>1. UNSUBSTANTIAL ERRORS — When Will be Dlsergarded. Where the entire record discloses that the judgment is clearly right, unsubstantial errors -which do not go to the merits, will be disregarded.</p> <p>2. FACTOR-^Held, When. A factor is one who receives and sells the goods of another on commission, and in order to be held as a factor, and not .a mere agent or broker, must be in actual or constructive possession of the property sold.</p> <p>3. SAME — Powers—Lien. A-factor has no implied authority to sell,or transfer his principle’s property in payment of his own debts, nor has he any lien upon property the possession of which he acquired by wrongful methods or in bad faith.</p> <p>4. SAME — Agents. An agent or factor has no implied authority to appoint sub-agents, or to delegate his powers; and persons employed by him in handling his principal’s property do not become the agent ol the principal, without the principal’s consent.</p> <p>5. SAME — Unauthorized Acts, Confer no Rights. An intermeddler who sells the personal property of another on credit and takes notes for the purchase price in his own name, and also a mortgage on the property securing said notes, acquires no lien on the property, and can confer none by assignment of the notes and mortgage to one who has notice of the facts.</p> <p>6. SAME — Rights Under Lien. Where a factor has a lien upon notes in his hands belonging to his principal, for commission, he has no implied authority to assign said notes to his creditor or apply the same to the payment of his debts. In such cases he could only satisfy his lien by some proceeding recognized by law to -foreclose his interest and extinguish the title of the principal.</p> <p>7. CONVERSION — Effect on Lien. Where one wrongfully converts property upon which he has a lien, such lien is extinguished.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Pottawatomie County; before B. F. Burwell, Trial Judge. </p>

<p>1. JURISDICTION — Waiver of. In a case where the district court has original jurisdiction of the subject-matter, and the case comes into said court improperly by appeal, and both parties appear, file pleading^ and go to trial without objections, the question of jurisdiction as to the manner of getting into court is waived, and such objection will not be heard for the first time in the supreme court.</p> <p>2. SCHOOL BOARD — Authority of. Notwithstanding the statute authorizes the board of a school district, in conjunction with the county superintendent, to dismiss teachers for incompetency, cruelty, negligence or immorality, such remedy is not exclusive, and the school board may contract with the teacher, giving the board authority to remove the teacher for these or other causes, and in such manner as the contract may provide.</p> <p>3. SAME — Removal of Teacher — How Exercised. A school board having authority to dismiss a teacher, cannot arbitrarily exercise such power for personal reasons, or without sufficient grounds affecting the teacher’s efficiency and usefulness. The board is required to act with discretion and judgment, and take all necessary steps to inform themselves, before proceeding to discharge a teacher for cause.</p> <p>4.'SAME — Removal of Teacher — Actions not Final, When. The action of a school board, when authorized, in discharging a teacher, is not final or conclusive, and in a suit by the teacher to recover for the residue of the term, the question of sufficient grounds having exisied to warrant the teacher’s discharge, is one to be determined by the court or jury trying the case.</p> <p>5. PERSONAL SERVICES — School Teacher May not Recover Attorney’s Fee. Under a statute authorizing an attorney’s fee to be taxed for plaintiff’s attorney in actions by laborers, clerks, servants, nurses or other persons for personal services, a school teacher is not entitled to recover such attorney’s fee in- a suit for wages as teacher. The statute is intended to favor persons performing manual labor or menial services, and does not embrace professional services.</p> <p>(Syllabus by the Court.)</p>

<p>1. EMINENT DOMAIN, When the legislature prescribe's a mode by which private property may be taken for public use, notice of the proceedings for condemnation must be provided for, to be given to the party whose property is taken, or injuriously affected, in order that he may have an opportunity to be present and protect his rights, at some stage of the proceedings, and in order to ascertain the proper measure of compensation to which he is entitled. If such notice is not provided for the law is void.</p> <p>2. NOTICE IN CONDEMNATION PROCEEDINGS — Injunction. The service of a writ of ouster in an ejectment suit will not be enjoined where it appears from the face of the petition for injunction that the petitioners who were the defendants in the ejectment suit, are claiming under condemnation proceedings had subsequent to the final judgment in the ejectment, but which was void by reason of the statute failing to provide for notice to be given, to the land owner in such condemnation proceedings.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Noble County; before Bay-ard T. Mainer, Trial Judge. STATEMENT OE PACTS. An action by defendant in error to recover upon a warrant of plaintiff in error. Trial, finding and judgment for defendant in error, for the sum of $420.20 and costs. Plaintiff in error brings the case here by petition in error for review.

<p>1. MALICIOUS PROSECUTION — Averments of Petition. A petition states a cause of action for malicious prosecution which contains the averments that a prosecution was commenced against the plaintiff, that is was instituted or instigated by the defendants, that it was malicious, that is was without probable cause, and that it has been legally and finally terminated in plaintiff’s favor, and it is error to exclude all evidence in support of the allegations of such petition.</p> <p>2. JUDGE OF DISTRICT COURT — Authority—Erroneous Judgment, a Bar. While the judge of the district court in the trial of a criminal cause is not authorized after the evidence of the prosecution is in, to summarily discharge the jury, dismiss the case and discharge the defendants, yet if he does enter such erroneous order and judgment, such judgment will bar another prosecution against the defendant for the same offense.</p> <p>3.’ DEFENDANT — Acquitted, When. One charged with a crime cannot be put in jeopardy twice for the same offense, and when a person has been put upon his trial before a court having competent jurisdiction upon an indictment sufficient to sustain a conviction, and the jury has been empanelled and sworn to try the cause, a discharge oí the jury without good cause and before verdict, will discharge the defendant and entitle him to an acquittal.</p> <p>4. JEOPARDY — Defined. Jeopardy attaches from the time the jury is empanelled and sworn to try the cause.</p> <p>(Syllabus by the Court.)</p>

<p>VERDICT — Evidence Insufficient to Sustain. When the evidence given at the trial, with all the inferences that the jury could justifiably draw from it, is insufficient to support a verdict for the plaintiff, so that such a verdict, if returned,' must be set aside, the court is not bound to submit the case to the jury, but may direct a verdict for the defendant; while, on the other hand, the case should be left to the jury unless the conclusion follows, as matter of law, that no recovery can be had upon any view which can be properly taken of the facts which the evidence tends to establish.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Oklahoma, County; before B. F. Burwell, Trial Judge. STATEMENT OE EACTS. An action by plaintiff in error against defendant in error, in the district court of Oklahoma county, to recover upon three promissory notes, and to foreclose vendor’s lien. Trial before the court and jury; verdict and judgment for the plaintiff for the sum of $18.

<p> Error from the District Qourt of Pottawatomie County; before Bayard T. Plainer, Trial Judge. </p>

<p>INJUNCTION — Who Entitled to. An injunction will not be granted when the right to maintain the action is put in issue, unless the petitioners clearly show that they are legally authorized to prosecute the action and are entitled to the relief prayed.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Grant County.; before James K. Beauchamp, Trial Judge. STATEMENT OR PACTS. This action was commenced in the district court of Grant county, by the plaintiff in error against the defendant in error, to enjoin the defendant from practicing his profession as a-physician in the city of Pond Creek, and the vicinity thereof.

<p>11. PETITION IN ERROR — Dismissed, When. Where a petition in error is filed in the supreme court, and there is not filed therewith a transcript of the proceedings containing the final judgment or order sought to be reversed, vacated or modified, or the original papers, process, files, and bill of exceptions or a case made, no question is presented for review.</p> <p>2. EVIDENCE — When part of Record. Evidence is not a part of the record unless made so by case-made or bill of exceptions.</p> <p>(Syllabus by the Court.)</p>

<p> Errors from the District Court of Pottawatomie County; before Bayard T. Plainer, Trial Judge. </p>

<p>1. RESULTING TRUST — Action Will not Lie for, When — Practice— Demurrer. Findings of fact made by the secretary of the interior will be treated as conclusive in the absence of the record, or a copy thereof, from which such facts purport to have been found.</p> <p>2. FINDINGS OF FACT BY INTERIOR DEPARTMENT. When a court of equity can say that the findings of fact made by the secretary of the interior in a contest case are reasonably supported by the evidence introduced by the opposing parties on the hearing of such contest, and that the facts found support his conclusions of law, it will decline to entertain a bill by the losing party to declare a resulting trust, when such bill discloses the above state of facts; because it fails to state a cause of action, and a demurrer • thereto on that ground should be sustained.</p> <p>(Syllabus by the Court.)</p>

<p> Mirror from the District Court of Cleveland County; before C. F. Irwin, Trial Judge. </p>

Error from- the District Gourt of Kingfisher County; before G. F. Irwin, Trial Judge. STATEMENT OR FACTS. An action by plaintiff in error. against defendant in error in the district court of Kingfisher county to reform a deed. Trial and judgment for defendant in error. Motion for new trial overruled, and exception by plaintiff in error, who brings the case here upon petition for review.

<p>1. PROBATE COURT — Appeal From. All appeals irom the probate court when exercising its jurisdiction in purely probate matters, must be to the district court, regardless of whether the appeal presents a question of law only, or both questions of law and fact.</p> <p>3. REPEAL OF STATUTES. Repeals by implication are not favored and when two statutes covering in whole or in part the same matter are not absolutely irreconcilable, effect should be given, if possible, to both.</p> <p>3. STATUTES — Construed, How. A general act is not to be construed as applying to cases covered by a prior special act on the same subject.</p> <p>' Syllabus by the Court.)</p>

<p> Error from the District Court of Comanche County; before Frank E. Gillette, Trial Judge. </p>

Error from the ProboAe Court of Canadian County; before J. I. PfyelpS; Trial Judge. STATEMENT OE FACTS.

Error from the District Court of Kay County; before Bayard T. Hamer j Trial Judge. STATEMENT OE EACTS. An action brought by Charles A. Johnson against Charles H. Whalen in the district court of Kay county to recover a commission for the sale of real estate. Trial and judgment for defendant; motion for new trial overruled; exceptions allowed; Johnson brings case here upon petition in error for review.

Error from the District Court of Comanche County; before Franlc E. Gillette, Trial Judge. STATEMENT OE EACTS. The record filed in this court is very imperfect and unsatisfactory. It does not contain the pleadings in the cause, nor are we informed what the cause of action is based on.

Error ‘from the District Court of Pottawatomie County; before B. P. Burwellj Trial Judge. STATEMENT OE PACTS. An action by William Morrill, plaintiff in error, against Charles C. Casper, John Maride, Cora C. Bonehrake, Alex. Dunn and the unknown heirs of William Eobison, deceased, in the district court of Pottawatomie county, to cancel deeds, remove cloud on title, and to decree title in plaintiff.

<p> Original Proceeding in the Supreme Court. </p>

<p>1. LIQUOR LAWS — Contract in Violation of — Action Cannot be Maintained Upon. Where It who is a non-resident of the territory, enters into a contract with C, and employs C as his agent, to-sell intoxicating liquors at wholesale within the territory, without the procurement of a license therefor by R, and' C procures a license and conducts the business in his own name, without disclosing the agency: Held, that such contract and the sales thereunder are in violation of the liquor laws of .the territory, and held, further, that where an accounting has been had between the parties, and C has failed to fully account for all the moneys and property received by him for the benefit of R, an action cannot be maintained by It upon such contract to recover the amount which C failed to account for, and which amount it is alleged that C wrongfully embezzled and appropriated top his own use.</p> <p>2. SAME. One who has procured a license to sell intoxicating liquors is thereby authorized to carry on a business for himself only and sell his own goods, but is not authorized to carry on a business for some other person, as agent or otherwise, or to sell the liquors of any other person, under said license.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Olclahoma County; before B. F. Bwrwell, Trial Judge. STATEMENT OE EACTS. The plaintiff, Neeley, brought this action in the district' court of Oklahoma county to recover damages from the Southwestern Cotton Seed Oil Company for personal injuries received while in the employ of the defendant. The plaintiff was a common day laborer, and had been .in the employ of the defendant as such for only a few weeks when the accident occurred.

Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge. STATEMENT OE EACTS. An action by J. W. Mitchem against J ames Donahoe and Mary Donahoe in the district court of Canadian county for the possession of lots 13 and 14, block 78, in the city of El Beno; judgment for Mitchem; defendant in error brings case here by petition in error for review.

<p> Error from the District Qourt of Oklahoma County; before B. F. BwrweTl, Trial Judge. </p>

Error from ihe. District Court of Logan County; before Bayard T. Hainer, Trial Judge. , . STATEMENT OE EACTS. Ain action in the name of the Territory of Oklahoma against H. H. Beaves and E. S. Beaves at the instance of the county attorney of Logan eonnty, to enjoin the maintaining of a public nuisance, to-wit:' A disorderly and disreputable theatre in the city of Guthrie.

<p> Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge. </p>

<p>1. BAGGAGE. Under the laws of this territory baggage which a common carrier of persons must receive and carry without charge, except for an excess of weight over one hundred pounds, means only such articles as are intended for the use of the passenger while traveling, or for his personal equipment, and does not include merchandise, ■ or articles intended for business purposes.</p> <p>2. PLEADING AS TO DAMAGES. Every fact necessary to be proven to entitle the plaintiff to recover must be averred in his pleadings.</p> <p>(Syllabus by the Court.)</p>

<p>1. MINING CLAIMS — Entering Oil Lands. Public lands of the United States subject to settlement and occupancy, containing petroleum or other mineral oils, chiefly valuable therefor, may he entered and patent obtained thereto under the laws of the United States relating to placer mining claims.</p> <p>2. COMANCHE, ETC., LANDS — How Classed. The lands acquired by treaty from the Comanche, Kiowa and Apache Indian tribes in Oklahoma, were classed as agricultural lands, but subject to the mineral laws of the United States.</p> <p>3. MINING CLAIMS — Character of Lands — How Determined — Possession — Injunction. It is only when lands containing petroleum or other mineral oils are chiefly valuable for the mineral oils, that such lands are. subject to entry and location as placer mining claims, and whether such land is chiefly valuable -for its mineral oils is a question of fact to be proved by the person alleging its mineral character, as against the homestead entry, and such question of fact is to be heard and determined by the land department. Until such time the court may preserve the possessory rights of the legal occupant against continuous trespassing by injunction. ,</p> <p>4. SAME — Comanche Lands — When Subject to Settlement. Under the laws of congress and proclamation of the president opening said lands to settlement, none other than one who had been awarded the right to make homestead entry after August 6, 1901, was permitted to occupy any of said lands for the purpose of discovering oils or making mineral locations until after October 5, 1901, and any entry or occupying prior to said time could confer no rights on the claimant.</p> <p>5. SAME — Valid Location. It is a condition precedent to the location of a mining claim that a discovery must be made, and in case of petroleum or mineral oils, the vein or deposit from which the oil is drawn must be discovered before a valid location can be made.</p> <p>6. SAME — Transfer of Location. One who discovers mineral signs or ■Indications may assign and transfer his prospective discovery to</p> <p>one who may follow it up and make such discovery as to entitle the assignee to a valid location and finally a patent.</p> <p>7. SAME — 'Discovery—Surface Indications not Sufficient. Mere surface indications of mineral oils do not constitute a discovery, and are not sufficient upon which to base a location.</p> <p>8. SAM'EI — Homestead Entry — How Divested by Mineral Claimant. One who has a valid homestead entry upon lands classed as agricultural, but subject to the mineral laws, may be divested of his right by a showing that the land is more valuable for mineral than agricultural purposes, if made at any time before final proof and payment are made and final receipt issued.</p> <p>9. SAME — Possession—Homestead Entryman. The homestead entry-man is entitled to exclusive possession as against all adverse claimants except one having a valid, prior, equal or superior right. A person qualified to make a mining location and having a valid prior mining settlement in good faith or location, has such right of possession as against the homestead entryman. But a contestant for a mining claim or location is not 'entitled to either joint or adverse possession as against the homestead en-tryman.</p> <p>10. SAME — Locator “Sooner.” One who attempted to locate a placer mining claim containing petroleum on August 8th, 1901, was acting in violation of law, and can acquire no rights under such attempted location as against one having a homestead entry, nor can the assignee of such wrongdoer acquire any valid rights.</p> <p>111 INJiUNCTIO’N — Temporary—When not Dissolved. Record examined and Held, the defendants were not entitled to have the temporary injunction dissolved.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Woods County; before John L. McAtee, Trial Judge. </p>

<p> Error from the District Court of Kay County; before Bayard T. Rainer, Trial Judge. </p>

<p> Error from the District Court of Oklahoma County; before B. F. Burwell, THal Judge. </p>

<p>1. INDICTMENT — Tested, How — Estoppel. That an indictment was not properly “found,” “endorsed" or “presented” by the grand jury, may be tested by motion to set aside the indictment before ' plea, and unless so presented, the defendant is thereafter precluded from raising such questions.</p> <p>2. STATUTES — Construed. The provision of 5399, Wilson’s Stat. construed and defined, and held not to warrant the construction previously adopted by this court, and certain cases overruled.</p> <p>3. INDICTMENT — Objections to not Considered on Appeal. The objections that the indictment was “not found,” or was “not endorsed,” or was “not presented,” in the manner prescribed by the criminal code, cannot be presented for the first time on appeal.</p> <p>4. ARRAIGNMENT — Waiver. The defendant in a criminal cause may in person waive the formal reading of the indictment on arraignment, and may consent, in the absence of the original indictment, to have the copy read from the indictment record, and where he does so consent, he cannot after conviction be heard to say that he was not arraigned upon the indictment in the cause.</p> <p>5. JURY — Separation of — When Verdict Vitiated. It is not every technical separation of a jury during deliberation that will vitiate their verdict. In order to warrant the court in setting aside a ver- • diet of conviction on account of the separation of the jury “without leave of court after retiring to deliberate on their verdict,” it must appear that there was such a separation as that the rights 'of the defendant might have been prejudiced thereby.</p> <p>6. INDICTMENT — Sufficiency of — Appeal. The sufficiency of the indictment to support a judgment of conviction, as well as the jurisdiction of the court over the subject matter of the action, may be raised at any stage of the proceedings, and may be questioned for the first time in the supreme court.</p> <p>7. SAME — Sufficient, When. Indictment examined and held to contain all the material averments necessary to constitute the crime of grand larceny.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Garfield County; before John L. McAtee, Trial Judge. ' ' STATEMENT OF FACTS.

Error from the District Court of Canadian County; before C. F. Irwin, Trial Judge. STATEMENT OR FACTS. The agreed statement of facts contained in the record in this case, taking as it does the place of a finding of facts by the trial court, leaves for this court only the duty of applying the law to the facts thus determined.

Error from the District Court of Logan County; before Jno. II. Burford, Trial Judge. STATEMENT OE PACTS. This action was brought in the court below by the defendant in error, Lydia Finch,' against the city of Guthrie to recover damages for alleged personal injuries sustained by her, caused by a fall on a sidewalk which, she alleged was defective.

<p>OCCUPYING CLAIMANT'S LAW — Does not Apply, When, An unsuccessful contestant for a townsite lot, who, during the pendency of the contest, has made valuable and lasting improvements, in good faith, thereon, and who, at the termination of the, contest, is in possession of the lot, is not entitled to hold possession thereof until his improvements are appraised and paid for under the occupying claimant’s law of Oklahoma; as the enforcement of such law in such a case would be an interference with the primary ■disposal of the soil, and therefore in conflict with the organic act of the Territory of Oklahoma.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Pawnee County; before B. F. Burwellj Trial Judge. STATEMENT OF FACTS. The plaintiffs in error were convicted on the 22nd day of November, 1900, in the district court of Pawnee county, for the larceny of a brown mare. Said larceny is charged to have been committed in the Osage Nation attached to Pawnee county for judicial purposes. Trial was had, and the defendants were convicted and sentenced to imprisonment in the federal jail for one year.

Error from the District Court of Noble County; before B. F. Burwell, Trial Judge. STATEMENT OE EACTS.

<p>1. BONDS — Who May Issue. A. municipal corporation having a population of not less than one thousand persons is authorized by act of congress of March 4, 1898, to call an election to issue bonds for the purpose of constructing a system of water works.</p> <p>2. STATUTES — Construed—Census. The provision of the act of congress of March 4, 1898, requiring a school census to be taken to determine the population of a town before proceeding to call an election to issue water works bonds, where the school district of which the town is composed has outside adjacent territory within its limits, is substantially complied with when a census has been taken of the entire district, and an assessor’s, census has been taken of the town, which shows a bona fide population of twelve hundred and eighty-nine.</p> <p>3. INJUNCTION — Waiver of Allegation. In. an action to enjoin the officers of a municipal corporation from issuing bonds to construct a system of water works where the petition contains an allegation that there were nine illegal votes cast which would change the re'sult of the election, the burden is upon the plaintiff to establish such allegation of the petition; and, where the record does not disclose any attempt to prove such allegation, and the record does disclose a stipulation which indicates that such allegation was not contended for, the question will be held by this court to have been waived.</p> <p>(Syllabus by the Court.)</p>

Error from the Prolate Court of Oklahoma County; before Wm. P. Harper, Trial Judge. STATEMENT OE EACTS. Held: as a matter of law, under the facts found, that the said chattel mortgage became and was a lien on the corn so raised by plaintiff in error, to the extent and amount of the rent which plaintiff had agreed to pay, as rental to Adamson, and that Cole had the right of law to sell said corn at said chattel mortgage sale to that amount…

<p>1. APPEAL — Evidence. Where the record in this court in a case on appeal does riot show that it contains all the evidence presented at the hearing below, it presents no error that can be reviewed by this court arising upon a question-of evidence.</p> <p>2. SAME. Evidence taken at the'hearing of a cause before a referee in bankruptcy, in order to be made a part of the record on appeal, must be included in the record certified to the district court, and the certificate of the referee must be such as to show to the court on appeal that it is the evidence so taken before him.</p> <p>3. SAME. Where the certificate of the referee in. a cause in bankruptcy, certified to the district court, is silent as regards any evidence taken before him, and in fact the record does not include any evidence, and where a subsequent certificate attached to certain evidence shows that the evidence sought to be made a part of the record was not certified to the district court until six days after the district court had affirmed the findings and judgment of the referee, such evidence is not properly in the record. of the cause on appeal from the district court to this court. The record, therefore, presents no question for review arising on the evidence.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the Probate Gourt of Kiowa Comity; before Harris Finley, Trial Judge.</p>

<p>1. PETITION DISMISSED — Appeal Boind to be Filed, When. Where an order is made dismissing an involuntary petition in bankruptcy without adjudication, before an appeal to this court can be perfected from such order of dismissal, an appeal bond must be given, approved and filed in the trial court.</p> <p>2. APPEAL AND APPEAL BOND — Record Must Show What. The record in such case in this court should recite the fact that such bond was given, filed and approved, and, if it fails to do so, the ■ appeal will be dismissed on motion.</p> <p>3. RECORD PRESENTS NO ERROR ARISING ON EVIDENCE, WHEN. Where the record in this court in a case on appeal does not show that it contains all the evidence presented at the hearing below, it presents no error that can be reviewed by this court . arising upon a question of evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. DEMURRER PROPERLY OVERRULED, WHEN. In an action for damages for an assault and battery, -where the plaintiff and one other witness testified that the assault and battery was committed, a demurrer to the evidence on the ground that there was no cause of action proved was properly overruled, inasmuch as plaintiff would be entitled to ' nominal damages even though no actual injury had been shown.</p> <p>2. AMENDMENT TO PETITION — No Error in Allowing, When. To allow an amendment to a petition at the conclusion of plaintiff’s evidence is a matter largely within the discretion, of the trial court. Before it will be held error to allow such an amendment, it must appear that the court abused its discretion.</p> <p>3. JURY MAY CONSIDER FINANCIAL CONDITION OF PARTIES, WHEN. In an action" to recover damages for an assault and battery, it is not error to allow the defendant to be called and examined by the plaintiff as to his financial condition, as, after actual injury is shown, the jury, in assessing exemplary damages, may take into consideration the financial condition of the defendant.</p> <p>4. COURT WILL NOT. CONSIDER ASSIGNMENTS OF ERROR, WHEN. Where assignments of error are so general as not to point out the real error complained of, this court will not consider them, nor will it examine the record with regard thereto.</p> <p>5. EXPENSE OF MEDICAL SERVICES — Proper to Prove, When. A married woman, under certain circumstances, may become liable for medical services; and, in cases in which she is liable, it is not error, on the trial of a case for damages for assault and battery, to allow testimony to he Introduced showing the expenses incurred for such services rendered. ,</p> <p>6. ASSAULT AND BATTERY — What Plaintiff Must Show. On the trial of a case for damages for injuries sustained as the result of an assault and battery, the plaintiff must show that the injuries complained of are the result of the wrongful act complained of.</p> <p>7. EVIDENCE OF INJURY NO EVIDENCE OF CAUSE — Failure of Proof, When. In the trial of an action for damages for an assault and battery, evidence which shows the plaintiff was suffering from inflammation of the uterus, ovaries and bladder is not sufficient to prove the cause of the injury. And, in such case, where the evidence fails to show that the injuries are the immediate and proximate result of the assault and battery, Held, that the evidence fails to prove a cause oí action.</p> <p>8. QUESTIONS OF SCIENCE — To be Determined, How. Where the injuries are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be determined by the testimony of skilled professional persons, and cannot be determined from the testimony of unskilled witnesses having no.scientific knowledge of such injuries.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Lincoln County; before Jno. II. Burford, Trial Judge. </p>

<p>1. ATTACHMENT — Amendment a Matter of Judicial Discretion, When. When a motion is filed to discharge an attachment, but Is not supported by an affidavit denying the grounds set out In the affidavit of attachment, the court may, when said motion is called for trial, in its discretion, allow the defendant to file an affidavit i denying the allegations contained in such attachment affidavit.</p> <p>2. SAME — Evidence. An affidavit setting forth the existence of the grounds of attachment in the language of the statute, unaocom-panied by any facts showing them to be true, will support the writ; but when an affidavit is filed by the defendant, in which he positively denies the existence of the facts stated in the attachment affidavit, the burden is thereby cast upon the plaintiff to establish by a preponderance of the evidence the facts necessary to sustain the attachment; but, where a defendant, notwithstanding his affidavit denying the existence of any of the grounds of attachment, introduces his evidence without objection, before the plaintiff is required to introduce any evidence, he thereby waives any error on the part of the trial court is not dismissing the attachment for want of evidence on behalf of the plaintiff.</p> <p>3. SAME. A citizen of this territory has a right, in good faith, to move all of his property to another state, and such removal of his property will not authorize the issuance and levying of a writ of attachment thereon. It is only where one is about to remove his property, or a part thereof, out of the jurisdiction of the court, with the intent to defraud his creditors, that an attachment on the ground of removal of property will lie.</p> <p>(Syllabus by the Court.)</p>

<p>En'or from the District Court of Kingfisher County; before C. F. Irwin, Trial Judge.</p>

<p>1. REMOVAL OF CITY OFFICER. Where the legislature enacts a general law on the subject of cities of the first class, and in one article provides that any city officer, except the mayor, may be. removed for cause by the mayor and the city council, • and in another article provides that the city marshal may be removed by the mayor and city council for certain causes, naming them, upon complaint, the provisions of the article relating to the marshal will control, and it will -be presumed that the legislature did not intend to include such officer within the terms of the general statute for the removal of officers.</p> <p>2. SAME — Judicial Action, When — Construction of Statutes. A law which authorizes the removal of a public officer for specified causes, such as intoxication, gambling, abuse of power, brutal or indecent conduct, the acceptance of bribes, etc., unless excluded by the language of the statutes, implies notice to the accused of the nature of the charges, and time of hearing, the right to introduce evidence in his own behalf after a case is made out by his accusers, and to be represented by counsel, who may cross-examine the witnesses against him; and he cannot lawfully, under such a statute, be removed without an opportunity to introduce his evidence and malee his defense. And the burden is upon those prosecuting the charges to establish them; and a statute which authorizes a city council to hear and determine such charges and to enter an order of removal, but fails to provide for an appeal to, or review in the courts of the territory is absolutely void, because the hearing of evidence, weighing the same and rendering a decision based thereon, is judicial action, and, under, section nine of the organic act of Oklahoma, the entire judicial power, of this territory is • vested in certain named courts, and a city council is not one of them.</p> <p>3. POWER OF LEGISLATURE. The legislature of this territory has the power to authorize the mayor and city council of a city of the first class to remove summarily any elective or appointive city officer without notice or hearing, as it may legislate upon all rightful subjects of legislation,- provided its acts do not contravene the provisions of the constitution of the United States or of some act of congress; but if it attempt to authorize such mayor and city council to remove such officer for specified cause, upon hearing and evidence, while that part which authorizes the removal for the causes named, will be upheld, the right of the mayor and city council to try him will be denied, because the procedure called for judicial action, and not the exercise of political power. The nature of the power is not determined, from ,the .mere removal of the officer, but from the procedure by which his removal is to ■ be effected. ■</p> <p>4. MANDAMUS. One who has been duly elected to the office of city marshal is entitled to the possession . of the property and paraphernalia belonging to such office, and a writ of mandamus will not issue on the application of the mayor, for the city to compel such officer to surrender the possession of said property, where the only reason assigned for such writ is that the marshal has been removed from his office by the city council; as the courts will take judicial notice that under the law of this territory the city council have not the power to lawfully make such an order.</p> <p>(Syllabus by the Court.)</p>

<p>1. ELECTION — Majority of Votes Cast — Meaning of. Where an elec- . tion is legally called and held under chapter 28 of the law of 1901 to determine whether a county high school shall be established, and at which a majority of the votes cast upon the proposition are in favor of the same, the proposition will be adopted, although It. may not have received a majority of all the votes cast upon other questions submitted at the same election.</p> <p>2. SAME — County High School — Location of. "Where a statute in reference to the establishment of county' high schools provides that, “When one-third of the electors of the county, as shown by the returns of the (ast preceding election, shall petition the board of county commissioners requesting that a high school be established in their county at a place in said petition named,” etc., a petition presented to said board requesting that “a county high school be established in Logan county, Oklahoma Territory, in or near the'city of Guthrie, in said county,” sufficiently names and designates the place at which such a school is desired to be located, and is ,a substantial compliance with the requirements of the statute.</p> <p>3. SITE FOR HIGH SCHOOL — Conveyance by Trustee. Where a member of the board of trustees of such county high school is the owner of a platted addition to the city of Guthrie, and donates and conveys a block of said addition to the county as a site for such high school building, such conveyance will not 'be avoided by reason of any interest such trustee may have in adjoining premises, where no fraud or undue influence of such trustee is shown or alleged, and no claim is made that the site selected is not a proper and suitable one for the purpose.</p> <p>4. SAME — Title to. In such case the title of the county to said premises will be upheld by this court, where the record shows the title of the said trustee to have been heretofore affirmed by this court, and that notwithstanding an appeal from such decision is now pending in the supreme court, of the united States.</p> <p>5. MUNICIPAL CORPORATIONS — Powers of. There cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction and privileges. And where the statute creates a high school board of trustees, and authorizes such board to erect a high school building and create an indebtedness therefor and for teachers, wages and contingent expenses, and “to issue warrants for the amount of the same payable in equal annual installments of not less than five nor more than twenty years, drawing interest at the rate of six per cent, per annum,” etc., such warrants, when so issued, will create a county indebtedness, and can only be issued in such amount as when taken in connection with the county indebtedness already existing, will not exceed the federal limitation of four per cent.</p> <p>(Syllabus by the Court.)</p>

<p>1. PETITION — Does not State Facts Sufficient to Constitute a Cause of Action, When. A petition in an action to declare a resulting trust, which does not allege and show upon its face that the plaintiff has a better right to the land than the patentee, such as in law should have been respected by the officers of the land department, and, being respected, would have given him the patent, does not state facts sufficient to constitute a cause of action.</p> <p>2. PETITION — Defective, When. In an action to declare a resulting trust, where the plaintiff claims the land under the homestead laws, an essential averment of the petition, and one without which the petition does not state a cause of action, is that the plaintiff has resided upon, cultivated and improved the land for a period of time and to an extent that upon final proof he would be entitled to a patent thereto.</p> <p>3. WHAT PETITION MUST SHOW. It is not; sufficient that the pat-entee ought not to have received the patent. It must affirmatively appear from the allegations of the petition that the claimant was entitled thereto, and that, in consequence. of the erroneous rulings of the secretary of the interior on the facts existing, it was denied him.</p> <p>4. POWER OF SECRETARY. It is within the power of the secretary of the. interior to deny an application to make a homestead entry made by a person who has no equities in the land, when such land is covered by an Indian allotment, even though such Indian allotment has been erroneously made, when the equities in favor of the allottee are such that a great injustice would be done the allottee if such allotment" should be canceled and set aside.</p> <p>5. NO VESTED RIGHT, When. NO vested right is obtained in a piece of government land by reason of the filing of a contest against an" Indian allotment, where such contest does not result in the cancellation of the allotment entry.</p> <p>6. SAME.- No vested right is obtained in a piece of government land by reason of an application to make a homestead entry thereon, when such application to enter is denied, and the entry is never made.</p> <p>(Syllabus by the Court.)</p>

<p>CASE-MADE — Authentication. Where a case-made is signed by the trial Judge but is not attested by the clerk of the court and the seal of the court is not thereto attached, it is not sufficiently authenticated as required by the statute to constitute a valid case-made, and the Judgment of the trial court cannot be reviewed, and the appeal will be dismissed. (Stallard v. Knapp, 9 Okía. 591 followed.)</p> <p>(Syllabus by the Court.)</p>

■Error from the District Court of Logan County; before B. F. Burwell, Trial Judge. STATEMENT OE EACTS. In this case the plaintiff in error, Frank Ellis, was indicted by the grand jury of Logan county for the crime of murder. To this indictment a plea of not guilty was entered.

<p>1. ATTACHMENT — Statute Construed. A positive statement in an affidavit of' attachment in the language of the statute that the plaintiff’s debt was fraudulently contracted, or that he fraudulently incurred the liability or obligation for which the suit has been brought, is sufficient under the statute to authorize the issuance of an attachment.</p> <p>2. FRAUD — Assignment of Debts. Fraud committed in the inception of a debt is, in its nature, personal between the contracting parties, and does not follow an assignment of the debt.</p> <p>3. SAME — Right of Attachment. The right of an assignee of a chose in action to procure a writ of attachment exists only against his immediate assignor, on the ground that the debt or obligation was fraudulently contracted.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Kingfisher County j before C. F. Irwin, Trial Judge. </p>

<p>TRANSCRIPT — Appeal—Errors of Law. A transcript of the record of the district court presents no question in this court for review of the action of the court for errors of law occurring upon the trial of the case.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kay County; before Bayard T. Hainer, Trial Judg.e. DISSENTING OPINION. Whereas, I am unable to concur in the majority opinion rendered by this court in this case, I deem it proper and advisable to state my reasons ior dissenting from that opinion. They are as follows: STATEMENT OE ÉACTS.

<p>PETITION TO OPEN JUDGMENT OR ORDER ON SERVICE BY PUBLICATION ONLY. A petition to open a judgment or order rendered without other service than by publication in a newspaper, may be made by a party to the original judgment, or one to whom the party has conveyed his interest in the subject-matter of the suit.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Ohlahoma County; before John II. Burford, Trial Judge. STATEMENT OE FACTS. At the November term, 1902, of the district court, held in and for Oklahoma county, an indictment was returned by the grand jury of that county, charging the defendant, one George G. Garrison, with the crime of rape, committed upon the person of one Lucy Patt, on the 26th day of February, 1903.

<p>Error from the District Court of Kiowa County; before F. E. Gillette, Trial Judge.</p>

<p>“I. REPLEVIN — Assignment of Chattel Mortgage, not Necessary to Record Acknowledgment of Release — Assignees and Incumbrances in Good Faith. Sec. 9 of chapter 120, vol. 2, of Webb’s Annotated Statutes of Kansas, which provides that, “where any mortgage of personal property shall have been fully paid or satisfied, it shall be the duty of the mortgagor, his assignee or personal representative, to enter satisfaction, or cause satisfaction thereof to be entered of record, in the same manner as near as may he, and under the same penalty for a neglect or refusal, as provided in the case of the satisfaction of mortgages of real estate,” does not authorize or require one who purchases a negotiable promissory note, which is duly transferred by an assignment on the back thereof, before maturity, to also take a formal assignment of a chattel mortgage given to secure it, and have it filed in the office of the ■register of deeds. The transfer of such note carries with it the assignment of the mortgage, there being no law authorizing an assignment of a chattel mortgage, given to secure negotiable paper, to be placed of record;* and such assignee, although he has no record title, will be protected against subsequent purchasers and incumbrances in good faith, and may recover against them in a replevin action involving the property included in his mortgage.</p> <p>2. SAME — Notice.' A separate instrument executed by a mortgagee acknowledging satisfaction of a chattel mortgage and payment of the' debt secured thereby, but which is not acknowledged before some officer named in the statute and certified to as provided therein, is not entitled to record, and the filing or recording thereof imports no notice'.</p> <p>3. PENAL STATUTES. Duties imposed by implication are only those which are necessarily connected with the subject to which the statute relates, and, if they are penal, they are to be construed strictly, which means that they are not to be so extended by implication beyond the legitimate import of the words used in them as to embrace acts not clearly described by such words.</p> <p>4. SAME — Assignment of Mortgage — Notice. The mere fact that a mortgagee in Kansas, in the absence of a contract to the contrary, owns, the legal title to the property mortgaged, does not require, an assignment of such mortgage to be placed of record, there being no statute imposing such duty.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Kiowa County; before John H'. Burford, ■Trial Judge. STATEMENT OE EACTS.

<p> Error from the District Court of Payne County; before John L. Pancoast, Trial Judge. </p>