Volume 197 — Oklahoma Reports

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Law without</italic> <italic>extraterritorial application.</italic> The Workmen's Compensation Law of this state has no extraterritorial application. 2. SAME — <italic>Lack of jurisdiction to award compensation</italic> <italic>for injuries sustained in work performed in another</italic> <italic>state.</italic> The State Industrial Commission in this state is without jurisdiction to award claimant compensation under the Workmen's Compensation Act for injuries sustained in work performed in another state although the contract to perform such work is entered into in this state.

(Syllabus.) 1. DIVORCE — <italic>"Extreme cruelty" without any great</italic> <italic>violence.</italic> A divorce may be granted on the ground of "extreme cruelty" in the absence of any great physical violence when there is conduct or treatment which destroys the concord, harmony, happiness, and affection of the parties, and the legitimate aims, objects, purposes, and ends of matrimony. 2. SAME — <italic>Award of custody of child as between</italic> <italic>parents.</italic> In awarding the custody of a minor child as between its parents the court is to be guided by what appears to be for the best interest of the child in respect to its temporal, mental, and moral welfare. 3. SAME — <italic>Evidence sustained award of child's</italic> <italic>custody to father.</italic> Record examined; <italic>Held</italic>: the finding and judgment of the trial court is not clearly against the weight of the evidence.

(Syllabus.) 1. EXECUTION — <italic>Scope of inquiry on motion to confirm</italic> <italic>sale of realty.</italic> The general rule is that on motion to confirm sale of real estate under execution, the court should confine itself to the regularity of the proceedings on the sale and is not required to go behind the execution and look into the regularity of the judgment. 2. MUNICIPAL CORPORATIONS — <italic>Action to foreclose</italic> <italic>special assessment liens against certain lots — Sale</italic> <italic>erroneously vacated where proof wholly failed to show gross</italic> <italic>inadequacy of price.</italic> Where real property was sold on execution and the sale had been confirmed, and the owner presents a motion to vacate the order of confirmation, wherein he alleges that the property was grossly underappraised and was sold at a grossly inadequate price, and upon hearing, the proof wholly fails to show gross inadequacy of price and there is no showing of any other irregularity in the proceedings of the sale, it is error to vacate the order of confirmation and the sale.

(Syllabus.) 1. PLEADING — <italic>Proof of fact pleaded in form of</italic> <italic>conclusion where such pleading was not properly</italic> <italic>challenged.</italic> Where a pleading states the existence of a fact in the form of a conclusion, in the absence of a motion to make more definite and certain or other proper challenge, said<page_number>Page 624</page_number> pleading is sufficient under which to present proof of the existence of such fact. 2. EXECUTION — <italic>Scope of inquiry on motion to confirm</italic> <italic>sale of realty.</italic> As a general rule, on motion to confirm sale of realty under execution, the court should confine itself to the regularity of the proceedings on the sale and need not go behind the execution and look to the regularity of the judgment. 3. SAME — <italic>Adjustment of equities.</italic> A court may adjust equities in connection with confirmation of a sheriff's sale, and may do this even after confirmation on motion to vacate the order confirming the sale. 4. JUDICIAL SALES — <italic>Discretion of court as to</italic> <italic>ordering resale.</italic> A court of equity has a discretion as to ordering or refusing a resale of property sold at judicial sale. 5. MUNICIPAL CORPORATIONS — <italic>Action to foreclose</italic> <italic>special assessment liens against certain lots — Sale for</italic> <italic>grossly inadequate price properly vacated and owner</italic> <italic>required to make good his tender of amount to pay all</italic> <italic>judgment liens against lots.</italic> Record examined and <italic>held</italic>: That under the circumstances of this case, showing that real property reasonably worth from $4,500 to $6,000, appraised at $303.11, was sold on execution on a bid of $203.50, there being only one bid, and on motion to confirm, exceptions were filed by the owner, in which it was alleged that the property was not appraised, advertised, and sold as by law provided, and the sale was confirmed in the absence of the owner, and upon motion of the owner to vacate the order confirming the sale, it is alleged that the property was grossly underappraised and sold at a grossly inadequate price, and the owner has offered and tendered into court a sum sufficient to pay all the judgment liens against the property, a judgment vacating the order of confirmation and the sale is affirmed upon condition that the owner make good his tender and pay into court the amount of the judgment liens with all interest and costs.

(Syllabus.) 1. MASTER AND SERVANT — <italic>Two types of disputes</italic> <italic>arising between railway management and employees adjustable</italic> <italic>under National Railway Labor Act.</italic> The National Railway Labor Act, 45 U.S.C.A. ch. 8, sec. 152, recognizes two types of disputes often arising between railway management and employees, which may be adjusted thereunder. The first relates to disputes over the formation of collective agreements or efforts to secure them. They arise where there is no agreement or where it is sought to change one. They look to acquisition of rights for the future. The second class contemplates the existence of a collective agreement, i. e., a situation in which no effort is made to bring about a change in the terms of an existing agreement or create a new one. Such disputes relate either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted one. The claim is to rights accrued and not to have new ones created for the future. Elgin, etc., Ry. Co. v. Burley, <cross_reference>325 U.S. 711</cross_reference>, 89 L.Ed. 1886, 65 S.Ct. 1282. 2. SAME — <italic>Authority under Railway Labor Act for</italic> <italic>labor union to represent employees in adjustment of</italic> <italic>disputes over formation of collective agreements.</italic> The National Railway Labor Act itself affords ample power and authority for the collective bargaining agency or labor union to represent the employees and bind all of them in the settlement or adjustment of disputes of the first class mentioned in paragraph 1 of this syllabus. 3. SAME — <italic>Express authorization required for labor</italic> <italic>union to settle past, individual grievances of</italic> <italic>employees.</italic> Express authorization over and above its statutory powers as the duly selected bargaining agent of employees, under the Railway Labor Act of 1934, 45 U.S.C.A. § 151, is necessary to enable a labor union, as the bargaining agent, to settle past, individual grievances of employees or to be the exclusive representative of the employees concerning such grievances before the National Adjustment Board.<page_number>Page 628</page_number> 4. SAME — <italic>Union not authorized to settle claim by</italic> <italic>mere making of complaint by railroad employee through local</italic> <italic>union.</italic> The mere making of a complaint concerning grievances by railroad employees through local union does not, as a matter of law, amount to final authorization to the union to settle claims or represent the employees as regards their individual rights. 5. SAME — <italic>Nonliability of labor union to employee</italic> <italic>for failure to present his claim in settlement in absence</italic> <italic>of specific authorization by such employee.</italic> In the absence of specific authorization by a railroad employee to the collective bargaining agent of employees to represent him in the settlement of a grievance involving an alleged individual right growing out of past acts under a collective bargain, the bargaining agency or union has no authority or obligation to represent such individual employee and is not liable to such employee for failure to present his claim in such settlement. A settlement by the bargaining agent of the claims of other employees does not affect, one way or the other, the claim of an individual employee who has not, as an individual, specifically authorized the bargaining agent or union to represent him.

(Syllabus.) 1. TAXATION — <italic>Inquiry as to amount of taxes due</italic> <italic>— Respective duties of taxpayer and tax collector.</italic> A taxpayer has the burden of making appropriate inquiry of the proper official to ascertain the extent of the tax burden on his property, and upon such inquiry, it is the duty of such official to impart correct information. 2. SAME — <italic>Cancellation of tax deed where nonpayment</italic> <italic>of taxes was due to misinformation of tax collector.</italic> Record examined, and <italic>held,</italic> that where a taxpayer stated to the county treasurer that she desired to pay her taxes "in full" and the county treasurer failed to advise her that taxes for the preceding year were delinquent, and failed to note such delinquent taxes upon her tax receipt as required by 68 O.S. 1941 § 201[<cross_reference>68-201</cross_reference>], a finding by the trial court that by reason of such misinformation she was prevented from paying her taxes is not against the clear weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment in equity case.</italic> In an action of equitable cognizance this court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are clearly against the weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Nullity of case-made not served</italic> <italic>within legal time.</italic> Where plaintiff in error fails to make and serve case-made within the time allowed by statute or within the time as extended by the court, the same is a nullity and brings nothing before the court for review.

(Syllabus.) 1. MORTGAGES — <italic>Relation of grantor and grantee who</italic> <italic>assumes mortgage debt that of surety and principal.</italic> Where a mortgagor conveys mortgaged land to a grantee who assumes and agrees to pay the mortgage, the relationship between the grantee and grantor is that of principal and surety, the grantee becoming the principal obligor of the mortgage debt and the grantor his surety. But this relationship exists only as between the grantor and grantee, and the liability of the grantor to the mortgagee is not affected<page_number>Page 645</page_number> thereby in the absence of a novation. 2. STATES — <italic>Laches and estoppel not operative</italic> <italic>against state in sovereign capacity.</italic> Laches and estoppel do not operate against the state in its sovereign capacity.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Time for filing</italic> <italic>cross-petition in proceeding to review order or award.</italic> Under the provisions of 85 O.S. 1941 § 29[<cross_reference>85-29</cross_reference>], it is necessary that a proceeding to review an order or award be filed within 20 days after a copy of such order or award is sent to the parties. <italic>Held,</italic> that a cross-petition must be filed within 20 days after such order or award is sent, and where said cross-petition is not filed within the time provided by statute, any proceeding based thereon will be dismissed.

(Syllabus.) 1. SALES — <italic>Sufficiency of description of property in</italic> <italic>bill of sale.</italic> In a bill of sale where no contrary intention is expressed the words of description will be deemed to include such property as may fairly and reasonably be regarded as falling within such description. 2. SAME — <italic>Description of oil drilling equipment</italic> <italic>located at certain well.</italic> Where a bill of sale specifically describes the property sold as a Sullivan core drilling machine and other miscellaneous items of equipment and also describes "and all other equipment in connection therewith" and identifies the location of the property at a particular producing well, the bill of sale is sufficient to include a "Halliburton pump" which though not specifically described was located at the well and actually constituted a part of the equipment of the machine. 3. CHATTEL MORTGAGES — <italic>Validity of mortgage as</italic> <italic>between parties though not acknowledged or witnessed as</italic> <italic>required by law.</italic> A chattel mortgage executed in good faith for a valuable consideration is valid between the parties thereto even though it is not acknowledged or witnessed as required by law. 4. FRAUDULENT CONVEYANCES — <italic>Statute providing for</italic> <italic>presumption of fraud where personalty is transferred</italic> <italic>without delivery is not applicable where no rights of</italic> <italic>creditors or others could be impaired.</italic> The provisions of 24 O.S. 1941 § 6[<cross_reference>24-6</cross_reference>], which declares that transfer of personal property other than thing in action shall be conclusively presumed to be void unless accompanied by an immediate transfer of possession, has reference to situations<page_number>Page 647</page_number> therein mentioned wherein rights of creditors or others are or could be impaired and has no application to the transfer by bill of sale where the transaction is not within the purview of the statute. 5. SALES — <italic>Delivery of possession not essential as</italic> <italic>between parties.</italic> As between the parties to the transaction, delivery of possession of an article is not essential to effect a transfer of the title thereto from the seller to the purchaser. 6. SAME — <italic>Transfer of title by bill of sale though</italic> <italic>possession remained in seller.</italic> Where transfer of title to personal property is sought to be effected through a bill of sale unconditional in its terms, the transfer is effected upon delivery of the bill of sale notwithstanding the possession thereof remains with the seller.

(Syllabus.) JUDGMENT — <italic>Collateral attack — Procedure for</italic> <italic>relief from judgment because of extrinsic fraud.</italic> So far as the parties and their privies are concerned, a domestic judgment cannot be collaterally impeached for extrinsic fraud not going to the jurisdiction, but relief from such judgment because of extrinsic fraud must be obtained either in a direct proceeding, as provided by statute, or if for any reason the statutory proceeding is inadequate or unavailable, by a suit in equity.

(Syllabus.) APPEAL AND ERROR — <italic>Order vacating order of dismissal</italic> <italic>and reinstating cause not appealable.</italic> An order which vacates an order of dismissal and reinstates the cause is not such an order from which an appeal may be taken prior to final disposition of the cause.

(Syllabus.) EVIDENCE — <italic>Hypothetical questions — Necessary</italic> <italic>recital of facts.</italic> Where certain facts are undisputed and are material to the formation of an accurate opinion on the part of the witness, a hypothetical question should include such facts and their omission will justify the trial court in rejecting the answer.

(Syllabus.) 1. DIVORCE — <italic>Best interest of child primary</italic> <italic>consideration in awarding custody.</italic> In a proceedings involving the custody of a child of divorced parents the primary object is to determine what is for the best interest of the child. 2. SAME — <italic>Continuing jurisdiction of court as to</italic> <italic>custody of child not lost by order permitting its removal</italic> <italic>from state.</italic> The jurisdiction of a district court with respect to the custody of a child of divorced parents is continuing, and is not lost by its order permitting the removal of the child to a foreign jurisdiction. 3. SAME — <italic>Court may award custody of child with</italic> <italic>express permission to take it to another state.</italic> The district court may award the custody of a child of divorced parents to a person coupled with express permission to take the child to another state.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Conclusiveness of Industrial</italic> <italic>Commission's finding as to cause and extent of</italic> <italic>disability.</italic> The cause and extent of the disability arising from an accidental injury are questions of fact to be determined by the State Industrial Commission, and where there is any competent evidence reasonably tending to sustain the finding, an award based thereon will not be disturbed on review.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Lack of jurisdiction to make</italic> <italic>award where injury occurs in noncompensable employment.</italic> When, in a proceeding before the State Industrial Commission, the evidence discloses that an injury for which compensation is sought was sustained in a noncompensable employment, the authority of the commission to make an award does not exist, and the State Industrial Commission proceeds properly when it denies the claim for compensation.