Volume 202 — Oklahoma Reports

(Syllabus.) 1. ELECTRICITY — <italic>Only duty of electric power company to</italic> <italic>trespasser on top of superstructure, without invitation or</italic> <italic>permission, was not to injure him intentionally or wantonly.</italic> One who without invitation or permission, express or implied, climbs to the top of the superstructure of a highway bridge, and there deliberately and purposely strikes or touches high voltage wires of an electric power company, placed upon arms close to the girder of the bridge with the consent or acquiescence of the county in which the bridge lies, and by reason of his repeated touching of the wires receives an injury which results in his death, is a trespasser, and the only duty owing him from the electric power company is not to injure him intentionally or wantonly. 2. SAME — TRIAL — <italic>Denial of power company's motion for directed</italic> <italic>verdict error.</italic> Where the evidence clearly establishes that the deceased in such case was a trespasser, and there is no evidence tending to prove his intentional or wanton injury by the electric power company, the motion of the power company for a directed verdict at the close of all the evidence should have been sustained, and the denial thereof was error.

(Syllabus.) 1. APPEAL AND ERROR — CONTINUANCE — <italic>In absence of abuse of</italic> <italic>discretion, refusal to grant continuance not reversible</italic> <italic>error.</italic> The granting or refusing of a continuance is within the sound discretion of the trial court, and refusal to grant a continuance<page_number>Page 18</page_number> does not constitute reversible error unless an abuse of discretion is shown. 2. DEEDS — <italic>Test of mental capacity to make conveyance.</italic> The test of capacity to make a deed or conveyance is that the grantor have the ability to understand the nature and effect of the act at the time the conveyance is made. 3. CONTRACTS — <italic>Transaction not set aside on ground of undue</italic> <italic>influence unless shown that such influence was exercised</italic> <italic>effectively.</italic> To set aside any transaction on the ground of undue influence, it must be shown, not only that such influence existed and that it was exercised, but also that it was exercised effectively; that is, that it was the efficient cause in bringing about the transaction complained of. 4. APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence in</italic> <italic>equity case.</italic> In an action of equitable cognizance, where the evidence is conflicting, the judgment of the trial court will not be disturbed unless clearly against the weight thereof.

(Syllabus.) TAXATION — <italic>Right to corrective deed and effect thereof where</italic> <italic>resale deed defective.</italic> Where a tax deed has been issued which may be void upon its face, the owner of the tax title may, if the sale was in fact valid and that fact is apparent from the record of the tax sale, have a correct tax deed issued and the same relates back to the time of the sale and becomes effective from that date.

(Syllabus.) 1. FRAUD — <italic>Essentials of actionable fraud — Proof.</italic> To constitute actionable fraud, it must be made to appear: (1) that defendant made a material representation; (2) that it was false; (3) that when he made it he knew it was false or made it recklessly without knowledge of its truth, and as a positive assertion; (4) that he made it with intention that it would be acted upon by the plaintiff; (5) that plaintiff acted in reliance upon it; (6) that he thereby suffered injury. The absence of any of them would be fatal to recovery. 2. CONTRACTS — DEEDS — <italic>Requisite proof to justify cancellation.</italic> Where fraud in the procuring of a written instrument is alleged, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel all opposing presumptions of good faith. 3. APPEAL AND ERROR — <italic>Review — Sufficiency of evidence in equity</italic> <italic>case.</italic> A judgment in a case of equitable cognizance will not be reversed on appeal unless against the clear weight of the evidence.

(Syllabus.) PARTITION — <italic>Action for partition of real estate — Right to</italic> <italic>affirmative incidental relief to be pleaded by</italic> <italic>cross-petition.</italic> In order for a defendant in an action for partition of real estate to be entitled to affirmative incidental relief, not authorized on the basis of plaintiff's petition and the answer thereto, it is necessary that the right to such relief be pleaded in a cross-petition.

(Syllabus.) 1. INJUNCTION — <italic>By whom proceedings instituted.</italic> As a general rule, if a mere public right is to be vindicated or the mere evasion of law is to be prevented, suit for injunction should be brought by some public officer or body especially charged with a duty in this regard and not by a private individual who is not specifically authorized by statute to bring suit under the particular circumstances. 2. SAME — <italic>Without statutory authority private individual not</italic> <italic>entitled to invoke injunction, except upon grounds recognized</italic> <italic>by courts of equity.</italic> In absence of statute giving authority therefor, a private individual is not entitled to enjoin the illegal acts of public boards without showing that the execution of such acts would cause irreparable injury to rights or privileges of complainant that are cognizable in equity.

(Syllabus.) APPEAL AND ERROR — <italic>Review of evidence — Disposition of cause</italic> <italic>where judgment against clear weight of evidence.</italic> In a civil action where the parties are not entitled to a trial by jury as a matter of right and where the sufficiency of the evidence is challenged, it is the duty of this court to consider the whole record, to weigh the evidence, and if the judgment is found to be clearly against the weight of the evidence, to render or cause to be rendered such judgment as should have been rendered by the trial court. (Turben v. Douglass, <cross_reference>76 Okla. 78</cross_reference>, <cross_reference>183 P. 881</cross_reference>; Uhrina v. Mastako, <cross_reference>100 Okla. 294</cross_reference>, <cross_reference>229 P. 196</cross_reference>)

(Syllabus.) LIMITATION OF ACTIONS — <italic>Action for recovery of debt — Statute</italic> <italic>does not begin to run until cause of action accrues.</italic> Where a contract executed by defendant acknowledged an indebtedness and provided for annual payments of a certain amount thereon, but further provided the entire amount should be repaid by a certain date (January, 1947) unless defendant requested an extension of time in writing, and defendant neither paid nor requested such extension, and after due date plaintiff made demand for payment which was refused, and then brought suit for debt, <italic>Held,</italic> no cause of action accrued to plaintiff until after expiration of the time within which defendant was to pay or request an extension of time, and statute of limitations did not begin to run against unpaid amount of debt until after such date.

(Syllabus.) 1. PARTNERSHIP — <italic>Definition of partnership.</italic> 54 O.S.A. § 1 [<cross_reference>54-1</cross_reference>] defines a partnership as: "Partnership is the association of two or more persons for the purpose of carrying on business together, and dividing its profits between them." 2. SAME — <italic>Each general partner jointly liable with copartner for</italic> <italic>obligation of partnership.</italic> Under 54 O.S.A. § 40 [<cross_reference>54-40</cross_reference>], the liability of each general partner for an obligation of the partnership is a joint liability with his co-partner. 3. SAME — <italic>Existence of partnership as question for jury where</italic> <italic>evidence conflicting.</italic> Where the evidence is in conflict on a disputed question of fact as to the existence or nonexistence of a partnership, the matter is one for determination by a jury. 4. SAME — <italic>Action for recovery of obligation of partnership</italic> <italic>incurred before its dissolution should proceed against</italic> <italic>individual partners.</italic> Where a partnership has been dissolved before an action is commenced for recovery on an obligation of the partnership incurred before its dissolution, such action may be maintained and judgment rendered against the individuals formerly comprising the partnership and no judgment can be rendered against the partnership as such.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Application for approval of sewer</italic> <italic>improvement district bond issue — Statutory duty of Supreme</italic> <italic>Court to consider and approve if such bonds properly</italic> <italic>authorized.</italic> When a sewer improvement district has been organized or created pursuant to statute, and desires to issue bonds as authorized by the act (ch. 19, Title 19, O.S. 1947, as amended by Title 19, ch. 22, S.L. 1949) and presents an application to this court for approval of such bond issue, it is the statutory duty of this court to promptly consider such application and to approve the bond issue if such bonds have been properly authorized in accordance with the statute, and when issued they will constitute valid obligations in accordance with their terms. 2. SAME — <italic>Held, that sewer improvement district was properly</italic> <italic>created and proposed bond issue legally and properly</italic> <italic>authorized.</italic> Upon hearing as provided by statute, it is determined and held that Oklahoma county sewer improvement district No. 3 was organized and created according to law, and that the "Sewer Bonds of 1949" of said sewer district were properly authorized by vote of the electors and by proper action of the board of directors of the district, and when issued they will constitute valid obligations in accordance with their terms.

(Syllabus.) 1. QUO WARRANTO — <italic>Appeal in action to test validity of</italic> <italic>incorporation of city of first class must be prosecuted by</italic> <italic>state's legal representatives.</italic> An action in the nature of quo warranto, under 12 O.S. 1941 §§ 1531[<cross_reference>12-1531</cross_reference>] to 1538, inclusive, to challenge the validity of the incorporation of a city of the first class, and to oust alleged official usurpers, must be brought and prosecuted in the name of the state by its legal representatives. 2. MUNICIPAL CORPORATIONS — <italic>Action of public nature to be</italic> <italic>prosecuted by Attorney General or county attorney in</italic> <italic>district.</italic> A city cannot maintain an action in the nature of quo warranto under 12 O.S. 1941 §§ 1531[<cross_reference>12-1531</cross_reference>] to 1538, inclusive, to challenge the validity of the incorporation of another city as a municipal corporation and to oust alleged official usurpers. Such action, being of a public nature, must be prosecuted by the Attorney General or the county attorney of the county in which the challenged municipal corporation is located.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Statute intended to include</italic> <italic>foreclosure of special assessment liens by tax sale and resale</italic> <italic>as well as by civil action.</italic> The provisions of 11 O.S. 1941 § 242[11-242] are applicable to foreclosure of special assessment liens by tax sale and resale as well as by civil action. 2. CONSTITUTIONAL LAW — LIMITATION OF ACTIONS — <italic>When limitation</italic> <italic>statutes apply to existing contract rights.</italic> Statutes of limitation may be made to apply to existing contract rights against which there were no such statutes in existence at the time they were created, provided a reasonable time is allowed for their enforcement, and such statutes do not violate the constitutional provision against impairment of the obligation of contracts. 3. SAME — <italic>Period of time allowed by statute for enforcement of</italic> <italic>existing contract obligations not unreasonable.</italic> The period of time allowed in 11 O.S. 1941 § 242[11-242] (18 months and 19 days) for the enforcement of existing contract obligations which had been due more than three years or which were to be due more than three years by November 1, 1939, was not unreasonable.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Order appealed from not void on its</italic> <italic>face.</italic> Under the facts and circumstances as disclosed in the opinion, the contention of petitioner that the order appealed from is void on its face cannot be sustained. 2. SAME — <italic>Payments by employer to employee which do not excuse</italic> <italic>delay in filing claim for compensation.</italic> Payments made by an employer to an employee do not excuse delay in filing a claim for compensation before the State Industrial Commission unless such payments were compensation for disability due to accidental personal injury or remuneration in lieu of such compensation. 3. SAME — <italic>Review of Award — Question of fact whether payments</italic> <italic>made as wages or as compensation — Evidence sufficient to</italic> <italic>support finding of Commission denying award.</italic> The question of whether payments made by an employer to an injured employee, subsequent to the injury, are made as wages for work performed or wages in lieu of compensation, under the Compensation Act, is, as a general rule, one to be determined by the Industrial Commission; and this court will not disturb its finding thereon, on petition to review, where such finding is reasonably supported by the evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Review of awards by court —</italic> <italic>Sufficiency of expert evidence to prove cause and extent of</italic> <italic>disability.</italic> Where, in a proceeding before the Industrial Commission, the disability alleged to exist is of such 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 proved by the testimony of skilled professional persons, and a finding of fact based thereon when reasonably supported will not be disturbed. 2. SAME — <italic>Conclusiveness of finding on question of whether</italic> <italic>accidental injury occurred.</italic> The question of whether a workman engaged in a hazardous employment actually sustained an accidental personal injury, when one of fact upon which conflicting evidence is presented, the finding of the commission thereon will be accepted by this court if there is any evidence reasonably tending to support the same.

(Syllabus.) 1. SALES — <italic>No particular form of words necessary, to constitute</italic> <italic>express warranty.</italic> To constitute an express warranty no particular form of words is necessary, and any affirmation of the quality or condition of the vehicle, not uttered as a matter of opinion or belief, made by the seller at the time of sale for the purpose of assuring the buyer of the truth of the fact and inducing such buyer to make the purchase, if so received and relied on by the buyer, is an express warranty. 2. SAME — <italic>Warranty matter of intention — Statements of seller</italic> <italic>satisfactorily constituted warranty and were not expression of</italic> <italic>mere opinion.</italic> Warranty is a matter of intention. A decisive test is whether the vendor assumes to assert a fact of which the buyer is ignorant, or merely states an opinion, or his judgment, upon a matter of which vendor has no special knowledge, and on which the buyer may also be expected to have an opinion and to exercise his judgment. In the former case there is a warranty; in the latter there is not. Where the buyer knows nothing about the condition or capacity of the automobile purchased, and the seller is an expert in the handling of automobiles, and was engaged in the business of demonstrating and selling the same, a statement made by the seller that the automobile was in A-1 mechanical condition, that he knew the car, that he had driven the car and that the car would take the buyer any place in the United States that she wished to go, satisfactorily constituted a warranty and was not the expression of a mere opinion. 3. SAME — <italic>Province of jury to determine whether facts or</italic> <italic>affirmations, resting wholly or partly in parol, amount to</italic> <italic>express warranty.</italic> If the facts or affirmations relied on to prove an express warranty rest wholly or partly in parol, it is the province of the jury to determine whether they amount to an express warranty. 4. APPEAL AND ERROR — <italic>Questions of fact — Conclusiveness of</italic> <italic>verdict.</italic> Where, in actions at law, disputed questions of fact are submitted to the jury, the judgment of the court based on the jury's verdict will not be disturbed on appeal where there is any evidence reasonably tending to support it.

(Syllabus.) 1. DIVORCE — <italic>Equitable division of property by court in action</italic> <italic>for separate maintenance.</italic> In an action for separate maintenance, the trial court may make an equitable division and disposition of the property of the parties. 2. HUSBAND AND WIFE — <italic>Sufficiency of conflicting evidence to</italic> <italic>support decree.</italic> The judgment in a case for separate maintenance by plaintiff and for divorce by defendant will not be disturbed on appeal where evidence, though conflicting, sufficiently sustains the decree. 3. SAME — <italic>On abandonment by wife without legal cause, husband</italic> <italic>not required to pay alimony.</italic> Where a wife chooses to live separate and apart from her husband without legal cause, he cannot be required to pay her alimony. 4. DIVORCE — <italic>Discretion of court as to allowance of counsel fees</italic> <italic>to wife in separate maintenance as well as divorce case.</italic> The allowance of counsel fees to a wife in a separate maintenance case as well as in a divorce case is left to the discretion of the trial court, which discretion shall be exercised in view of the conditions and circumstances of the case, and it will not be disturbed on appeal unless abused. 5. DIVORCE — NEW TRIAL — <italic>Discretion of court as to reopening</italic> <italic>case for additional evidence.</italic> A request to reopen a case for the introduction of additional evidence is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed by this court unless it clearly appears that the trial court abused its discretion.

(Syllabus.) 1. PLEADING — <italic>Reiteration of matters specifically alleged in</italic> <italic>petition unnecessary in answer to cross-petition.</italic> Where plaintiff sued to recover money due under a written contract to furnish material and admitted partial nonperformance of contract, but alleged same resulted solely from a cause specifically excepted under terms of the contract, the issue was properly presented, and it was unnecessary for plaintiff to reallege such matter as a special defense to defendant's cross-petition for damages alleged to have resulted from plaintiff's partial nonperformance. 2. CONTRACTS — <italic>Building contractor held entitled to contract</italic> <italic>price less proper deductions on account of omissions,</italic> <italic>deviations, and defects chargeable to him.</italic> A contractor, or builder, who has in good faith endeavored to perform all that is required of him by the terms of his contract for the construction of a building, and has in fact substantially performed the same, is ordinarily entitled to sue upon his contract and recover the contract price, less proper deductions therefrom on account of omissions, deviations, and defects chargeable to him, especially where the owner occupies and uses such building.

(Syllabus.) 1. RAILROADS — <italic>Circumstantial evidence that fire which destroyed</italic> <italic>property originated from sparks of passing locomotive.</italic> The fact that a fire which destroyed property originated from the sparks of a passing locomotive may be shown by circumstantial evidence. In order to be sufficient to sustain a verdict, such circumstantial evidence need not rise to that degree of certainty which will exclude every reasonable conclusion other than the one arrived at by the jury. 2. APPEAL AND ERROR — <italic>Judgment of trial court based on verdict</italic> <italic>of jury found reasonably sustained by evidence.</italic> In such a case the judgment of a trial court based on the verdict of the jury reasonably sustained by the evidence and the reasonable inferences to be drawn therefrom will not be set aside on appeal.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>City may not use street for purposes</italic> <italic>inconsistent with its use as highway.</italic> A municipality may not use a street for purposes which are inconsistent with its use as a highway. 2. SAME — <italic>Use of part of street for storage yard held</italic> <italic>inconsistent with its use for a public highway — Abutting</italic> <italic>property owners may enjoin such use of street.</italic> The use of a part of a street for a storage yard is inconsistent with its use for a public highway, and such use will be enjoined on the application of abutting property owners.

(Syllabus.) DIVORCE — <italic>Division of property — Evidence found to sustain</italic> <italic>judgment adjusting property rights of parties.</italic> In a divorce proceeding, where the only question presented to this court for review is that portion of the judgment which adjusts the property rights of the spouses this court will examine all of the evidence and affirm the judgment unless found to be clearly against the weight of the evidence and therefore manifestly unjust.

(Syllabus.) 1. TRIAL — <italic>Sufficiency of plaintiff's evidence to withstand</italic> <italic>demurrer and motion to direct verdict.</italic> If, in a case triable to a jury, admitting the truth of all the evidence favorable to the plaintiff, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict in favor of plaintiff, a demurrer thereto should be overruled. A motion to direct a verdict for defendant under such circumstances should also be overruled. 2. EVIDENCE — <italic>Sufficiency of evidence to sustain verdict and</italic> <italic>judgment.</italic> Evidence reasonably tending to prove the essential facts in a case, either directly or indirectly, or by permissible inferences, is sufficient to sustain a verdict and judgment based thereon.

(Syllabus.) 1. STATUTES — <italic>Gambling statute legally reenacted by special act</italic> <italic>of Legislature adopting 1941 Statutes as law of state.</italic> Section 991 [<cross_reference>21-991</cross_reference>], 21 O.S. 1941, was legally re-enacted when the Legislature, by special act, 75 S.L. 1943, ch. 4, section 1, adopted the 1941 Statutes as the law of the state, and such section then became law, although it was not in force and effect prior thereto. 2. SAME — <italic>Re-enactment of measure by Legislature not in</italic> <italic>violation of constitutional provisions as to any measure</italic> <italic>referred to people by referendum.</italic> When a measure enacted by the Legislature has been submitted to a vote of the people under the referendum provisions of the State Constitution, and such measure is adopted at the election, but such measure nevertheless fails of adoption because of invalidity of the election, a subsequent Legislature may then re-enact the measure, and in so doing does not violate that part of section 3, of art. 5, of the State Constitution, which provides, "any measure referred to the people by the referendum shall take effect and be in force when it shall have been approved by a majority of the votes case thereon and not otherwise." 3. COURTS — <italic>Held, court of common pleas of Tulsa county did not</italic> <italic>cease to exist when city of Tulsa acquired population over</italic> 90,000. Under the facts and circumstances stated in the opinion, the court of common pleas of Tulsa county did not automatically cease to exist upon the city of Tulsa having acquired a population in excess of 90,000 people.

(Syllabus.) APPEAL AND ERROR — <italic>Case-made a nullity where not attested and</italic> <italic>was filed after expiration of time for appeal.</italic> Where a case-made is not signed by the trial judge, attested by the court clerk, or filed in the trial court with the papers in the case as provided by 12 O.S. 1941 § 958[<cross_reference>12-958</cross_reference>], and is not corrected in these respects within the six months period allowed by 12 O.S. 1941 § 972[<cross_reference>12-972</cross_reference>], for perfecting the appeal in this court, it is a nullity and presents nothing for the consideration of this court. Nor can it be withdrawn and corrected in these respects under the provisions of 12 O.S. 1941 § 959[<cross_reference>12-959</cross_reference>], so as to give this court jurisdiction to continue to exist until thereafter terminated by proper legislature act.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Expenditure of funds provided by</italic> <italic>bond issue for specified purpose — Effect of change of</italic> <italic>personnel or in board.</italic> By constitutional provision, funds provided by voted bond issue for specified purpose must be expended for such purpose and no other. Art. 10, sec. 16, Oklahoma Constitution. But such provision is not violated merely by the expenditure of such funds by a new board subsequently created by the Legislature, or by a different board by new legislative authority, if the expenditure purpose is and remains exactly the same. 2. SCHOOLS AND SCHOOL DISTRICTS — <italic>Statute providing for transfer</italic> <italic>of specified funds to board of education not</italic> <italic>unconstitutional.</italic> That portion of section 13 of art. 15, ch. 1A of Title 70, S.L. 1949 (p. 570), providing for transfer of certain specified funds to the board of education of the district in which such funds are to be expended for improvement of separate schools, is not unconstitutional as violative of contractual relation between county commissioners and voters in connection with bonds voted under provisions of H.B. 283, Title 70, chap. 25a, S.L. 1941. 3. SCHOOLS AND SCHOOL DISTRICTS — COUNTIES — <italic>Duty of county</italic> <italic>commissioner to transfer funds to board of education of</italic> <italic>independent school district for expenditure according to</italic> <italic>original voted purpose.</italic> When funds now on hand were provided from bond issue voted pursuant to H.B. 283, Title 70, chap. 25a, S.L. 1941, for improvement of separate schools of the county and were allocated to a named independent school district, it was the duty of the county treasurer, after the effective date of Title 70, S.L. 1949, chap. 1A, art. 15, sec. 13, p. 570, to transfer such funds to the board of education of said independent school district for expenditure according to the original voted purpose.

(Syllabus.) 1. COVENANTS — <italic>Restrictions on use of property not extended by</italic> <italic>implication.</italic> Restrictions on the use of property, being in derogation of the fee conveyed, will not be extended by implication to include anything not clearly expressed. 2. SAME — <italic>Parties confined to meaning of language employed,</italic> <italic>where clear and unambiguous.</italic> Where the language of the restrictions is clear and unambiguous, the parties will be confined to the meaning of the language which they have employed, and it is unnecessary and improper to inquire into the surrounding circumstances or the objects and purposes of the grant or restrictions for aid in its construction.

(Syllabus.) 1. PLEADING — <italic>Authenticated instrument attached to pleading as</italic> <italic>exhibit and made a part thereof controlling.</italic> In considering a pleading to determine whether its allegations are sufficient to state a cause of action or defense, an authenticated instrument attached thereto as an exhibit and expressly made a part thereof is controlling over material allegations of such pleading contradicted by the language of such exhibit. 2. TRIAL — <italic>Order sustaining demurrers to plaintiff's petition as</italic> <italic>amended and judgment dismissing action, held correct.</italic> Record examined, and held, that the order of the district court sustaining demurrers to plaintiff's petition as amended and the judgment dismissing the action were correct upon the transcript here presented.

(Syllabus.) 1. INSURANCE — <italic>Question of fact whether insured in "good health"</italic> <italic>when policy delivered.</italic> The question as to whether insured was in good health at the time of the delivery of an insurance policy is usually a question for determination of the jury under all the facts and circumstances in evidence and its finding on such issue will not be disturbed on appeal where reasonably supported by competent evidence. 2. SAME — <italic>Action on life insurance policy — Burden on insurer to</italic> <italic>prove insured not in good health prior to delivery of policy.</italic> In an action to recover death benefits under a life insurance policy where liability is denied on the sole ground that deceased was not in good health but had developed tuberculosis prior to the delivery of the policy, the burden rests on the insurer to prove and establish such defense. 3. APPEAL AND ERROR — <italic>Judgment not reversed because of admission</italic> <italic>of improper evidence in absence of showing of prejudice.</italic> The admission of immaterial evidence will not cause a reversal of the judgment in the absence of a showing that prejudice resulted therefrom.

(Syllabus.) 1. TRUSTS — <italic>Agreements, wills and trust relations to which terms</italic> <italic>and provisions of Oklahoma Trust Act of</italic> 1941 <italic>are</italic> <italic>applicable.</italic> The terms and provisions of 60 O.S. 1941 § 175.1[<cross_reference>60-175.1</cross_reference>] et seq., the Oklahoma Trust Act, apply to all agreements containing trust provisions entered into subsequent to the effective date thereof, and to all other wills and trust agreements and relations insofar as such terms do not impair the obligations of contract or deprive persons of property without due process of law under the Constitution of the State of Oklahoma or the United States of America. 2. SAME — <italic>Compensation of trustee.</italic> Under 60 O.S. 1941 § 175.48[<cross_reference>60-175.48</cross_reference>], a trustee acting in a fiduciary capacity, as authorized by the Oklahoma Trust Act, is entitled to receive such compensation as provided for in the trust agreement or other contract, and if such compensation is not regulated by or stipulated in the trust agreement, the trustee may charge and deduct reasonable compensation for the services rendered and the responsibilities assumed. Where the trustee is acting under the appointment<page_number>Page 129</page_number> of a court, such compensation shall be paid, irrespective of the provisions of the trust agreement, as allowed or approved by that court. 3. SAME — <italic>Compensation claimed by trustee and allowed by court,</italic> <italic>held reasonable and not excessive, when measured by services</italic> <italic>rendered.</italic> Record examined, and held: compensation claimed by trustee and allowed and approved by the court, measured by the services rendered and the responsibilities assumed, is reasonable and not excessive. 4. SAME — <italic>Compensation of trustee to be fixed by court where</italic> <italic>beneficiary of will protests claim.</italic> A provision in a will creating a trust that the trustee shall be entitled to reasonable compensation for services in the performance of the trust, and in case of disagreement between the trustee and beneficiaries, such compensation shall be fixed by any court of competent jurisdiction, means that where the trustee files his report, claiming compensation in a given sum, and a beneficiary protests the claim, then the compensation shall be fixed by the district court. 5. SAME — <italic>Employment of attorney for trustee held authorized by</italic> <italic>will, and compensation paid attorney for year</italic> 1946 <italic>reasonable</italic> <italic>and not excessive.</italic> Record examined, and held: employment of an attorney for the trustee was authorized by the will and compensation paid to the attorney for the year 1946 was reasonable and not excessive.

(Syllabus.) 1. FRAUDS, STATUTE OF — <italic>Oral promise constituting original</italic> <italic>obligation to pay for goods furnished another not within</italic> <italic>statute of frauds.</italic> An oral promise which constitutes an original obligation of the promisor to pay for merchandise to be furnished on open account to another is not within the statute of frauds. 2. SAME — <italic>Whether original or collateral obligation question for</italic> <italic>jury — Evidence found to reasonably sustain judgment.</italic> Whether an oral promise to pay for merchandise to be furnished to a third person on open account is an original or a collateral obligation of the promisor is to be determined from the intent of the parties as disclosed by the facts and circumstances in evidence and the determination of this question is solely for the jury under proper instructions. The judgment of the trial court based on the verdict of a jury determining such issue will not be disturbed if there is any evidence reasonably supporting the same.

(Syllabus.) APPEAL AND ERROR — REVIEW — <italic>Insufficiency of evidence — Failure</italic> <italic>to stand on demurrer to evidence and to move for directed</italic> <italic>verdict.</italic> Where demurrer to plaintiff's evidence is overruled and defendant introduces his evidence and plaintiff introduces additional evidence, but defendant does not renew demurrer or move for a directed verdict at the close of all the evidence, defendant cannot, after an adverse verdict, urge insufficiency of evidence to support verdict.

(Syllabus.) INSURANCE — <italic>Knowledge of soliciting agent relating to removal of</italic> <italic>personal property covered by policy not imputed to company so</italic> <italic>as to waive nonliability feature of policy.</italic> Knowledge obtained by a soliciting agent of an insurance company that personal property covered by policy of insurance at the place therein designated and not elsewhere will be moved thereafter to another and distant location is not imputed to the company so as to waive said nonliability feature of the policy thereafter issued by the company insuring the same personal property against loss by fire at the same designated location in the absence of a showing that said agent had something to do with the issuance of said new policy sued upon to recover for destruction thereof by fire at a distant location.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Employer engaged in nonhazardous</italic> <italic>business — Injury to employee in incidental hazardous work</italic> <italic>held not compensable.</italic> Where an employer is engaged in a nonhazardous business, and employs some one to perform labor for him of a hazardous nature as an incident to such nonhazardous business, but not in the conduct of same for pecuniary gain, such employee, if injured, does not come within the provisions of the Workmen's Compensation Act. 85 O.S. 1941 § 1[<cross_reference>85-1</cross_reference>] et seq.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case to</italic> <italic>sustain judgment of trial court for defendant.</italic> In an action of purely equitable cognizance the trial court commits no error in denying plaintiff's motion for judgment in<page_number>Page 144</page_number> his favor at the conclusion of all the evidence and in rendering judgment in favor of defendant where the judgment rendered is not clearly against the weight of the evidence. 2. PLEADING — PRINCIPAL AND AGENT — <italic>Cross-petition proper to</italic> <italic>demand payment for defendant agent's services.</italic> In an action in equity to secure an accounting of a terminated agency, where the agent during his agency performs services for his principal under such circumstances as to entitle him to compensation for his services, it is proper for defendant agent by cross-petition to demand payment for his services and have such demand adjusted with the accounting, so that by its decree the court may give complete relief between the parties in respect of the agency. 3. NEW TRIAL — APPEAL AND ERROR — <italic>Discretion of trial court as</italic> <italic>to overruling motion for new trial on ground of newly</italic> <italic>discovered evidence.</italic> The trial court commits no error in overruling a motion for new trial on the ground of newly discovered evidence where it does not appear probable that such newly discovered evidence would cause a different result to be reached on a new trial. Such motion is addressed to the sound discretion of the trial court and its ruling thereon will not be disturbed on appeal in the absence of a showing of an abuse of discretion.

(Syllabus.) MINES AND MINERALS — <italic>Reservation of mineral rights in habendum</italic> <italic>clause controlling over granting clause.</italic> The reservation of mineral rights appearing in the habendum clause of a deed will control over the granting clause where the intention of the grantor to create such reservation is clearly expressed.

(Syllabus.) 1. ACCORD AND SATISFACTION — COMPROMISE AND SETTLEMENT — <italic>Necessity for pleading defense.</italic> Before evidence of a purported compromise agreement is admissible as a defense, over timely objection, the compromise agreement must be specifically pleaded. 2. WITNESSES — <italic>Inadmissibility of evidence tending to impeach</italic> <italic>witness.</italic> Before evidence tending to impeach a witness is admissible for that purpose, over timely objection, a proper foundation must be laid. 3. NEGLIGENCE — <italic>Whether pipe line company was negligent in</italic> <italic>leaving ditch open, into which minor child fell and received</italic> <italic>injuries, held question for jury.</italic> Where a minor child sues for injuries sustained by falling into an open ditch and the proof is that defendant opened a ditch 2 to 2 1/2 feet deep and 1 to 1 1/2 feet wide across the premises of the residence of plaintiff's father and mother and across a path commonly used by the family, and placed the earth and rock excavated from the ditch along each side thereof so as to make an embankment of loose earth and rock from 1 1/2 to 2 feet high on each side of the ditch, and the same remained in that condition for 10 days, the question of whether defendant used the care and caution that an ordinarily prudent person would have exercised under the same or similar circumstances is for the jury. 4. TRIAL — <italic>Instruction properly refused. limiting duty of</italic> <italic>company to refraining from creating hidden dangers, etc.</italic> Under the circumstances stated in paragraph 3 hereof, it was not error to refuse an instruction which would limit the duty<page_number>Page 152</page_number> of defendant to that of refraining from creating or permitting to exist hidden dangers, traps, snares, pitfalls, and other latent dangerous conditions. 5. SAME — <italic>Demurrer properly overruled in personal injury case</italic> <italic>where evidence reasonably tends to prove allegations of</italic> <italic>petition.</italic> In an action for damages for personal injuries, where the petition states a cause of action and there is evidence, though contradicted, which reasonably tends to prove all the material allegations of the petition, it is not error to overrule a demurrer to plaintiff's evidence and deny a motion for a directed verdict for defendants. 6. SAME — <italic>Court's action in refusing application during trial to</italic> <italic>require a medical or surgical examination not error.</italic> The court did not err in refusing defendant's application during the trial to require plaintiff to submit to medical or surgical examination. 7. APPEAL AND ERROR — <italic>Misconduct of counsel — Necessity for</italic> <italic>objections in lower court.</italic> This court cannot review the question of alleged misconduct of counsel for plaintiff in argument to the jury unless an objection is seasonably made and exceptions properly taken. 8. NEGLIGENCE — <italic>In action for damages in personal injury case,</italic> <italic>question of negligence and proximate cause for the jury.</italic> In an action for damages for personal injuries, the question of negligence and the question of proximate cause of the injury are generally questions of fact for the jury.

(Syllabus.) 1. TAXATION — <italic>Constitutional provisions relating to exemptions</italic> <italic>of personalty and realty belonging to scientific, educational,</italic> <italic>and benevolent institutions.</italic> Constitutional proviso exempting from taxation all property not specified which was exempt under territorial laws exempted personalty and realty belonging to scientific, educational and benevolent institutions, colleges or societies devoted solely to appropriate objects of such institutions and used solely for such purposes (Const. art. 10, sec. 6). 2. SAME — <italic>Organization carried on for benefit of its members,</italic> <italic>held not a charitable or benevolent institution.</italic> An organization whose beneficence is confined to its members and depends upon contributions made by such members is not a charitable or benevolent institution within meaning of the laws of the state entitling property held by it to exemption from taxation. 3. SAME — <italic>Brotherhood held not a charitable, educational, or</italic> <italic>benevolent institution, entitling its property to exemption</italic> <italic>from taxation.</italic> The United Brotherhood of Carpenters and Joiners of America, Local No. 329, is neither a charitable, educational nor benevolent institution within the meaning of the laws of this state entitling property held by it to exemption from taxation.

(Syllabus.) TAXATION — <italic>Lots purchased by church with intention of</italic> <italic>constructing building thereon to be used exclusively for</italic> <italic>religious purposes, held exempt from taxation under</italic> <italic>constitutional provisions.</italic> Where a church purchases vacant lots with the intention of constructing a building thereon to be used solely and exclusively for religious purposes and such lots are not used for any other purpose, they are exempt from taxation under the provisions of section 6, art. 10 of the Constitution of the State, notwithstanding construction of the new building had not been started because of economic conditions created by war and thereafter because of injunction proceedings commenced against the church to prevent the construction of a building on the lots, where the church retained a bona fide continuous intention to construct such building on the lots.

(Syllabus.) 1. JUDGMENT — <italic>Motion to vacate — Right to relief where only</italic> <italic>service by publication.</italic> A party against whom a judgment or order has been rendered, without other service than by publication in a newspaper, is entitled to have the same opened, and be let in to defend, when he complies with the provisions of Tit. 12 O.S. 1941 § 176[<cross_reference>12-176</cross_reference>]. The fact that he may have challenged the validity of the service and the jurisdiction of the court to render any judgment will not justify the denial of his application to have the judgment opened. 2. SAME — ARMY AND NAVY — <italic>Right of person prejudiced by reason</italic> <italic>of military service to have judgment opened, which was</italic> <italic>rendered against him while in service.</italic> A person who has been prejudiced by reason of his military service to make defense in an action wherein a judgment was rendered against him while in such service, is entitled, under Tit. 50 U.S.C.A. App., § 520, subdivision (4), to have same opened upon same terms as provided in Tit. 12 O.S. 1941 § 176[<cross_reference>12-176</cross_reference>]. 3. SAME — <italic>Necessary showing of meritorious defense.</italic> To entitle a party to relief under either Tit. 12 O.S. 1941 § 176[<cross_reference>12-176</cross_reference>], or Tit. 50 U.S.C.A. App. § 520, subdivision (4), it is incumbent upon such party to show a meritorious defense to the action. 4. MORTGAGES — <italic>Right of owner of real estate to redeem it from</italic> <italic>mortgage lien in defense against foreclosure of lien on such</italic> <italic>property.</italic> The right accorded to the owner of real estate to redeem it from the lien of a mortgage, although it is no defense to the action on the note secured by the mortgage, is a defense against the foreclosure of the lien of the mortgage on such property.

(Syllabus.) JUDGMENT — <italic>Power of court to vacate or modify during term —</italic> <italic>Judgment sustained in absence of abuse of discretion.</italic> Courts of general jurisdiction have control of all judgments, decrees, or other orders, however conclusive in their character, during the term at which they are rendered, and may set aside, vacate, and modify them during said term, in the exercise of a wide and extended discretion, and in the absence of an abuse of such discretion, an order of the trial court vacating a judgment during the term will not be reversed.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Right to compensation not barred</italic> <italic>where claim filed one year from date of last payment made in</italic> <italic>lieu of compensation.</italic> Under 85 O.S. 1941 § 43[<cross_reference>85-43</cross_reference>], the right to claim compensation is not barred where such claim is filed within one year from the date of<page_number>Page 182</page_number> the last payment of any compensation or remuneration paid in lieu of compensation. 2. SAME — <italic>Question of fact when temporary total disability ends</italic> <italic>— Sufficiency of evidence to support finding and award of the</italic> <italic>State Industrial Commission.</italic> The question of when temporary disability resulting from accidental injury ends is one of fact and where there is competent evidence reasonably tending to support the finding of the State Industrial Commission, an award based thereon will not be disturbed on review.

(Syllabus.) 1. CONTRACTS — <italic>Requisites to modify prior contract.</italic> One claiming that a contract modifies a prior contract must show that the latter contract is definite and certain as to the terms of modification, and the modification extends only so far as the terms are definite, certain and intentional. 2. SAME — <italic>Cardinal rule in interpretation is to ascertain</italic> <italic>intention of parties.</italic> The cardinal rule in the interpretation of contracts is to ascertain the intention of the parties thereto as expressed therein, and give effect to the same, if it can be done consistently with legal principles. In arriving at the intention of the parties to a contract, the language used therein, if it is clear and explicit, and does not involve an absurdity, governs in the interpretation. 3. SAME — <italic>Inference that party did not intend to use words in</italic> <italic>general sense they impart.</italic> Where it is plainly to be inferred that a party could not have intended to use words in the general sense they impart, they will be limited to the matter with reference to which the parties intended to contract. 4. SAME — <italic>Greater regard to clear intent of parties than to any</italic> <italic>particular words used.</italic> Greater regard is to be had to the clear intent of the parties than to any particular words which they may have used.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Waiver of error in admission of evidence</italic> <italic>not within issues by failure to object when question asked.</italic> Ordinarily, where a party fails to object to evidence, inadmissible because not within the issues made by the pleadings, at the time the question is asked, he will be deemed to have acquiesced in the introduction of the evidence and to have waived all objections to the inadmissibility, and will not be heard to complain of its introduction on appeal. 2. PLEADING — <italic>Pleadings considered amended to conform to proof</italic> <italic>where evidence was not within issues, but was not objected</italic> <italic>to.</italic> Where evidence is introduced, without objection, which is inadmissible because not within the issues, on appeal, the Supreme Court may consider the pleadings as amended to conform to the proof where the amendment would have been proper at the trial. 3. TRIAL — <italic>Challenged instruction held within issues raised by</italic> <italic>the pleadings as well as the issues raised by the evidence,</italic> <italic>where pleadings might have properly been amended to conform to</italic> <italic>proof.</italic> The trial court commits no error in giving an instruction within the issues raised by the evidence in the case admitted without objection, although not within the issues raised by the original pleadings in the case, where the pleadings might have properly been amended at the trial to conform to the proof. 4. APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment.</italic> Record examined. Held, evidence sufficient to sustain judgment.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Burden on employer receiving actual</italic> <italic>notice of injury to show prejudice by reason of failure to</italic> <italic>receive written notice.</italic> Where an employee fails to give the written notice of an injury required by 85 O.S. 1941 § 24[<cross_reference>85-24</cross_reference>], and seeks to excuse failure to give such notice upon the ground that the employer had actual notice of all of the facts that the notice is required to impart, and offers competent evidence of that fact, the burden is then placed upon the employer to offer competent evidence to establish the fact that, notwithstanding such actual notice, the employer was prejudiced by the failure to give written notice. 2. SAME — <italic>Conclusiveness of finding on question of whether</italic> <italic>accidental injury occurred.</italic> The question of whether a workman engaged in a hazardous employment actually sustained an accidental personal injury, when one of fact upon which conflicting evidence is presented, is nonjurisdictional, and the finding of the commission thereon is accepted by this court if there is any competent evidence reasonably tending to support the same. 3. SAME — <italic>Sufficiency of evidence to sustain finding that</italic> <italic>petitioner had actual notice of injury, was not prejudiced by</italic> <italic>failure</italic><page_number>Page 191</page_number> <italic>to receive written notice, and that claimant sustained an</italic> <italic>accidental injury.</italic> Record examined, and held, that the finding of the State Industrial Commission that petitioner had actual notice of the injury to claimant, and was not prejudiced by claimant's failure to give written notice of the injury, and its further finding that claimant sustained an accidental injury, are sustained by sufficient evidence.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Surety on supersedeas bond cannot be held</italic> <italic>liable beyond its terms.</italic> The liability of a surety on a supersedeas bond is contractual, is determined by the provisions of the bond, and the surety cannot be held liable beyond its terms. 2. PLEADING — <italic>Effect of motion for judgment on pleadings —</italic> <italic>Judgment as matter of law where no issue of fact.</italic> On motion for judgment on the pleadings where no material issue of fact is presented by the pleadings but there is presented only a question of law, the trial court in considering such motion may pass upon such question of law and enter judgment in favor of the party entitled thereto. 3. APPEAL AND ERROR — <italic>Order vacating judgment previously entered</italic> <italic>appealable like order granting new trial — Necessary to</italic> <italic>prosecute appeal therefrom within six months.</italic> Order vacating and setting aside a previous judgment is a "final appealable order" in the nature of an order granting a new trial, and the aggrieved party cannot on appeal from second judgment more than six months after entry of the order question the correctness of the order.

(Syllabus.) 1. ATTORNEY AND CLIENT — <italic>Contract for attorney's fees not upheld</italic> <italic>where induced by fraud or misrepresentation.</italic> If it appears that a contract for an attorney's fee was induced by fraud or misrepresentation, or that, in view of the nature of the claim, the compensation is so excessive as to evidence a purpose on the part of the attorney to obtain an improper or undue advantage over the client, the contract will not be upheld or enforced, but may be canceled in an action brought by the client. 2. QUIETING TITLE — <italic>Defendants properly joined though some</italic> <italic>claiming under distinct and separate claims and rights.</italic> In an action to cancel certain conveyances and to quiet title to real estate, persons asserting claims to the land or an interest therein may be joined as defendants, although they claim under distinct and separate claims or rights. 3. APPEAL AND ERROR — PLEADING — <italic>Judgment not reversed because</italic> <italic>of failure of court to strike certain portions of pleading.</italic> This court will not reverse a judgment for failure of the trial court to sustain motions<page_number>Page 198</page_number> to strike certain portions of a pleading, or motions to make such pleading more definite and certain, unless it appears that the moving party was prejudiced thereby. 4. TRIAL — <italic>Statutory requirements as to findings of fact and</italic> <italic>conclusions of law.</italic> 12 O.S. 1941 § 611[<cross_reference>12-611</cross_reference>] requires only that the material and controlling facts and conclusions as found by the trial court shall be so separated as to render them distinguishable, thereby enabling a party to except to any particular finding or conclusion which in his opinion may prejudice his rights, and to point out and assign same as error in case of appeal. 5. JUDGMENT — <italic>Judgment outside of any issue made by pleadings or</italic> <italic>evidence is nullity.</italic> A judgment which is entirely outside of any issue made by the pleadings or the evidence, in the case, is a nullity.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Service of case-made — "Opposite party"</italic> <italic>held synonymous with "adverse party."</italic> The term "opposite party," in 12 O.S. 1941 § 958[<cross_reference>12-958</cross_reference>], providing for service of case-made upon the opposite party or his attorney, is synonymous with "adverse party," and means all parties who have an interest in upholding the judgment or order sought to be reversed. 2. SAME — <italic>Case-made required to be served on those only who are</italic> <italic>interested in appeal.</italic> A case-made is required to be served upon those only who are interested in the appeal, and whose interests would be adversely affected by a reversal. 3. CONTRACTS — <italic>Express executory contracts — Act of acceptance</italic> <italic>closes contract.</italic> All express executory contracts resolve themselves, upon analysis, into an offer by one of the parties, and an acceptance of that offer by the other. The act of acceptance closes the contract and, ordinarily, nothing further is required to make the obligation effective. 4. MORTGAGES — <italic>Rights of purchaser at valid foreclosure sale not</italic> <italic>affected by any act of mortgagor after execution of mortgage.</italic> The purchaser at a valid foreclosure sale under a proceeding to foreclose a mortgage,<page_number>Page 205</page_number> acquires, subject to the express reservations or conditions made on the sale, all the title which the mortgagor had at the time the mortgage was executed, divested of the equity of redemption, together with all the appurtenances, easements and incidental rights, and the rights of the purchaser will not be affected by any act of the mortgagor after the execution of the mortgage. 5. COVENANTS — <italic>Prior mortgagee, in absence of estoppel, not</italic> <italic>bound by subsequent restrictions.</italic> A prior mortgagee, in the absence of estoppel, is not bound by subsequent restrictions placed upon the property.

(Syllabus.) 1. MORTGAGES — <italic>Quitclaim deed delivered by mortgagor to</italic> <italic>mortgagee through his attorney, who obtained release of</italic> <italic>judgment in foreclosure action, held a deed and not a</italic> <italic>mortgage.</italic> Where suit was brought for judgment on a note and foreclosure of the mortgage securing same and judgment had been taken and notes and mortgage canceled, a quitclaim deed, executed and delivered by the mortgagor to mortgagee through his attorney, who demanded and obtained the release of the judgment in the foreclosure action, will be treated as a deed and not as a mortgage. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case.</italic> This court will review the evidence in cases of purely equitable cognizance, but the judgment will not be disturbed unless clearly against the weight of the evidence.

(Syllabus.) 1. NEGLIGENCE — <italic>Requisites for recovery under rule of res ipsa</italic> <italic>loquitur.</italic> In order to recover by reason of the rule of res ipsa loquitur, plaintiff must aver and prove such facts as that the instrumentalities which have occasioned the injury were at the time under the control and management of the defendant; that the injury was caused by a failure of defendant's appliances to properly function; and that the cause of such failure is wholly in the power of defendant to prove and beyond the power of plaintiff so to prove. 2. SAME — <italic>Where several instrumentalities are used, res ipsa</italic> <italic>loquitur rule does not apply, where accident may reasonably</italic> <italic>have occurred because of defects in instrumentalities under</italic> <italic>plaintiff's control.</italic> The rule of res ipsa loquitur is a rule of evidence only. It takes more than the mere happening of an accident to set the rule in operation. It must be shown that the occurrence was of such character as that, in the light of ordinary experience, it is without<page_number>Page 212</page_number> explanation except on the theory of negligence. The thing causing the accident must have been under the control of the defendant at the time of the accident. Where there are several instrumentalities used in doing the thing out of which the accident arose, some of which were under the control of defendant and others of which were under the control of the complaining party, the doctrine of res ipsa loquitur will not apply where the accident may reasonably have occurred by reason of defects in the instrumentalities under plaintiff's control.

(Syllabus.) 1. NEW TRIAL — <italic>Duty of trial court to grant new trial when</italic> <italic>convinced justice has not been done.</italic> A district court is vested with judicial discretion in order that justice may be done to the litigants in a case. When the court is convinced that justice has not been done, and that either party to the action had not had a fair trial, it is not only the court's privilege, but its solemn duty, in the interests of justice, to grant a new trial. The power to grant new trials is in its inception a common-law right inherent in all courts of general common-law jurisdiction. 2. SAME — JUDGMENT — <italic>Court's control of its judgments and orders</italic> <italic>during term time — Authority to continue motion and rule</italic> <italic>thereon at subsequent term.</italic> Judgment or orders of courts of record are under control of the court pronouncing them during the term at which they are rendered or entered, and where a motion involving such power is filed during the term and is continued until the next term, the action of the court thereon at such subsequent term has the same legal effect as if such ruling had been made at the term in which the motion was filed.

(Syllabus.) 1. MORTGAGES — <italic>Allegations of facts necessary upon which</italic> <italic>plaintiff seeks to have mortgage decreed a lien on apparent</italic> <italic>paramount title.</italic> In an action to foreclose a real estate mortgage, if plaintiff desires to bring within the jurisdiction of the court and litigate an outstanding title or interest which on the face of the record is a valid paramount title, the plaintiff should allege the facts upon which he seeks to have his mortgage decreed to be a lien on such apparent paramount title. 2. PLEADING — <italic>Petition construed as against petitioner as</italic> <italic>attacking only interests or claims derived from mortgagor</italic> <italic>since execution of mortgage.</italic> In an action to foreclose real estate mortgage, a petition which alleges that certain defendants, other than the mortgagor, are claiming some interests in the real estate, the exact nature of which to the plaintiff is unknown, but that such interests were junior and inferior to the right, title and lien of the plaintiff, without demanding a disclosure of such interests or stating any other ground for including such defendants in the action, should be construed, as against the petitioner, as only attacking interests or claims derived from the mortgagor since the execution of the mortgage. 3. JUDGMENT — MORTGAGES — <italic>Court may properly vacate judgment as</italic> <italic>to owners of paramount title; held, decree vacating such</italic> <italic>judgment not error.</italic> When a judgment in foreclosure of real estate, whether by inadvertence or otherwise, purports to foreclose a title or interest prior and paramount of record to the mortgage, without any reason therefor being alleged or shown, the court on subsequent motion, or in a separate action brought for that purpose, may properly vacate such judgment as to the owners of such paramount title or interest, and in this appeal, under the circumstances shown, it is held that the decree vacating the judgment as to the parties owning such paramount interests was not error.

(Syllabus.) 1. TAXATION — <italic>Essential recital in certificate tax deed showing</italic> <italic>right of county to purchase at tax sale.</italic> Where the recital in a tax deed shows a sale to the county and a deed obtained by virtue of the sale to the county, the deed must contain a recital showing the right of the county to purchase at such tax sale; and, unless the deed contains such a recital, it is void on its face. 2. SAME — <italic>Action to cancel tax deed and quiet title — Right of</italic> <italic>record owner to redeem from tax sale up to time valid deed is</italic> <italic>issued.</italic> The record owner of land sold for taxes is entitled to redeem from tax sale up to the time a valid deed is issued, and when a proper tender for redemption is made to the county treasurer, it is his duty to accept such tender and make the proper record, as required by secs. 433a [68-433a], 433b [68-433b], and 433c [68-433c], Title 68, O.S. 1941; and the county treasurer is precluded from issuing a correction deed in place of a void deed after redemption or proper tender of redemption<page_number>Page 229</page_number> is made to him by the record owner of the land sold for taxes.

(Syllabus.) LIMITATION OF ACTIONS — TRIAL — <italic>Error of court in sustaining</italic> <italic>demurrer to petition, which does not show a cause of action</italic> <italic>barred by limitations.</italic> Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto, urged specially upon that ground, should be overruled.

(Syllabus.) JUDGMENT — <italic>Court without power to grant motion to revive</italic> <italic>judgment after expiration of year after same became dormant,</italic> <italic>though motion for revivor filed before year expired.</italic> As a general rule where a judgment creditor files a motion to revive a dormant judgment and serves notice as required by law, fixing a time for the hearing within the year, but fails to secure an order of revivor until more than one year has elapsed since said judgment became dormant, it is error to grant said motion, unless consented to by judgment debtor.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Members of association of workmen,</italic> <italic>exclusively operating mine under contract with lessee, held</italic> <italic>not employees of said lessee.</italic> The members of an association of workmen, who under contract with a lessee of coal lands for development and production of coal take over exclusive operation of a mine theretofore operated by the lessee, are not employees of said lessee by virtue of 85 O.S. 1941 § 11[<cross_reference>85-11</cross_reference>].

(Syllabus.) JUDGMENT — <italic>Jurisdiction of court confined to issues in case.</italic> Although a court has jurisdiction of the parties and the subject-matter, it is necessary to the validity of a judgment that the court should have jurisdiction of the question which its judgment presumes to decide, or of the particular remedy or relief which it assumes to grant, and should not undertake to pass upon matters outside the issue.

(Syllabus.) 1. CONSTITUTIONAL LAW — <italic>"Police power" an inherent attribute of</italic> <italic>state sovereignty.</italic> "Police power" is an inherent attribute of state sovereignty, under which the states, within constitutional limitations, may determine what is dangerous and injurious to public order, safety, health, morals, and the general welfare of society. 2. GAMING — <italic>Any machine operated by coin, giving free plays for</italic> <italic>certain scores, held a slot machine within meaning of</italic> <italic>statutes, and its operation prohibited.</italic> Under provisions of 21 O.S. 1941 § 964[<cross_reference>21-964</cross_reference>] et seq., defining slot machines as any machine operated by depositing therein any "coin . . . or other thing of value," and by operation of which such person stands to win or lose, by skill or chance, a thing of value; and further defining a "thing of value" to include "amusement, or any representative of value", any machine which could be operated by coin, etc., and which gave free plays for certain scores, was a slot machine within the meaning of the statutes and its operation prohibited. 3. APPEAL AND ERROR — STATUTES — <italic>Effect of amendment of statute</italic> <italic>on accrued right or penalty incurred under provision of a</italic> <italic>former statute.</italic> Where a statute, penal in nature, under which defendant was charged, was amended by legislative enactment during pendency of appeal from judgment, this court cannot determine the issue under the amended statute, since Const., art. 5, sec. 54, prevents amendment from affecting any accrued right or penalty incurred under the provision of a former statute.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Annexation of territory — Meaning of</italic> <italic>terms "adjacent to" and "abutting on", as used in statutes.</italic> The terms "adjacent to" and "abutting on" in 11 O.S. 1941 § 481[11-481] are used in their primary and obvious sense and are used as synonyms and mean adjoining or contiguous. 2. SAME — <italic>Ordinance of city of first class invalid which</italic> <italic>attempts to annex a certain tract to city, without consent of</italic> <italic>owners thereof.</italic> Under 11 O.S. 1941 § 481[11-481], an ordinance of a city of the first class is invalid where it attempts to annex or add to the city, without the consent of the owners thereof, a ten-acre tract of land 660 feet square which has not been subdivided into tracts or parcels of less than five acres, and which has but one residence thereon, and which has no territory adjacent thereto, or abutting thereon within the city limits, on the south side of said tract, and on 270 feet or 9/22 of the west side thereof.

(Syllabus.) 1. PARTIES — <italic>Right of transferee in action to be made a party to</italic> <italic>proceedings.</italic> Where there is a transfer of an interest after the action is filed, the transferee may be made a party, or the action may continue<page_number>Page 253</page_number> for the benefit of the transferee in the name of plaintiff. 12 O.S. 1941 § 235[<cross_reference>12-235</cross_reference>]. 2. TRIAL — <italic>Sufficiency of instructions — Refusal of requested</italic> <italic>instruction.</italic> It is not error to refuse to submit a requested instruction to the jury where the instructions given reasonably and fairly present the issues in the case.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to support judgment</italic> <italic>in conformity with jury's verdict.</italic> A judgment in conformity with jury's verdict, supported by evidence, in cause fairly tried and presented to jury under proper instructions, will not be disturbed on appeal. Lea v. American Nat. Bank of Pryor Creek, <cross_reference>199 Okla. 360</cross_reference>, <cross_reference>186 P.2d 321</cross_reference>.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Duty of Industrial Commission as to</italic> <italic>findings of fact and conclusions of law.</italic> It is the duty of the State Industrial Commission to make specific findings of the ultimate facts responsive to the issues as well as the conclusions of law upon which an order is made granting or denying an award of compensation to a claimant. 2. SAME — <italic>Order vacated where findings and conclusions too</italic> <italic>indefinite for judicial interpretation.</italic> Where the findings of fact and conclusions of law of the State Industrial Commission are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings. 3. SAME — <italic>Power of State Industrial Commission to reopen case</italic> <italic>and allow parties to present further evidence.</italic> Where an award is vacated by the Supreme Court for further proceedings, the State Industrial Commission has the power to, and should, reopen the case and allow the parties to present any evidence that will assist in determining the issues in the case.

(Syllabus.) 1. DIVORCE — <italic>In awarding custody of child, welfare of child</italic> <italic>paramount question for court.</italic> In awarding the custody of a minor child of divorced parents, the welfare of the child is the paramount question for the court to consider. 2. SAME — <italic>Order of court modifying its prior decree in divorce</italic> <italic>proceeding not disturbed where not clearly against weight of</italic> <italic>evidence.</italic> The order of the trial court modifying its prior decree in a divorce proceeding, relative to the custody of a minor child, will not be disturbed on appeal unless it can be said that the order so made is clearly against the weight of the evidence. 3. SAME — <italic>Discretion of court as to allowance of attorney's</italic> <italic>fee.</italic> An application for attorney's fee to the wife in defense of a motion to modify a prior decree in a divorce action, relative to the custody of a minor child, is addressed to the sound discretion of the trial court and its ruling in this respect will not be disturbed on appeal in the absence of a showing of an abuse of discretion.

(Syllabus.) 1. CARRIERS — <italic>Action against bus company for damages for</italic> <italic>personal injuries — Company's responsibility to show injury</italic> <italic>was result of accident which could not have been prevented by</italic> <italic>due skill and diligence.</italic> Undisputed evidence showing the occurrence of a sudden stop of a "bus," carrying passengers for hire, of sufficient violence to throw the plaintiff and other passengers on the floor of the bus, caused by the driver trying to pass a truck when there were at certain intervals piles of sand and gravel in the center of the highway as material for road repairs, clearly observable to said driver, and that said bus collided with one of said sand and gravel piles with such force and violence as to injure plaintiff, is sufficient to justify an inference of some breach of duty owed to plaintiff by the carrier, and casts the burden upon it of relieving itself of responsibility by showing that the injury was the result of an accident which the exercise of due skill, foresight, and diligence could not have prevented. 2. APPEAL AND ERROR — <italic>Admission of incompetent evidence not</italic> <italic>prejudicial error, where merely cumulative.</italic> The admission of allegedly incompetent evidence was not prejudicial error, where that evidence was merely cumulative, and there was other sufficient and competent evidence to sustain the judgment, and, if the evidence of a witness on a particular point is positive and unequivocal and uncontradicted, the admission of incompetent evidence tending to corroborate her on that point being merely cumulative is not reversible error. 3. DAMAGES — <italic>Effect of injuries, both present and to result in</italic> <italic>future, in determining amount of damages.</italic> Jury may consider effect of injuries on plaintiff's physical condition, both present and reasonably to result in the future, in determining amount of damages. 4. SAME — <italic>Consideration of future pain and suffering in personal</italic> <italic>injury action.</italic> Pain and suffering which appear reasonably certain that plaintiff will suffer in future as result of injuries may be considered<page_number>Page 264</page_number> in determining amount of recovery in personal injury action. 5. APPEAL AND ERROR — DAMAGES — <italic>Measure of damages for personal</italic> <italic>injuries — Discretion of jury — Excessiveness of verdict.</italic> Absolute standards to measure damages for personal injuries are unavailable and matter is largely in discretion of jury, and personal injury verdict will not be set aside for excessive damages unless it clearly appears that the jury committed some gross error, acted under some improper bias or totally mistook the applicable rules of law. 6. SAME — <italic>Amount of damages held not excessive under the facts,</italic> <italic>and evidence sufficient to sustain verdict of jury in absence</italic> <italic>of prejudicial errors of law.</italic> $7,166.60 for injuries to back and spine causing traumatic arthritis, two years loss of earning capacity, medical attention in the sum of $500, pain and suffering and future pain and suffering and probable permanent loss or partial permanent loss of earning capacity, was not excessive, and a jury's verdict supported by competent evidence will not be disturbed on appeal in absence of prejudicial errors of law in court's instructions or in its rulings on questions of law presented during the trial.

(Syllabus.) APPEAL AND ERROR — <italic>Review of ruling on demurrer to evidence —</italic> <italic>Necessity for motion for new trial.</italic> The ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law.

(Syllabus.) 1. TRIAL — <italic>Fundamental error in failure of court on its own</italic> <italic>motion to properly instruct jury on decisive issues of case.</italic> It is the duty of the trial court on its own motion to properly instruct the jury upon the decisive issues made by the pleadings and the evidence introduced at the trial, and a substantial misstatement of the issues by including therein matters not made up by the pleadings or the evidence may constitute fundamental error; and it is not necessary for the review of such error on appeal that an exception be saved in the trial court, and the case will be reversed for such failure to correctly state the issues if the jury was probably misled thereby. 2. SAME — APPEAL AND ERROR — <italic>Reversible error — Court's</italic> <italic>misstatement of issues.</italic> Record examined, and the court finds that the jury was probably misled by the court's misstatement of the issues, and cause reversed.

(Syllabus.) 1. ATTACHMENT — <italic>Order discharging attachment — Conclusiveness.</italic> Where a suit is brought in a justice's court, and, at the same time, plaintiff obtains an order of attachment and thereafter all parties are present for trial and evidence is heard, and an order discharging attachment upon the merits is made by the justice, but judgment is rendered on claim for plaintiff, and defendant appeals only from the money judgment, and plaintiff fails to appeal from the order discharging the attachment, defendant filing only an ordinary bond reciting the money judgment, such appeal does not bring up for review, on trial de novo in the common pleas court, the attachment proceeding. Such order constitutes a final adjudication of that branch of the case, and, in a subsequent action upon the attachment bond, is a conclusive decision that such attachment was wrongfully obtained. 2. DAMAGES — <italic>Injury to or loss of property — Special damages</italic> <italic>must be alleged and proved.</italic> In action for any tortious act or omission involving injury to or loss of property or its use, law infers injury measured by value of property, and injured party may recover that standard under general averment of damage, but special and exceptional damages must be alleged and proved to justify recovery. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence in jury case tried</italic> <italic>to the court.</italic> In a jury case tried to the court, where there is any evidence reasonably tending to sustain the findings and judgment of the trial court, including reasonable inferences, and no errors of law are shown affecting the substantial rights of the parties, such judgment will not be disturbed on appeal.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Necessary parties on appeal.</italic> Under 12 O.S. 1941 § 954[<cross_reference>12-954</cross_reference>], all parties of record in the trial court are automatically made parties to the appeal by giving notice in open court of the intention to appeal. 2. WORKMEN'S COMPENSATION — <italic>Insurance company's claims given</italic> <italic>same preference as afforded claims for unpaid wages for</italic> <italic>labor.</italic> 85 O.S. 1941 § 49[<cross_reference>85-49</cross_reference>] makes any valid claim for unpaid compensation insurance premium a lien with the same preference or priority against the assets of the employer as may be allowed by law for a claim for unpaid wages for labor. 3. MECHANICS' LIENS — <italic>Priority of Laborers' liens.</italic> Under 42 O.S. 1941 § 92[<cross_reference>42-92</cross_reference>], laborers who perform work and labor for any person under a verbal or written contract if unpaid for the same shall have a lien on the production of their labor for such work and labor which lien attaches only while the title to the property remains in the original owner; and under 42 O.S. 1941 § 96[<cross_reference>42-96</cross_reference>], liens created under said act take preference over all other liens, whether created prior or subsequent to the laborer's lien created under section 92. 4. WORKMEN'S COMPENSATION — <italic>Liens for unpaid insurance premiums</italic> <italic>limited.</italic> Liens created and provided for by 85 O.S. 1941 § 49[<cross_reference>85-49</cross_reference>] for any unpaid compensation insurance premiums are limited to a lien against such property of the employer as might be covered by a lien for unpaid wages for labor.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — FOOD — <italic>Regulation of milk business —</italic> <italic>Granting or refusing of license discretionary.</italic> Milk business is affected with public interest and is subject to regulation, but regulation must be reasonable and cannot be arbitrary, capricious or discriminatory, and reasonableness depends on facts. Although the act of granting or refusing a license is in a large measure discretionary, the acting authorities are not vested with personal or arbitrary power, but are subject to the control of the courts when it appears that they have acted arbitrarily in the premises. 2. LICENSES — MANDAMUS — <italic>Writ properly issued where defendants</italic> <italic>acted arbitrarily in refusing to issue plaintiff license to</italic> <italic>handle milk.</italic> Where a city health officer is vested with the exercise of discretion or judgment, his duties are clear, and there are not sufficient controverted facts to call for the exercise of discretion and judgment, or where such officer acts arbitrarily, a writ of mandamus may be issued to require the performance of his duty. Held, in this case, there being sufficient allegations and proof showing that defendants acted arbitrarily and without sufficient controverted facts to exercise discretion and judgment, it was not error to issue the writ of mandamus and to make same permanent.

(Syllabus.) 1. TELEGRAPH AND TELEPHONES — CORPORATION COMMISSION — PUBLIC SERVICE UTILITIES — <italic>Order permitting placing in effect of</italic> <italic>temporary increase in intrastate rates, under supersedeas</italic> <italic>bond, continued in force pending determination of application</italic> <italic>for permanent increase.</italic> Where, in a proceeding brought by a public utility before the Corporation Commission for a permanent state-wide increase in rates, it appears that the investigation and determination of the necessity of such increase will consume a considerable period of time, and the Corporation Commission, after a hearing had upon application by the utility therefor, denies an application for temporary increased rates pending final disposition of the permanent rate hearing, from which the utility appeals to this court and supersedeas is allowed under section 21, article 9 of the Constitution, the decision of this court on the utility's appeal from the order of the Commission denying temporary increased rates will be withheld pending final disposition of the application for increased permanent rates, and the order of the court allowing supersedeas continued in force. 2. SAME — <italic>Corporation Commission not deprived by such order of</italic> <italic>jurisdiction to grant or refuse further temporary increases in</italic> <italic>rates.</italic> Where, upon appeal from an order of the Corporation Commission refusing a temporary increased rate, this court, upon application by a public utility, allows it to supersede the order of the Commission and place in effect a temporary increased rate in a given amount pending the determination of the appeal, the making of such order does not deprive the Commission of all jurisdiction over temporary rates, or authorize the public utility, without application to the Commission, to place in effect a second and further increase in its temporary rate. 3. SAME — <italic>Within judicial discretion of court to affirm order of</italic> <italic>Commission denying further temporary increase pending decision</italic><page_number>Page 292</page_number> <italic>upon application for permanent rate increase.</italic> Where, at the time an appeal by a public utility from an order of the Corporation Commission denying it a further and second temporary increase in rates, and enjoining it from putting a further and second increase in effect, is submitted to this court, it appears that the taking of testimony in connection with an application for a permanent increase in the rates of such public utility has been completed, and that the Commission will within a short time pass upon and determine the application for increase of the permanent rate, and where it further appears that the earnings of the public utility, under a rate increase placed in effect by it under a supersedeas bond allowed by the court, are considerably in excess of all operating and other expenses of the utility, this court may, in the exercise of its judicial discretion, affirm the order of the Commission denying such further temporary increase pending decision by the Commission upon the application for permanent rate increase.

(Syllabus.) 1. BASTARDS — <italic>Child born in wedlock presumed to be legitimate.</italic> A child born in wedlock is presumed to be legitimate, and where its mother cohabited with her husband during the period of possible conception, the presumption is that the husband is the father of the child, and such presumption can be overcome only by strong and convincing evidence. 2. SAME — <italic>Insufficiency of evidence to overcome presumption of</italic> <italic>legitimacy of child born in wedlock.</italic> Record examined, and evidence held insufficient to overcome the presumption of the legitimacy of a child born in wedlock.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — <italic>Right to recover on rejected</italic> <italic>portion of claim may only be established by separate action in</italic> <italic>proper court.</italic> Where a claim is partially rejected by an executor, administrator, or county judge, when first presented, the right to recover on the rejected portion may only be established by separate action in the proper court. Sec. 339 [<cross_reference>58-339</cross_reference>], Title 58, O.S. 1941. 2. SAME — <italic>Presumption that service rendered will be paid for —</italic> <italic>Recovery under implied contract.</italic> The performance of beneficial work and labor at the recipient's request or with his consent, by one not a member of his own family, raises a presumption that payment was to be made therefor; so the wife of a nephew of a decedent may recover on an implied contract from the estate of the uncle who has received board, nursing and care from her. 3. SAME — <italic>"Family" defined.</italic> In those cases where recovery is denied for services performed for members of the family, the term "family" has been defined as being "a collective body of persons who form one household, under one head and one domestic government, who have reciprocal natural or moral duties to support and care for each other."<page_number>Page 303</page_number> 4. SAME — <italic>Burden of proof that services performed by one not a</italic> <italic>member of family were gratuitous.</italic> In an action to recover for work and labor, the burden of proof is upon the person who has received such services, or his estate, to prove that the services performed by one not a member of the family were gratuitous. 5. APPEAL AND ERROR — <italic>Sufficiency of evidence — Conclusiveness</italic> <italic>of judgment.</italic> On an appeal under section 721 [<cross_reference>58-721</cross_reference>], Title 58, O.S. 1941, it is the duty of this court to weigh all the evidence and, if the judgment of the trial court is not against the weight thereof, the judgment will be sustained.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Judgment affirmed on second appeal, where</italic> <italic>court proceeded in compliance with directions in former</italic> <italic>opinion.</italic> Where upon a second appeal it appears that the trial court has proceeded in compliance with the directions of this court in its former opinion, and an examination of the case-made discloses that no substantial right of plaintiff in error has been prejudiced, the judgment will be affirmed. 2. SAME — <italic>Determination of equity case by causing such judgment</italic> <italic>to be entered as should have been rendered.</italic> This court on appeal in a case of equitable cognizance will examine the evidence and may cause to be rendered such judgment as in its opinion the trial court should have rendered.

(Syllabus.) 1. MORTGAGES — OIL AND GAS — <italic>Two actions to foreclose mortgages</italic> <italic>against same land — Defendants in one action not divested of</italic> <italic>mineral interests by sale of land to satisfy judgment in the</italic> <italic>other action.</italic> Two actions, No. 4722 and No. 4661, were brought to foreclose mortgages against the same land. Owners of mineral interests were made defendants in No. 4722, but were not defendants in No. 4661. The cases were consolidated, and thereafter the trial court rendered judgment against the defendants in No. 4661. No judgment was rendered against the defendants in No. 4722. Held, that the sale of the land to satisfy the judgment rendered in No. 4661 did not divest the defendants in No. 4722 of their title to the mineral interests. 2. SAME — <italic>Allegations of facts upon which plaintiff seeks to</italic> <italic>have mortgage decreed a lien on apparent paramount title.</italic> In an action to foreclose a real estate mortgage, if plaintiff desires to bring within the jurisdiction of the court and litigate an outstanding title or interest which on the face of the record is a valid paramount title, the plaintiff should allege the facts upon which he seeks to have his mortgage decreed to be a lien on such apparent paramount title.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of appeal by transcript where</italic> <italic>errors presentable only by case-made or bill of exceptions.</italic> Where the appeal to this court is by transcript and the errors assigned are such that they could only be presented by case-made or bill of exceptions, nothing is presented for review, and the appeal will be dismissed.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Where extent of disability question of</italic> <italic>fact, award based on competent evidence not disturbed on</italic> <italic>review.</italic> Where the State Industrial Commission makes an award for permanent partial disability, and the evidence is conflicting as to whether claimant is entitled to an award for total permanent disability, the extent of the disability under the Workmen's Compensation Law, being a question of fact to be determined by the State Industrial Commission, the award will not be disturbed on review.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Appeals to Industrial Commission en</italic> <italic>banc allowed on question of law or fact.</italic> Appeals to the State Industrial Commission en banc shall be allowed on a question of law or a question of fact, or a mixed question of law and fact, and shall be determined on the record made before the trial commissioner, and the commission en banc is without authority to proceed in any cause pending on appeal from a trial commissioner, except under the mandatory provisions of 85 O.S.A. § 77 [85-77]. 2. SAME — <italic>Nature of hearing — Trial de novo not afforded.</italic> The hearing on appeal to the State Industrial Commission en banc does not contemplate, require, nor afford a trial de novo; such appeal contemplates a hearing on questions of law and fact, or mixed questions of law and fact, to be determined on<page_number>Page 333</page_number> the record made before the trial commissioner.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Statutory authority for issuance of</italic> <italic>bonds for improvements not specifically provided for.</italic> In providing improvements of a general nature within the purview of 11 O.S. 1941 § 645[11-645], where such improvements are not specifically provided for in section 27, art. 10 of the Constitution, a city council may rely upon said statute as authority for proceedings leading to the issuance of bonds to pay for said improvements when the proposition submitted to the voters of the city under the statute is assented to by three-fifths of the voters participating in the election as required by article 10, sec. 26 of the Constitution, who possess the qualifications prescribed by article 3, secs. 1 and 4(a) of the Constitution.

(Syllabus.) 1. LIMITATION OF ACTIONS — <italic>Service on one tenant in common not</italic> <italic>commencement of action as to another tenant in common not</italic> <italic>served.</italic> The issuance and service of summons upon one tenant in common does not constitute the commencement of an action under section 97 [<cross_reference>12-97</cross_reference>], Title 12, O.S. 1941, as to another tenant in common who was not served. 2. SAME — <italic>In suit to quiet title summons upon record owner of</italic> <italic>land binding on such owner's grantee.</italic> Service of summons upon a record owner of land in a suit to quiet title is binding on such owner's grantee. 3. QUIETING TITLE — <italic>Bank Commissioner held not "necessary party"</italic> <italic>in quiet title action.</italic> The Bank Commissioner is not a necessary party in a suit to quiet title on the strength of a resale tax deed to a tract of land which was part of the assets of a bank liquidated by the Bank Commissioner before the tax resale and the issuance of the tax deed.

(Syllabus.) INSURANCE — <italic>Action on life insurance policy — Held,</italic> <italic>nonforfeiture provisions stipulated in policy control, and</italic> <italic>insured entitled only to reduced amount of paid-up endowment</italic> <italic>insurance according to terms of policy.</italic> Insured held life insurance policy which stipulated that if same lapsed for failure to pay premiums after three full years premiums had been paid, within thirty-one days following due date of unpaid premiums, insured could surrender policy and be entitled to either of the following options: (1) a cash surrender value; (2) paid-up endowment insurance in amount cash value of policy would purchase; and further provided if insured did not surrender policy and elect either option, then policy would automatically be continued as a policy of paid-up endowment insurance as provided in second option. Insured made default in premium payment and died more than thirty-one days thereafter. Held: nonforfeiture<page_number>Page 348</page_number> provisions stipulated in policy control, and insured or his beneficiary entitled only to reduced amount of paid-up endowment insurance according to terms of the policy.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Industrial Commission not deprived</italic> <italic>of jurisdiction to make an award against Special Indemnity</italic> <italic>Fund by approval of joint petition.</italic> Approval of joint petition of injured employee and employer for settlement of claims against employer does not deprive the Industrial<page_number>Page 357</page_number> Commission of jurisdiction to make an award against the Special Indemnity Fund under provisions of 85 O.S.Supp. 1947 § 171[<cross_reference>85-171</cross_reference>] et seq. 2. SAME — <italic>Duty of court to weigh evidence and make independent</italic> <italic>finding on issue of whether claimant a physically impaired</italic> <italic>person.</italic> It is the duty of this court to weigh the evidence and make independent finding on the issue of whether claimant is a physically impaired person as defined by 85 O.S.Supp. 1947 § 171[<cross_reference>85-171</cross_reference>]. 3. SAME — <italic>Order vacated where findings and conclusions to</italic> <italic>indefinite for judicial interpretation.</italic> Where the findings of fact and conclusions of law of the State Industrial Commission are too indefinite and uncertain for judicial interpretation, this court, on appeal, will vacate the order for further proceedings.

(Syllabus.) 1. TRIAL — <italic>Error to instruct on issue not raised by pleadings.</italic> The trial court commits error in instructing the jury on issues not raised by the pleadings and evidence in the case. 2. SAME — <italic>Error in failure of court on its own motion to</italic> <italic>properly instruct jury on decisive issues of case.</italic> It is the duty of the trial court on its own motion to properly instruct the jury upon the decisive issues made by the pleadings and the evidence introduced at the trial, and a failure so to do constitutes error. 3. DAMAGES — <italic>Action to recover damages for breach of warranty —</italic> <italic>Evidence insufficient to sustain verdict and judgment.</italic> Record examined. Held, evidence insufficient to support the verdict and judgment<page_number>Page 367</page_number> under the theory on which the case was submitted.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Where municipal bonds voted,</italic> <italic>proposition contained in ballot constitutes authority for</italic> <italic>issuance of bonds and expenditure of funds.</italic> Where municipal bonds are voted the proposition contained in the ballot constitutes the authority of the municipal officers for the issuance of the bonds and for the expenditure of the funds obtained by the sale thereof. 2. SAME — <italic>Proposed expenditure of bond proceeds not enjoined</italic> <italic>where legality of election not called in question and is</italic> <italic>incontestable.</italic> A proposed expenditure of funds, obtained from the sale of bonds issued on authority of an election held therefor for a purpose within that declared in the ballot voted, will not be enjoined upon the ground the voters understood the votes were being cast for a different or more limited purpose, where the legality of such election is not called in question or is uncontestible.

(Syllabus.) APPEAL AND ERROR — <italic>Order denying motion for judgment non</italic> <italic>obstante veredicto held not a final order, and not appealable</italic> <italic>prior to entry of final judgment.</italic> Where, in an action for damages, verdict is returned for plaintiff and both parties<page_number>Page 371</page_number> file motions for new trial, and the court denies motion for judgment non obstante veredicto but fails to enter judgment upon the verdict, the order denying motion for judgment non obstante veredicto is not a final order and may not be appealed from prior to entry of final judgment, or of order denying motion for new trial.

(Syllabus.) 1. BROKERS — <italic>Broker entitled to commission, where he produces</italic> <italic>purchaser ready, willing and able to buy land listed with him</italic> <italic>on terms agreed upon.</italic> Where land is listed for sale with a broker, and the broker finds a purchaser who is ready, willing and able to buy the land on the terms it has been listed with the broker, and the owner refuses to comply with his contract, the broker has earned his commission. 2. SAME — <italic>Question of fact for jury, where evidence conflicting,</italic> <italic>whether broker produced purchaser who was ready, willing</italic><page_number>Page 372</page_number> <italic>and able to buy upon terms authorized by seller.</italic> Where in an action by a real estate broker to recover his commission against an owner who has listed land for sale with him, the evidence is in conflict as to the terms under which the sale could be made, the question as to whether the broker produced a purchaser who is ready, willing and able to buy upon terms authorized by the seller is one of fact for the jury.

(Syllabus.) CORPORATIONS — <italic>Right to intervene in pending action properly</italic> <italic>denied where party held to have no interest in company.</italic> Where by the decision of this court it is held that a party applying for leave to intervene in behalf of a corporation in a pending action is not the owner of stock in such corporation and has no interest therein, the judgment of the lower court denying the right of such party to intervene in such action will be affirmed.

(Syllabus.) 1. TRUSTS — <italic>When "resulting trust" arises.</italic> A resulting trust is one which arises where the legal estate in property is disposed of, conveyed or transferred, but the intent appears, or is inferred from the terms of the disposition, or from the accompanying facts and circumstances, that the beneficial interest is not to go with the legal title, or to be enjoyed by the holder thereof. 2. SAME — <italic>Action on life insurance policy — Trustee's interest</italic> <italic>in fund found sufficiently antagonistic to minor to justify</italic> <italic>court in directing payment to legally appointed guardian.</italic> Where, in an action by plaintiff as named beneficiary to recover the proceeds of a life insurance policy, and upon plea in intervention by guardian of insured's minor daughter it was determined that plaintiff was named beneficiary to hold proceeds of the policy in trust for such minor, trustee's interest in fund was sufficiently antagonistic to minor as to justify trial court in directing payment of fund to minor's legally appointed guardian.

(Syllabus.) 1. DEEDS — <italic>Deed held to convey present title to land and is a</italic> <italic>valid deed.</italic> Record examined; held, contention of plaintiff that the deed here under consideration is ineffective to convey title in that it was not to take effect until after the death of grantor cannot be sustained. 2. SAME — <italic>Condition precedent.</italic> A condition precedent is one that must be performed before the estate can vest or be enlarged. 3. SAME — <italic>Waiver by grantor of performance of condition</italic> <italic>precedent in deed.</italic> The grantor may waive the performance of a condition precedent in the deed and where he voluntarily delivers the deed to the grantee and permits him to take possession and control of the premises and continue to occupy and control the same for several years and until his death without insisting upon performance of the condition, he thereby waives such condition.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — <italic>Duties of surviving</italic> <italic>administrator — County court without authority to appoint</italic> <italic>successor of deceased co-administrator.</italic> Under the provisions of 58 O.S.A. § 220 [<cross_reference>58-220</cross_reference>], when two persons have been appointed as administrators of an estate and one of such<page_number>Page 383</page_number> persons dies . . . the remaining . . . administrator must proceed to complete the administration, and the county court is without authority to appoint a successor to the deceased administrator, upon petition of heirs of the estate. 2. APPEAL AND ERROR — <italic>Surviving administrator who has given</italic> <italic>bond, with sureties, according to law, not required to give</italic> <italic>undertaking on appeal.</italic> Where the county court has appointed two persons as joint administrators of the estate of a decedent, and one of them dies, and the county court thereafter makes an order appointing a successor to such deceased administrator, an appeal from such order by the surviving administrator is an appeal in the interest of the estate, and where surviving administrator under the authority of 12 O.S.A. § 985 [<cross_reference>12-985</cross_reference>] and 58 O.S.A. § 740 [58-740] has given bond, with sureties, according to law, such administrator is not required to give an undertaking on appeal or proceedings in error.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Assignments of error not presented in</italic> <italic>briefs treated as abandoned.</italic> Assignments of alleged error not presented in the briefs will be treated as abandoned. 2. GUARDIAN AND WARD — <italic>Statutes apply only where application</italic> <italic>made by a guardian for removal of property from state.</italic> 58 O.S. 1941 §§ 864[58-864] and 865 apply only to proceedings where an application is made by a guardian for removal from this state of some part of the estate of the ward. 3. PARTIES — <italic>Defect of parties plaintiff — Waiver by failure to</italic> <italic>urge in pleading.</italic> The claim that a plaintiff is without legal capacity to sue must be raised by demurrer or answer, and where the question is not raised, either by demurrer or answer, it is waived.

(Syllabus.) 1. NEGLIGENCE — <italic>Negligence as question for jury.</italic> In cases involving the question of negligence, the rule is now settled that, when a given state of facts is such that reasonable men may fairly differ upon the question as to whether or not there was negligence, the determination of the matter is for the jury. 2. TRIAL — <italic>Error to instruct jury that a certain state of facts</italic> <italic>and circumstances constitute contributory negligence.</italic> The defense of contributory negligence is at all times a question of fact for the jury, under section 6, article 23 of the Oklahoma Constitution, and it is error for the court to instruct the jury that a certain state of facts or circumstances constitute contributory negligence. 3. SAME — <italic>Action for personal injuries — Erroneous instruction</italic> <italic>that plaintiff was guilty of negligence as matter of law, if</italic> <italic>he failed to keep proper lookout for his own safety.</italic> In an action brought by plaintiff, a pedestrian, against defendant, an automobile driver, for injuries resulting to plaintiff who was struck by defendant's automobile while crossing the street; held, that an instruction by which the jury were told that if they found from the evidence that plaintiff failed to keep a proper lookout for his own safety, and by so doing could have avoided the accident, then that would be negligence on the part of the plaintiff, was erroneous.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to sustain</italic> <italic>award.</italic> An award of the State Industrial Commission will not be disturbed by this court where there is competent evidence reasonably tending to support the same. 2. SAME — <italic>Compensable disability attributable to condition of</italic> <italic>heart.</italic> Disability attributable to a condition of the heart is compensable if traceable to an accidental personal injury sustained in the course of and arising out of the hazardous employment covered by the act. 3. SAME — <italic>Authority of Industrial Commission to excuse failure</italic> <italic>to give statutory notice of injury.</italic> Under the provisions of 85 O.S. 1941 § 24[<cross_reference>85-24</cross_reference>], the State Industrial Commission is authorized<page_number>Page 396</page_number> to excuse the giving of the statutory notice either on the ground that for some reason the injured employee was not able to give the same or that the insurance carrier, or the employer, as the case may be, has not been prejudiced thereby.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Town not guarantor of representations</italic> <italic>contained in special sewer district warrant issued by board of</italic> <italic>trustees — No recovery against town for breach of warranty.</italic> An incorporated town is not guarantor of the representations contained in a special sewer district warrant issued by the board of trustees of the town, and a failure of such representations does not give rise to a cause of action against the town.

(Syllabus.) 1. WILLS — <italic>Testamentary capacity — Presumption of sanity.</italic> In a will contest on the ground of lack of testamentary capacity, the presumption of sanity will be indulged, and when the will appears to have been rationally executed, such presumption and apparently rational acts amount to evidence of testamentary capacity. 2. SAME — <italic>"Undue influence" invalidating</italic> will. Undue influence such as will invalidate a will must be something which destroys the free agency of the testatrix at the time the instrument is made and, in effect, substitutes the will of another for that of the testatrix; and the mere suspicion that undue influence might have been brought to bear does not justify the setting aside of a will. 3. SAME — APPEAL AND ERROR — <italic>Review of will case — Sufficiency</italic> <italic>of evidence.</italic> A will contest is a case of purely equitable cognizance, and on appeal this court will examine the entire record and weigh the evidence, but the findings and judgment of the trial court will not be disturbed unless clearly against the weight of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of frivolous appeal.</italic> Where a motion to dismiss is filed upon the ground that the appeal is without merit and for delay only, and the court calls for a response to such motion and none is filed, and no excuse offered for such failure, this court may, in its discretion, dismiss the appeal.

(Syllabus.) 1. JUDGMENT — <italic>Construction — Effect to be given every part</italic> <italic>including necessary legal implications.</italic> In construing the judgment of a court effect should be given to every word and part thereof, including such effect and consequences that follow the necessary legal implications of its terms, although not expressed. 2. MORTGAGES — <italic>Express waiver of "benefits of homestead</italic> <italic>exemption and stay laws" not waiver of appraisement.</italic> The express waiving "of all benefits of the homestead exemption and stay laws of the State of Oklahoma" is not equivalent to waiving appraisement, and that language<page_number>Page 418</page_number> in a mortgage does not constitute a waiver of appraisement. 3. JUDGMENT — <italic>District court judgment, prima facie valid, can be</italic> <italic>attacked only directly by appeal or by motion to vacate or</italic> <italic>modify within three years.</italic> Judgments of the district courts of this state prima facie valid upon their face can be successfully attacked only directly by an appeal within the time and manner provided by law or by motion or petition to vacate or modify the same as provided under Tit. 12 O.S. 1941 § 1031[<cross_reference>12-1031</cross_reference>], during the three years following the rendition of a judgment, and not afterward, unless there be special reasons in the particular case why the statutory remedy is inadequate. 4. SAME — <italic>Judgment directing sale and order confirming same,</italic> <italic>held prima facie valid upon their face.</italic> Record examined, and held: the judgment directing sale, the sale had and order confirming the same are each prima facie valid upon the face of the record.

(Syllabus.) 1. PARTNERSHIP — NEW TRIAL — <italic>Action for dissolution of</italic> <italic>partnership and accounting — Jurisdiction of court to</italic> <italic>authorize receiver's sale, upon proper application, during</italic> <italic>pendency of motion for new trial.</italic> In action between partners involving specific property and lien claims thereon, and after judgment, the pending of motion for new trial in main action generally does not deprive court of jurisdiction to hear receiver's application to sell property in his hands which is involved in the action, and to authorize and thereafter confirm receiver's sale of property all after proper notice to and hearing of all the parties. 2. SAME — <italic>Jurisdiction to sell certain property at receiver's</italic> <italic>sale with return of proceeds to court for proper</italic> <italic>distribution.</italic> When judgment has been rendered dissolving a partnership, decreeing certain money judgment in favor of defendant, decreeing certain property to be partnership property with a specified lien thereon in favor of plaintiff, and when various items of property of the partnership are in the court's custody through a duly appointed receiver, the pendency of plaintiff's motion for a new trial does not deprive the court of jurisdiction to hear the receiver's application to sell the property, or to order such sale on proper hearing, or on proper hearing to confirm such sale and direct holding of the proceeds for proper distribution by the court. 3. SAME — <italic>Subsequent motion to vacate receiver's sale, after</italic> <italic>confirmation, properly overruled, when based on contention</italic> <italic>sale void for lack of jurisdiction.</italic> Under the circumstances set out in paragraphs one and two, when receiver's sale is confirmed on proper hearing without objection or exception, it is not error to overrule subsequent motion to vacate the receiver's sale based on the contention the sale is void for lack of jurisdiction.

(Syllabus.) 1. SET-OFF AND COUNTERCLAIM — <italic>Claim arising under contract.</italic> In an action against one upon a contract, he may offset or plead as a defense thereto any claim arising to him by virtue of any contract with the one instituting the same. 2. SAME — <italic>Test of validity.</italic> The validity of a counterclaim or set-off is to be determined by the inquiry, whether or not the substance of the facts stated would constitute a cause of action on behalf of the defendant against the plaintiff, if the plaintiff had not sued defendant. 3. PLEADING — <italic>Striking of answer and cross-petition where</italic> <italic>insufficient allegation to constitute counterclaim or</italic> <italic>set-off.</italic> Record examined, and held: That the trial court did not err in striking the answer and cross-petition of the defendant as there was not a sufficient allegation contained therein to constitute a counterclaim or set-off against the plaintiff's cause of action.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence in jury-waived case</italic> <italic>to support judgment based thereon.</italic> In a law action triable to a jury, wherein jury is waived, the findings of the trial court will be given the same weight and consideration by this court as those of a jury in its verdict; if there is competent evidence in the record reasonably tending to support such findings the judgment based thereon will be affirmed.

(Syllabus.) 1. NEGLIGENCE — <italic>Existence as question for jury.</italic> What constitutes negligence is for the jury, unless facts are such that all reasonable men must draw the same conclusion. 2. DAMAGES — <italic>Facts and circumstances determine whether verdict</italic> <italic>excessive.</italic> In determining whether a verdict is excessive, each case must be governed chiefly by its own facts and circumstances.

(Syllabus.) 1. SALES — <italic>To constitute an express warranty, no particular</italic> <italic>language necessary — Positive affirmation of fact as</italic> <italic>distinguished from matter of opinion.</italic> In order to constitute an express warranty, no particular language is necessary. It is not required that it shall be in writing, or be made in specific terms; and it is not necessary that the word "warrant" or "warranty" shall be used. Any direct and positive affirmation of a matter of fact, as distinguished from a mere matter of opinion or judgment, made by the seller during the sale negotiations and as a part of the contract, designed or intended by the seller to induce the purchaser to buy, and actually relied upon by the purchaser in making the purchase, will be deemed to be a warranty. 2. SAME — <italic>Warranty by seller that herd of cows at time of sale</italic> <italic>were good breeders and producers, breached by defects</italic> <italic>rendering such animals less serviceable, though defects not</italic> <italic>fully developed at time of sale.</italic> A warranty arising from statements or affirmations made by the seller of a herd of 103 cows at the time of sale that said cows were good breeders and producers; that said herd of 116 cows had 115 calves the year before, admittedly made to induce the purchaser to buy said cows for breeding purposes, implied that the cows so purchased by plaintiff were fit for breeding purposes; said warranty means that they were healthy and capable of procreation, that they would reproduce the kind and variety they were represented to be, and where such cows are afflicted with Bangs disease which rendered them unfit for breeding purposes, or impairs, or in its progress will impair the animals' natural usefulness for the purpose for which they were purchased, such warranty is breached by any defects which render such animals permanently less serviceable, although the defect may not be fully developed at the time of sale. 3. SAME — <italic>Province of jury as to whether facts or affirmations</italic> <italic>amount to express warranty.</italic> If the facts or affirmations relied on to prove an express warranty rest wholly in parol, it is the province of the jury to determine whether they amount to an express warranty. 4. EVIDENCE — <italic>Statement of veterinary that he examined cattle</italic> <italic>eight months after sale and found them afflicted with Bangs'</italic> <italic>disease, held not inadmissible as too remote.</italic> In action for damages for breach of an express verbal warranty that a herd of 103 head of cows were good breeders and producers, statement of a veterinary that eight months after the sale of said cattle that he examined 10 head of said cattle picked at random from the herd, and found them afflicted with Bangs disease, is not inadmissible as too remote where there was evidence in case that said cattle immediately after the sale began to calve prematurely, and so continued until 43 cows lost their calves, and that such premature calving results when cows are afflicted with Bangs disease. 5. SAME — <italic>Discretion of trial court as to whether evidence too</italic> <italic>remote to be admissible.</italic> Whether evidence is too remote to be admissible is determined by trial court in its discretion. 6. APPEAL AND ERROR — <italic>Sufficiency of evidence in law action to</italic> <italic>support jury's verdict and judgment based thereon.</italic> Where, in actions at law, disputed questions of fact are submitted to the jury, the<page_number>Page 463</page_number> jury's verdict and judgment based thereon will not be disturbed on appeal where there is any evidence reasonably tending to support it.

(Syllabus.) 1. APPEAL AND ERROR — JUDGES — <italic>Discretion of trial court as to</italic> <italic>application for change of venue or for disqualification of</italic> <italic>judge.</italic> An application filed in a civil case to obtain a change of venue or disqualify the judge on the ground of prejudice or bias is addressed to the sound discretion of the judge, and the ruling thereon will not be reversed on appeal, unless there appears to have been a clear abuse of such discretion. 2. TRIAL — <italic>When verdict should be directed in favor of</italic> <italic>defendant.</italic> Where plaintiff wholly fails to prove a cause of action against the defendant, a motion for directed verdict in favor of the defendant should be sustained. 3. JUDGMENT — <italic>Conclusiveness of final judgment between parties.</italic> Final judgment is conclusive between parties as to matters litigated and as to matters germane to issues which might have been litigated.

Milton Roe Sabin and Bertha Florence Sabin filed an application for leave to file a second petition for a rehearing and the Oklahoma Farmer's Union and the Oklahoma<page_number>Page 469</page_number> State Federation of Labor suggested that the decision theretofore rendered might adversely affect state revenues or might go contrary to the mortgage tax laws of the state, and sought to intervene. Application to file second petition for rehearing denied and applications for intervention denied. Supplementing opinions <cross_reference>202 Okla. 468</cross_reference>, <cross_reference>214 P.2d 445</cross_reference>, 448.

(Syllabus.) 1. PROHIBITION — <italic>Where writ available against inferior courts.</italic> Prohibition will only lie where the lower tribunal is without jurisdiction or is about to make an unauthorized use of judicial force or power. 2. SAME — <italic>Prohibition as extraordinary writ not to be</italic> <italic>substituted for appeal.</italic> Prohibition being an extraordinary writ, resort to it cannot be had when the ordinary and usual remedies are available, and the writ cannot take the place of, or be substituted for, appeal. 3. MUNICIPAL CORPORATIONS — <italic>Right of duly elected city marshal</italic> <italic>removed from office by city council to appeal from such order</italic> <italic>to district court.</italic> Where a duly elected city marshal is removed from office by the city council pursuant to the provisions of 11 O.S. 1941 §§ 572[11-572] and 577, he is, by 12 O.S. 1941 § 951[<cross_reference>12-951</cross_reference>] [<cross_reference>12-951</cross_reference>], given the right of appeal from such order of removal to the district court.

(Syllabus.) NEGLIGENCE — TRIAL — <italic>Issue of negligence properly submitted to</italic> <italic>jury where evidence tends to establish negligence.</italic> It is proper to submit issue of negligence to the jury where there is evidence reasonably tending to establish negligence.

(Syllabus.) COURTS — <italic>Appeal dismissed where appellant without capacity to</italic> <italic>prosecute appeals.</italic> Where the right to prosecute and maintain an appeal is necessarily dependent upon the alleged ownership of stock in a corporation, the appeal will be dismissed upon the final determination by this court in a companion case that the appellant owns no stock in said corporation.

(Syllabus.) 1. MORTGAGES — <italic>Burden of proof that instrument absolute on its</italic> <italic>face was intended as mortgage.</italic> The burden is upon a plaintiff, seeking to have a conveyance of real estate, absolute in form, declared a mortgage or security for the payment of a debt, to establish the character of such instrument as a mortgage or as a conveyance for security only by clear, unequivocal and convincing evidence. 2. APPEAL AND ERROR — <italic>Conclusiveness of findings on conflicting</italic> <italic>evidence in equity case.</italic> In an action of equitable cognizance, where the evidence is conflicting, the finding thereon of the trial court will not be disturbed unless clearly against the weight thereof. 3. WITNESSES — <italic>Party to transaction with decedent incompetent to</italic> <italic>testify in own behalf.</italic> By the plain provisions of 12 O.S. 1941 § 384[<cross_reference>12-384</cross_reference>], no party to a civil action is permitted to testify in his own behalf, where objection to his competency as a witness is duly made, in respect to any transaction or communication had personally by such party with a deceased person, when the adverse party is the executor, administrator, heir at law, next of kin, surviving partner or assignee of such deceased person. 4. SAME — <italic>Competency — Husband and wife — Effect of termination</italic> <italic>of marriage relation.</italic> 12 Okla. St. Ann. § 385 does not prevent one spouse, after the marriage relation has terminated, from testifying in a case in which the other is a party as to independent facts within the knowledge of the witness, and not coming within the definition of privileged communications. 5. APPEAL AND ERROR — <italic>Review — Harmless error in ruling on</italic> <italic>evidence.</italic> This court will not reverse a cause for the erroneous rejection of evidence unless it appears to the court that such rejection has probably resulted in the miscarriage of justice, or that the trial court would have reached a different conclusion if the evidence rejected had been admitted and considered by him.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Proceeding to review order of</italic> <italic>Industrial Commission must be commenced within</italic> 20 <italic>days after</italic> <italic>copy of order is sent to parties affected.</italic> Under the provisions of 85 O.S. 1941 § 29[<cross_reference>85-29</cross_reference>], it is required that a proceeding to review<page_number>Page 497</page_number> an order of a trial commissioner of the State Industrial Commission be filed in the Supreme Court within 20 days after a copy of the order is sent to the affected parties. Where such proceeding is not so commenced, this court is without jurisdiction to review the order.

(Syllabus.) JUDGMENT — EXECUTION — <italic>Failure to issue execution within</italic> <italic>statutory period — Effect of transcribing judgment lien to</italic> <italic>another county.</italic> Where a defendant fails to issue execution within the period prescribed in 12 Okla. St. Ann. § 735, thereby allowing the judgment to become dormant in the county in which it was rendered, said defendant may not enforce a judgment lien transcribed to another county in an action pending but not tried at the time the judgment became dormant.

(Syllabus.) 1. APPEAL AND ERROR — PLEADING — <italic>Action for commission and</italic> <italic>expenses in collecting judgment — Motion to strike, designed</italic> <italic>to require plaintiff to elect, should have been sustained.</italic> Where K. sues L. for a commission and expenses incurred in an attempt to collect a judgment for L., upon the theory of a contract through L.'s agent B., and upon the theory of ratification by L., and further alleges a contract with L. individually, held: L.'s motion to strike and other pleadings designed to require K. to elect should have been sustained. 2. SAME — <italic>Error in overruling motion to strike exhibit from</italic> <italic>petition, consisting of voluntary, unverified statement of</italic> <italic>alleged agent.</italic> Where plaintiff seeks recovery for services rendered under a contract claimed to have been entered into between plaintiff and defendant, the defendant acting by and through an agent, it is error to overrule a motion to strike from the petition an exhibit attached thereto consisting of a voluntary, unverified statement of the alleged agent concerning the merits of plaintiff's claim. 3. WITNESSES — <italic>Cross-examination proper as to manner and form of</italic> <italic>performance of services, etc.</italic> On cross-examination of a plaintiff claiming compensation for services rendered and expenses in rendering said services, it is<page_number>Page 518</page_number> material and proper to direct questions against the claim and manner and form of performance of such services and as to how the alleged services were performed. 4. CONTRACTS — <italic>Competency of testimony to prove services were</italic> <italic>rendered by another party than plaintiff.</italic> Where plaintiff sues for compensation for services rendered in obtaining information designed to assist the defendant in the collection of an outstanding judgment against a third party, it is proper for the defendant to prove that the services claimed to have been rendered by plaintiff were in fact rendered by another party, and not by plaintiff.

(Syllabus.) CORPORATION — <italic>Denial of foreclosure of mortgages reversible</italic> <italic>error, where party defending had no interest in company and no</italic> <italic>right to defend on behalf of corporation — Denial of</italic> <italic>attorneys' fees not error.</italic> R.H. Siegfried Company brought an action in the district court of Tulsa county against Tankersley Investment Company, and thereafter in the same action Mary Tankersley intervened and sought the foreclosure of mortgages against the property of Tankersley Investment Company. One Earl Tankersley also intervened in said action, claiming the right to do so solely by virtue of his alleged ownership of stock in Tankersley Investment Company, and defended the foreclosure proceedings brought by Mary Tankersley. The trial court adjudged Earl Tankersley to be the owner of stock in Tankersley Investment Company, permitted him to defend the foreclosure of the mortgages, and denied foreclosure. It also refused to allow attorneys' fees to the attorneys representing Earl Tankersley in said foreclosure proceeding. Mary Tankersley appealed from the judgment denying foreclosure of her mortgages, and Earl Tankersley individually, and on behalf of Tankersley Investment Company, appealed from that part of the judgment denying attorneys' fees to his attorneys. While these appeals were pending, this court, in an appeal directly involving the ownership of the corporate stock, held that Earl Tankersley was not the owner of any stock in Tankersley Investment Company, and had no interest therein. Since he had no interest whatever in Tankersley Investment Company, he had no right to defend the foreclosure proceeding on behalf of said company, and the judgment of the trial court denying the foreclosure of Mary Tankersley's mortgages was reversible error. The judgment denying the allowance of attorney's fees to the attorneys in such case was not erroneous.

(Syllabus.) 1. INSURANCE — <italic>Question of fact whether insured in "good health"</italic> <italic>when policy delivered.</italic> Whether a person is in good health, as that term is used in its ordinary meaning, at the time of the delivery of an insurance policy, must depend upon the facts and circumstances of each given case, and cannot be determined by any general rule. Such questions are for the determination of a jury, or the court sitting as a jury as the trier of the facts. 2. SAME — <italic>What constitutes "good or sound health."</italic> The term "good health" or "sound health" within the meaning of the provision contained in a life insurance policy that same<page_number>Page 532</page_number> shall not become operative unless the applicant is in good health at the time of delivery of the policy, means freedom from any serious disease such as one that seriously affects the general soundness of the system, or that has a direct tendency to shorten life.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Garage must be shown to have</italic> <italic>employed two or more persons, and to be a workshop, to make</italic> <italic>garage owner secondarily liable to injured employee of</italic> <italic>independent contractor.</italic> The operation of a garage is not designated as one of the employments that are covered by name in the Workmen's Compensation Act, and to make a garage owner secondarily liable for an injury to the employee of his independent contractor, it must be shown that the garage employed two or more persons, and that the garage was a workshop. 2. SAME — <italic>Duty of Industrial Commission as to findings of fact</italic> <italic>and conclusions of law.</italic> It is the duty of the State Industrial Commission to make specific findings of ultimate facts responsive to the issues, as well as conclusions of law upon which an order is made granting or denying an award of compensation to a claimant.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Motion for new trial on question of fact</italic> <italic>arising upon motion unnecessary for review of order.</italic> The filing and determination of a motion for new trial on a contested question of fact not arising on the pleadings, but upon a motion, is unnecessary to authorize this court to review the order made upon such hearing. 2. SAME — <italic>Statutory time for service of case-made.</italic> Where the case-made is not served within fifteen days after the judgment is rendered, or within the time fixed by a timely and valid order of the lower court extending the time for service of case-made, this court is without jurisdiction to review the attempted appeal by case-made.

(Syllabus.) APPEAL AND ERROR — <italic>Time for appeal from action of district court</italic> <italic>in refusing to discharge receiver.</italic> In order to review the action of the district court in refusing to discharge a receiver, the petition in error must be filed in this court within thirty days, as provided by 12 O.S. 1941 § 1558[<cross_reference>12-1558</cross_reference>].

(Syllabus.) 1. COVENANTS — <italic>Restrictions strictly construed.</italic> Restrictions on the use of real property must be strictly construed, and will not be extended on the one hand or limited on the other, but strictly enforced in a proper case. 2. SAME — <italic>Language in plat restrictions limits use of buildings</italic> <italic>to residential purposes only.</italic> The language "all buildings in said addition shall be for residence purposes only," contained in the plat restrictions covering an addition to a city, restricts the use of residences constructed in said addition solely to residential purposes where there is no provision in the restrictions modifying or qualifying such language. 3. ESTOPPEL — <italic>Essential that party be misled to his injury to</italic> <italic>create estoppel in pais.</italic> In order to create an estoppel in pais, the party pleading it must have been misled to his injury; that is, he must have suffered a loss of a substantial character, or have been induced to alter his position for the worse in some material respect. 4. EQUITY — <italic>Laches in legal significance.</italic> Laches, in legal significance, is not mere delay, but delay that works a disadvantage to another.

(Syllabus.) FRAUDULENT CONVEYANCES — <italic>Owner and holder of preferred stock of</italic> <italic>corporation not creditor within meaning of Bulk Sales Law.</italic> The owner and holder of preferred capital stock of a corporation is not a creditor thereof within the meaning of the Bulk Sales Law. (24 O.S. 1941 § 71.[<cross_reference>24-71</cross_reference>]. [<cross_reference>24-71</cross_reference>].)

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to sustain</italic> <italic>award of Industrial Commission.</italic> In an action to review an award of the Industrial Commission, this court will not review conflicting evidence and determine the weight and value thereof as to the extent of the injury, and, where an award of the commission is supported by competent evidence, the same will not be disturbed by this court on review.

(Syllabus.) 1. NEGLIGENCE — <italic>Res ipsa loquitur rule stated.</italic> Res ipsa loquitur is a rule of evidence whereby negligence of the alleged wrongdoer may be inferred from the mere fact that the accident happened, provided the character of the accident and the circumstances attending it lead reasonably to the belief that, in the absence of negligence, it would not have occurred, and the thing which caused the injury is shown to have been under the management and control of the alleged wrongdoer. 2. SAME — <italic>When doctrine is applicable.</italic> The doctrine of res ipsa loquitur is applicable in cases based on the alleged negligence of a manufacturer of carbonated beverages toward one injured by the explosion of a bottle, if the plaintiff can show that the bottle was handled with ordinary care by all persons touching it after it left the manufacturer's hands and that its condition had undergone no change. 3. SAME — <italic>Question for trier of facts whether inference of</italic> <italic>negligence rebutted by evidence.</italic> When a defendant produces evidence to rebut inference of negligence which arises upon application of doctrine of res ipsa loquitur, it is ordinarily a question of fact for trier of facts to determine whether the inference has been dispelled. 4. APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence to</italic> <italic>sustain judgment in jury-waived case.</italic> Where a jury is waived in a cause triable to a jury and tried to the court, a judgment based on conflicting evidence which reasonably tends to support the judgment will not be disturbed on appeal.

(Syllabus.) MECHANICS' LIENS — <italic>Release of lien — Depositor not entitled to</italic> <italic>interest.</italic> Under 42 O.S.A. § 147 [<cross_reference>42-147</cross_reference>], relating to release of mechanics' and materialmen's liens by deposit in court of cash in amount equal to lien claimed, depositor is not entitled to interest on difference between amount deposited and amount of lien finally determined.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Conclusiveness of Industrial</italic> <italic>Commission's finding as to question of fact.</italic> In proceedings before the State Industrial Commission the cause and extent of disability arising from an accidental injury are questions of fact for the State Industrial Commission, and where there is competent evidence reasonably tending to sustain the commission's findings, an award based thereon will not be disturbed on review. 2. SAME — <italic>Discretion of Industrial Commission as to appointment</italic> <italic>of physician to examine claimant — Refusal to appoint</italic> <italic>physician not an abuse of discretion.</italic> The matter of appointment of physicians by the State Industrial Commission to examine a claimant is largely within the discretion of the State Industrial Commission. Under the record herein it was not an abuse of discretion to refuse to appoint a physician to examine claimant.

(Syllabus.) 1. DEEDS — <italic>Test of mental capacity of grantor to execute valid</italic> <italic>deed.</italic> The test of mental capacity of a grantor to execute a valid deed is that he have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting; that is, that a deed when executed and delivered divests him of title to the land described in the deed, and vests title thereto in the grantee named in the deed. 2. SAME — <italic>Evidence of incapacity must be clear, satisfactory and</italic> <italic>convincing.</italic> The incapacity to make a deed must ordinarily be established by a preponderance of the evidence or by clear, satisfactory and convincing evidence. 3. SAME — <italic>Capacity of one of weak mentality to execute valid</italic> <italic>conveyance during lucid intervals, when capable of</italic> <italic>understanding nature and effects of his acts.</italic> A person of weak mentality, but not entirely without understanding, and whose incompetency had not been judicially determined, may be weak from old age and physical infirmities; he may suffer lapses of memory and sense of direction; he may be irritable and irrational at times and changeable in his views upon certain subjects; he may suffer eccentric hallucinations and irrational views when sick and under the influence of sedatives, and yet be capable of executing a valid conveyance or other contract during lucid intervals in which he is capable of understanding the nature and effect of his acts. 4. SAME — <italic>Evidence of mental capacity at immediate time of acts</italic> <italic>in question controlling.</italic> Evidence of mental condition, before and subsequent to the date of the acts complained<page_number>Page 672</page_number> of, is admissible and should be considered in determining mental capacity on a given date, but evidence of mental capacity at the immediate time of the acts questioned is controlling, where mental incompetency has not been judicially determined, and he is not a person wholly devoid of understanding. 5. DEEDS — <italic>Conveyance of property in consideration of care and</italic> <italic>support for life — Adequacy of consideration existing at time</italic> <italic>of contract controlling.</italic> An agreement to care for and support a grantor for the remainder of his life, in consideration of a conveyance of land, is an adequate consideration, in the absence of fraud and undue influence, and where not so grossly inadequate as to shock the conscience. Adequacy and sufficiency of consideration should be judged by circumstances and conditions existing at the time the contract is made, and not by subsequent and unforeseen events, for which neither party to the contract is responsible. 6. SAME — <italic>Substantial compliance with terms of contract for</italic> <italic>support and maintenance all that is required — Failure to</italic> <italic>strictly comply not breach of contract.</italic> Substantial compliance with the terms of a contract for support and maintenance, entered into as a consideration for a conveyance, is all that is required of a grantee; and where subsequent events arise which render exact compliance impossible or inadvisable for the best interests of the grantor, the failure of the grantee to comply strictly does not constitute such a breach of contract or failure of consideration as will justify cancellation of the conveyance. 7. SAME — <italic>Evidence held to overcome presumption of fraud from</italic> <italic>fiduciary relationship of parties.</italic> The presumption of invalidity of deed due to fiduciary relationship may be overcome by clear and convincing evidence that the transaction was fair, voluntary, and free from any taint of fraud, coercion or over-reaching. 8. APPEAL AND ERROR — <italic>Review of equity case — Disposition of</italic> <italic>cause where judgment clearly against weight of evidence.</italic> In a case of equitable cognizance, this court will weigh the evidence, and if the judgment below is clearly against the weight thereof, will enter or cause to be entered the judgment that the trial court should have rendered.

(Syllabus.) 1. TRIAL — <italic>Failure to instruct on measure of damage not error</italic> <italic>where instruction not requested and issue not presented by</italic> <italic>pleadings.</italic> Where no instruction on the measure of damage is requested and no issue on the question is presented by the pleadings, the failure to give such an instruction is not error. 2. APPEAL AND ERROR — <italic>Waiver of demurrer to evidence and failure</italic> <italic>to a directed verdict.</italic> If a defendant does not demur to the evidence and does not move for a directed verdict or move to strike certain items set out in the petition on the ground that they are not sustained by the evidence, it cannot be urged against an adverse verdict that the evidence was insufficient to establish a right of recovery in the plaintiff.