Volume 203 — Oklahoma Reports

(Syllabus.) 1. ELECTIONS — HOLIDAYS — <italic>Statute referring to acts authorized</italic> <italic>to be performed on holidays not applicable to right or</italic> <italic>privilege of voting.</italic> The provision of 25 O.S. 1941 Supp. § 82.1 [<cross_reference>25-82.1</cross_reference>]: "Any act authorized, required or permitted to be performed on a holiday . . . may be performed on the next succeeding business day . . ." refers to commercial, industrial, and professional engagements and has no reference to the right or privilege of voting. 2. SAME — <italic>Statute fixing first Tuesday in July as date of state</italic> <italic>primary election not changed by holiday statute.</italic> The statute which fixes the first Tuesday in July as the date for the state primary election (26 O.S. 1941 Supp. § 113 [<cross_reference>26-113</cross_reference>]) is not changed, modified or affected by the holiday statute (25 O.S. 1941 Supp. § 82.1 [<cross_reference>25-82.1</cross_reference>]).

(Syllabus.) 1. NEW TRIAL — <italic>Statutory language not required as ground for new</italic> <italic>trial.</italic> It is not necessary to use the language of the statute as a ground for new trial, if definite and specific causes are properly alleged, coming within one of the statutory grounds. 2. APPEAL AND ERROR — NEW TRIAL — <italic>Case not reversed unless</italic> <italic>court, in sustaining motion for new trial, erred in some pure,</italic> <italic>simple and unmixed question of law.</italic> Unless the record affirmatively shows that the trial court in sustaining a motion for new trial has manifestly erred in some pure, simple and unmixed question of law, its ruling in this respect will not be reversed on appeal.

(Syllabus.) 1. PARTNERSHIP — <italic>Action to establish partnership. etc., one of</italic> <italic>equitable cognizance.</italic> An action to establish a partnership, for an accounting, for dissolution of the partnership, and for a receiver is one of equitable cognizance. 2. TRIAL — <italic>Demurrer to evidence in equity case treated as motion</italic> <italic>for judgment for defendant.</italic> In a case of equitable cognizance, where at the close of plaintiff's case a demurrer to the evidence is offered by defendant, the court should treat it as a motion for judgment for defendant and should weigh the testimony introduced by the plaintiff and, after so doing, enter its judgment thereon. 3. SAME — APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment.</italic> After the trial court has entered its judgment in such case, it will not be reversed on appeal unless it is against the clear weight of the evidence.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Service of notice to quit upon some one</italic> <italic>over 12 years of age on premises sufficient.</italic> The service of the written notice to quit, required by the forcible entry and detainer act, upon some one over twelve years of age on the premises in controversy is sufficient. 2. SAME — <italic>Servant of defendant over 12 years of age on premises</italic> <italic>qualified person under statute with whom notice to quit may be</italic> <italic>left.</italic> A servant of defendant over twelve years of age on the premises described in the notice, is such a person, as required by the forcible entry and detainer act, with whom such notice to quit may be left.

(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.) APPEAL AND ERROR — <italic>Subsequent appeal dismissed where no new</italic> <italic>issues involved.</italic> Where an opinion of this court has been rendered and mandate issued and spread of record, and an order of the trial court issued in substantial compliance with said mandate, an appeal from such order is without merit and will be dismissed.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Harmless error — Rulings on evidence.</italic> A judgment will not be reversed for error in the admission or rejection of evidence, unless the error results in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 2. SAME — EMINENT DOMAIN — <italic>Exclusion of evidence in condemnation</italic> <italic>proceeding as to value of other land similar to land sought to</italic> <italic>be condemned, held harmless, and not to prejudice rights of</italic> <italic>appellants.</italic> In a condemnation proceeding the owner produced several witnesses who testified that they were familiar with the land sought to be condemned, knew the fair market value thereof and knew the market value of other lands in the vicinity of and similar in character to the land sought to be condemned and knew the price at which such land had been sold; and testified that the fair market value of the land sought to be condemned was about $300 per acre. Counsel then sought to prove by these witnesses the price at which such other land had been sold. This evidence was excluded on objection by condemnor. The record discloses that had the witnesses been permitted to answer they would have testified that such land was sold for a price slightly in excess of $300 per acre. Held, assuming that this evidence might properly have been admitted, the error in its exclusion is harmless, and not of sufficient consequence to require a reversal of the judgment.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Claim barred where not filed within</italic> <italic>year after injury and no voluntary payments tolling</italic> <italic>limitations.</italic> Under section 43 [<cross_reference>85-43</cross_reference>], Title 85, O.S. 1941, where an employer has neither paid compensation nor wages in lieu of compensation nor furnished medical care or attention for the alleged injury within one year next preceding filing of claim therefor, any claim thereafter filed with the Industrial Commission is barred where employer or someone in his behalf has done nothing to toll or waive the statute. 2. SAME — <italic>Industrial Commission's findings as to jurisdictional</italic> <italic>question not conclusive on Supreme Court.</italic> The question of whether a claim for compensation has been filed within the statutory period, as provided by section 43 [<cross_reference>85-43</cross_reference>], Title 85. O.S. 1941, is a jurisdictional question which will be reviewed independently by this court, which will examine and weigh the evidence and make its own independent findings of fact in relation thereto.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain judgment</italic> <italic>in equity case.</italic> In a suit of equitable cognizance the judgment of the trial court based on conflicting testimony will not be disturbed except upon a showing that said judgment is clearly against the weight of the evidence. Where the finding of the trial court is general, such finding is a finding of each special thing necessary to sustain the general finding.

(Syllabus.) 1. MORTGAGES — <italic>Liability of mortgagee wrongfully in possession</italic> <italic>for rental value during such possession.</italic> A mortgagee wrongfully in possession of real property is liable for the rental value during such possession. 2. EVIDENCE — APPEAL AND ERROR — <italic>Admissibility of testimony of</italic> <italic>witness as to rental value of real property.</italic> It is not reversible error for the trial court to permit a witness to testify as to rental value of real property, where such witness testifies that he is a resident of the community in which same is located, and is fairly informed as to the rental value thereof.

(Syllabus.) APPEAL AND ERROR — <italic>Reversal where defendant in error has failed</italic> <italic>to file brief.</italic> Where plaintiff in error has served and filed brief, complaining only of the rendition of judgment against him upon one of several causes of action, and asserts in his brief that there was no evidence to sustain the judgment thereon, and the defendant in error has neither filed a brief nor offered any excuse for his failure to do so, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained as to the cause of action complained of, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the judgment and remand the cause with directions.

(Syllabus.) BROKERS — CONTRACTS — <italic>One not party to written contract not</italic> <italic>liable for its breach in absence of proof of fraud or other</italic> <italic>misconduct of said third party resulting in the breach.</italic> One not a party to a written contract providing for stipulated or liquidated damages for the breach thereof is not liable under the terms of said contract for its breach in the<page_number>Page 166</page_number> absence of allegation and proof that said third party, though the agent of plaintiff, was guilty of fraud or other misconduct resulting in the breach.

(Syllabus.) TRIAL — <italic>Erroneous overruling of motion for directed verdict and</italic> <italic>submission of issue of negligence to jury.</italic> In an action based on negligence where there is no evidence reasonably tending to show that the defendant was guilty of negligence, and the defendant at the close of all the evidence moves for a directed verdict, it is error for the trial court to overrule such motion, and submit the case to the jury.

(Syllabus.) EXECUTORS AND ADMINISTRATORS — <italic>County court order held not final</italic> <italic>decree of distribution as to sum of money representing portion</italic> <italic>of original estate, to the exclusion of three of the four</italic> <italic>living children of deceased brother of original decedent.</italic> In the administration of an estate of a decedent in county court, and in connection with a final report of the administrator, when the court sets aside a stated sum of money as a stated percentage of the estate, and its order in effect directs payment of such sum to the court clerk pending further order of the court as the share of such estate which under the law should go to the children of a deceased brother of decedent, naming as such children one long since deceased and one living, such order does not necessarily constitute a final decree of distribution as to such sum, to the exclusion of three of the four living children of said deceased brother who have not up to that time been mentioned in the probate proceedings, though such order does refer to one of the four surviving children and to another child who died before the parent.

(Syllabus.) 1. PLEADING — <italic>Parties bound by allegations and admissions</italic> <italic>therein.</italic> The pleadings in an action define the issues to be tried by the court, and the parties thereto are bound by the allegations and admissions made therein, unless the same are withdrawn or changed by amendment. 2. SAME — <italic>Amended pleading superseding original pleading — Use</italic> <italic>of original pleading on trial as admission against interest.</italic> Amended pleading complete within itself supersedes original pleading not made part of amended pleading, and allegations contained in original pleading are not conclusive on pleader, but may be introduced as admissions against interest. 3. PARTNERSHIP — <italic>Test of partnership is intent of parties to</italic> <italic>form a partnership.</italic> To constitute a partnership there must be an intent to form a partnership. 4. LIENS — <italic>Equitable lien on particular fund given where claim</italic> <italic>charged by contract on fund.</italic> A contract under which one party is to receive compensation for services out of a particular fund, if and when realized, which service has been performed by such party, gives him an equitable lien on the fund when created in the hands of any one having notice of the contract. 5. APPEAL AND ERROR — <italic>Judgment not reversed in absence of</italic> <italic>showing of prejudicial error.</italic> Where, upon trial, plaintiff is awarded judgment against defendants as partners, and, on appeal, error is assigned thereon upon the ground that the evidence is insufficient to prove the existence of the partnership, and it further appears from the record that the plaintiff was entitled under law to the judgment against the defendants independently of the existence of such partnership, held, the error, if any, goes to the form rather than the substance of the judgment, and not being prejudicial does not constitute reversible error. 6. SAME. Assignment of error that fails to show any resulting injury to appellant, or that any of his constitutional or statutory rights were violated, does not justify reversal.

(Syllabus.) APPEAL AND ERROR — <italic>Order overruling motion for judgment on</italic> <italic>pleadings not appealable order.</italic> An order overruling a motion for judgment on the pleadings is not an appealable order, and where an appeal is taken from such an order prior to the entry of a final judgment or order in the cause, such appeal presents nothing properly reviewable by this court.

(Syllabus.) APPEAL AND ERROR — <italic>Conclusiveness of verdict on vital issue of</italic> <italic>fact when reasonably supported by evidence — Harmless error in</italic> <italic>instruction.</italic> Where the vital issue in a law action is one of fact, the verdict of a jury thereon is conclusive when reasonably supported by the evidence in the absence of a showing that prejudicial error of law committed by the trial court inheres in the verdict. An erroneous instruction is not prejudicial as a matter of law unless it may have influenced the jury's verdict. (King et al. v. Davis, <cross_reference>196 Okla. 277</cross_reference>, <cross_reference>164 P.2d 639</cross_reference>).

(Syllabus.) 1. DEEDS — <italic>Construction — Rule for ascertaining meaning of</italic> <italic>parties.</italic> A deed should be interpreted and the meaning of the parties thereto ascertained in the same manner as govern other written contracts. 2. SCHOOLS AND SCHOOL DISTRICTS — DEEDS — <italic>Construction of</italic> <italic>unambiguous provision in deed to school district.</italic> A provision in a deed to a school district, reciting that the land is to remain the property of the district "so long as it may be used for School District No. 96," is plain and unambiguous, and this court will not by construction import into such deed a restriction or limitation upon the use of the land by the school district making the ownership by the district dependent upon the actual holding of school in the schoolhouse erected thereon.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of appeal where petition in error</italic> <italic>not filed in appellate court within six months after date of</italic> <italic>judgment or order.</italic> Where petition in error is not filed in this court until after expiration of six months from the date of the judgment or order appealed from, the appeal will be dismissed for want of jurisdiction.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case.</italic> In cases of equitable cognizance the appellate court will examine and weigh the evidence, but the findings and judgment of the trial court will not be disturbed on appeal unless it appears that such findings and judgment are clearly against the weight of the evidence. 2. SAME — <italic>Review of equity case — Disposition of cause.</italic> In an action of purely equitable cognizance this court will consider the entire record and weigh the evidence and cause to be rendered such judgment as the trial court should have rendered.

(Syllabus.) 1. PLEADING — TAXATION — <italic>Plaintiff properly permitted to amend</italic> <italic>petition to allege compliance with Intangible Tax Law in</italic> <italic>action on account.</italic> In an action on an account subject to Intangible Tax Law, it is not error for the trial court to permit plaintiff to amend petition to allege compliance with such law. 2. APPEAL AND ERROR — <italic>Sufficiency of evidence to support</italic> <italic>judgment in law action.</italic> In a law action triable to a jury, where jury is waived, the findings of the trial court are entitled to the same weight as the verdict of a jury, and on appeal the Supreme Court will not disturb the findings and judgment if there is any evidence reasonably tending to support such findings and judgment.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Special statutory provision to be</italic> <italic>followed by adjacent municipal corporations to effect</italic> <italic>consolidation superseding general statutory provision on</italic> <italic>subject.</italic> The procedure provided by 11 O.S. 1941 § 3[11-3] constitutes a special referendum on the question of consolidation of two adjacent municipal corporations upon the terms and conditions prescribed and submitted to the vote of the qualified electors of the municipality submitting same and supersedes the general statutory provision (34 O.S. 1941 § 51[<cross_reference>34-51</cross_reference>]) on the subject. 2. SAME — <italic>Ordinance not subject to referendum.</italic> An ordinance of a municipality effecting or vitalizing the will of the qualified electors thereof expressed at an election called to determine whether said municipality shall be consolidated with an adjacent city upon the terms and conditions prescribed is not subject to referendum. 3. SAME — <italic>Thirty-day requirement, in absence of emergency</italic> <italic>clause, has no application to preliminary proceedings.</italic> The provision of law that an ordinance, in the absence of an emergency clause, does not become effective until 30 days after its passage and approval has no application to preliminary proceedings, such as an ordinance authorizing and directing an election on the question of consolidation, in the submission of the question of consolidation of municipalities to the voters for their approval or rejection.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal — Appeal without merit and taken</italic> <italic>for delay only.</italic> Where a motion to dismiss has been filed upon the ground that the appeal is without merit and for the purpose of delay only, and on an examination of the record and brief of the plaintiff in error it is shown that there is no issue presented, the appeal will be dismissed.

(Syllabus.) 1. TRIAL — <italic>Refusal of requested instructions on theory of</italic> <italic>defense not error where instructions given correctly submit</italic> <italic>the defense.</italic> Refusal of a trial court to give requested instructions designed to state the law applicable to a defense made is not error where the instructions given correctly and clearly submit the defense. 2. MUNICIPAL CORPORATIONS — CONSTITUTIONAL LAW — <italic>Classifications</italic> <italic>by municipal legislative body permissible under "equal</italic> <italic>protection clause."</italic> The equal protection clause of the 14th Amendment to the Constitution of the United States only requires that classifications made by a municipal legislative body be reasonable, not arbitrary, and rest upon some ground of distinction having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. 3. MUNICIPAL CORPORATIONS — <italic>Portion of city ordinance designed</italic> <italic>to protect traveling public against hazards of travel on</italic> <italic>streets of Oklahoma City held not violative of equal</italic> <italic>protection clause of United States Constitution.</italic> That portion of section 17 of Ordinance No. 5791 of the Ordinances of Oklahoma City providing: "No commercial vehicle shall be parked on any highway in the City of Oklahoma City outside of the business loop, as herein defined, between the hours of 8:00 o'clock p.m. and 4:00 o'clock a.m., except for necessary time to load and unload," was designed to protect the traveling public against the hazards of travel on the streets of Oklahoma City in the area designated, is not violative of the equal protection clause of the Constitution of the United States but constitutes a valid exercise of the police power of said city. 4. SAME — AUTOMOBILES — <italic>"Commercial vehicle" defined.</italic> "Commercial vehicle," as that expression is used therein, means a class, type or kind of vehicle which was designed, typed and adapted for commercial use. The classification is not based upon the use to which the vehicle is or may be put. 5. TRIAL — <italic>Proper submission to jury, in action for personal</italic> <italic>injury, of question of violation of portion of city ordinance</italic> <italic>as related to automobile collision and resulting injury.</italic> In a suit for personal injury it is proper to submit to the jury the questions of the violation of an applicable portion of a city ordinance and its proximate relationship to<page_number>Page 373</page_number> the occurrence of an automobile collision and resulting injury where the evidence is such that reasonable minds might differ thereon.

(Syllabus.) WILLS — DESCENT AND DISTRIBUTION — <italic>Joint and mutual will of</italic> <italic>husband and wife — Issue between child made sole devisee under</italic> <italic>will and other heirs — Held, intent to disinherit children</italic> <italic>other than one named as devisee affirmatively appears upon</italic> <italic>face of will by inference.</italic> Where a husband and wife execute a joint and mutual will whereby there is devised to the survivor in fee simple the entire estate of the one dying first, and providing that upon death of the survivor all of said property then on hand and the then existing proceeds of any that had been disposed of is devised in fee simple to a son whose designation is followed by the words "who has nursed J.A. Adams for a number of years" (J.A. Adams being the husband testator), and also names another son as executor<page_number>Page 378</page_number> for whom no provision is made in the will and there were living other children neither provided for nor mentioned, held, the intent to disinherit the children other than the one named as devisee affirmatively appears upon the face of the will by inference.

(Syllabus.) 1. MARRIAGE — <italic>Burden of proof on person relying on common-law</italic> <italic>marriage.</italic> The burden is upon the person relying upon a common-law marriage to establish same. 2. SAME — APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>finding against existence of common-law marriage.</italic> The judgment of a trial court against the claim of the consummation of a common-law marriage will not be reversed where it appears that the evidence does not preponderate in favor of such claim.

(Syllabus.) HUSBAND AND WIFE — <italic>Duty of husband to support wife flows from</italic> <italic>and depends upon marriage relation, as declared in statute.</italic> The duty of the husband to support the wife, declared in Tit. 32 O.S. 1941 § 3[<cross_reference>32-3</cross_reference>], flows from, and depends upon, the marriage relation.

(Syllabus.) 1. LANDLORD AND TENANT — WAR AND NATIONAL DEFENSE — <italic>Action for</italic> <italic>recovery of rent overcharges in violation of Emergency Price</italic> <italic>Control Act — Discretion of court as to amount of overcharges</italic> <italic>plaintiff entitled to where violator does not show absence of</italic> <italic>willfulness and taking of precautions to prevent violations.</italic> In event violator of maximum price regulation does not show both absence of willfulness and the taking of practicable precautions to prevent occurrence of violations, the court has discretion to determine the amount of judgment in excess of exact amount of overcharges up to three times the amount of the overcharge. 2. SAME — <italic>Awarding of three times the amount of the overcharge,</italic> <italic>held within discretion of court, and not arbitrary or</italic> <italic>unreasonable.</italic> Record examined, and held, that the trial court did not err in failing to instruct the jury upon the question of whether defendant's violation of rent regulations was willful, and that its awarding of three times the amount of the overcharge to plaintiff was within its discretion and was not arbitrary or unreasonable.

(Syllabus.) 1. WAR AND NATIONAL DEFENSE — <italic>Landlord's default in filing</italic> <italic>registration statement under rent control regulations of</italic> <italic>Emergency Price Control Act — Retroactive refund order not</italic> <italic>invalid.</italic> Landlord's default in filing registration statement within 30 days after first rental of premises rendered rent payments conditional and subject to revision and refund of excess under statute, Emergency Price Control Act of 1942, sec. 1 et seq., as amended, 50 U.S.C.A. Appendix, sec. 901 et seq., and rent control regulations made thereunder and then in force before rent collections were made; under such circumstances retroactive refund order may be made. 2. SAME — <italic>Evidence warranted finding willful violation of</italic> <italic>Emergency Price Control Act, entitling tenants to recover</italic> <italic>three times amount of rental overcharges.</italic> Evidence warranted finding that all rents in excess of designated amount received, since designated date as ordered by Office of Price Administration, was willful violation of Emergency Price Control Act, entitling tenants to recover three times amount of rental overcharges. 3. SAME — <italic>Tenants awarded treble damages held entitled to</italic> <italic>reasonable attorney's fee of $75.</italic> Tenants who were awarded $301.20 treble damages for landlord's refusal to refund rent overcharges were entitled to reasonable attorney's fee of $75, to be determined by the trial court.

(Syllabus.) PLEADING — <italic>Sufficiency of answer as against motion for judgment</italic> <italic>on pleadings.</italic> When the answer states a legal defense of any kind to plaintiff's cause of action, it is sufficient as against a motion for judgment on the pleadings.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of appeal where question becomes</italic> <italic>moot.</italic> Where a motion to dismiss is filed upon the ground that the appeal is moot 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. WORKMEN'S COMPENSATION — <italic>Conclusiveness of finding excusing</italic> <italic>failure to give employer statutory written notice of injury.</italic> A finding of the State Industrial Commission excusing the failure to give written notice on the ground that the employer and the insurance carrier are not prejudiced by such failure as authorized by 85 O.S. 1941 § 24[<cross_reference>85-24</cross_reference>], will not be disturbed by this court on review where such finding is reasonably supported by competent evidence.<page_number>Page 485</page_number> 2. SAME — <italic>Sufficiency of evidence to sustain finding and award</italic> <italic>of Industrial Commission.</italic> Record examined. Held, evidence sufficient to sustain the finding and award of the State Industrial Commission.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Locker room and butcher shop held to</italic> <italic>constitute workshop, and employee injured while working in</italic> <italic>workshop, cutting meat with use of electric power-driven</italic> <italic>machine, held engaged in hazardous employment and entitled to</italic> <italic>compensation.</italic> Respondent was engaged in the operation of a retail grocery store; in connection therewith he also operated in a separate building and as a separate department or branch of his business a locker room and butcher shop which was equipped with electric power-driven machinery. The machinery was installed for use in connection with the special work and separate business being conducted in the locker room-butcher shop department in the manner stated in the opinion. Held, the locker room and butcher shop, which was operated as a unit, constituted a workshop within the meaning of the Workmen's Compensation Act, and an employee who sustains an injury while working in the workshop and while engaged in cutting meat with the use of an electric power-driven machine is engaged in a hazardous employment and entitled to compensation.

(Syllabus.) 1. INTOXICATING LIQUORS — <italic>Forfeiture of automobile for unlawful</italic> <italic>use — Necessary showing automobile was used with owner's</italic> <italic>consent, fault or knowledge.</italic> In order for an automobile to be confiscated because it was used for illegal transportation of intoxicating liquor by one not the owner, it must be shown that it was so used with the owner's consent, fault or knowledge. 2. SAME — <italic>Evidence held insufficient to sustain order of</italic> <italic>confiscation.</italic> Record examined and held: evidence insufficient to sustain order of confiscation.

(Syllabus.) 1. INNKEEPERS — <italic>Innkeeper's liability extending to all personal</italic> <italic>goods brought by guest to the inn — Car and contents held to</italic> <italic>be personal property when placed under care of innkeeper.</italic> Under 15 O.S.A. § 501 [<cross_reference>15-501</cross_reference>], the innkeeper's liability is not confined to goods of any particular kind, but extends to all personal property brought by the guest to the inn, and where defendant was an innkeeper and plaintiff was a guest, leaving his automobile and its contents in said inn, and loss thereof occurred, and all the facts and circumstances, including defendant's name, point to the fact that it was an inn holding itself out to the public as providing facilities peculiar to an inn catering to transients traveling in private automobiles with baggage and other accessories of travel, with emphasis placed on the "parking feature" of the inn, where guests were relieved of the burden of securing safe parking or storage place for their cars and contents, such car and contents, therefore, were personal property placed under the care of the defendant under the innkeepers statute. 2. SAME — <italic>Provisions of statute that innkeeper is liable for</italic> <italic>goods of his guests "placed in his care" is declaratory of the</italic> <italic>common law, not restrictive thereof.</italic> The provisions of 15 O.S.A. § 501 [<cross_reference>15-501</cross_reference>] that the innkeeper is liable for goods of his guests, "placed under his care," is declaratory of the common law, not restrictive thereof. Under such provision, it is not necessary, in order to render the innkeeper liable for their loss, that the goods be placed under his special care, or that notice be given of their arrival. It is sufficient if they are brought into the inn in the usual and ordinary way and are not retained under the exclusive control of the guest, but are under the general and implied control of the innkeeper. 3. SAME — <italic>Directed verdict for plaintiff proper where evidence</italic> <italic>clearly establishes case for plaintiff, and no evidence</italic> <italic>establishing a defense.</italic> Where the evidence clearly establishes a case for plaintiff and there is no contradictory evidence or evidence establishing a defense, a directed verdict for plaintiff is proper.

(Syllabus.) MUNICIPAL CORPORATIONS — <italic>Words "bond issue" as used in statute,</italic> <italic>denote bonds upon which municipality has become liable,</italic> <italic>through disposition and delivery of bonds.</italic> The words "bond issue," as used in Tit. 62 O.S. 1941 § 479[<cross_reference>62-479</cross_reference>], denote bonds upon which the municipality has become liable, according to the tenor thereof, through disposition and delivery of the bonds and that the municipality has received the proceeds of such sale which must be used for the purposes of the bond issue.

(Syllabus.) APPEAL AND ERROR — <italic>Failure of defendant to file brief —</italic> <italic>Reversed, with directions.</italic> Where plaintiff, unsuccessful in the trial court, has properly appealed to this court and has served and filed brief, but defendant has neither filed brief nor offered any excuse for his failure to do so, the court is not required to search the record to find some theory upon which the judgment of the trial court should be sustained, but this court may treat the action of defendant as being an abandonment of his defense or as a confession of plaintiff's right to the relief sought, and may upon that consideration reverse the judgment and remand the cause with directions to grant plaintiff the relief sought.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Findings of fact on jurisdictional</italic> <italic>questions not conclusive on reviewing court.</italic> This court in reviewing an award of the State Industrial Commission will not accept as conclusive the findings of fact of the State Industrial Commission concerning a jurisdictional question, but on review will weigh the evidence relating thereto and make its own independent findings of fact. 2. SAME — <italic>"Independent contractor" defined.</italic> An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and without being subject to the control of his employer, except as to the result of his work. 3. SAME — <italic>Held, State Industrial Commission correctly found</italic> <italic>claimant was an independent contractor, when it denied an</italic> <italic>award.</italic> Record examined. Held, that the State Industrial Commission was authorized to find that the claimant was an independent contractor.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Disposition of equity case where part of</italic> <italic>judgment clearly against weight of evidence.</italic> In a case of equitable cognizance, this court will weigh the evidence and if part of the judgment below is clearly against the weight thereof will render the judgment that the trial court should have rendered, and that part of the judgment which is sustained by the evidence will be affirmed. 2. LIMITATION OF ACTIONS — TRUSTS — 15-<italic>year statute held</italic> <italic>applicable where cause of action to recover mineral interest</italic> <italic>held in trust is for recovery of real property.</italic> Where one conveys an interest in real estate to one who also owns an interest, for cash and consideration of grantee reconveying the mineral rights when the delinquent loan is satisfied, the grantee holds the title to the mineral interest in trust for his grantor, and a cause of action to recover such interest is for the recovery of real property and the 15-year statute of limitations is applicable.

(Syllabus.) 1. OIL AND GAS — <italic>Nature of property rights.</italic> Oil and gas belong to the owner of the land and are parts of it so long as they are on it, or in it, and subject to his control, but when they escape and go into other land or come under another's control through the natural reservoir, the title of the former owner is lost. Property in the oil and gas does not become absolute until they are brought to the surface and reduced to actual possession. The right to reduce oil and gas to possession is a valuable property right which may be conveyed. 2. SAME — <italic>Conveyance of interest by landowner — Validity.</italic> A conveyance by the fee owner of an undivided interest in the oil and gas rights is a valid conveyance of an undivided interest in the property right of the owner as defined in the preceding paragraph. 3. SAME — <italic>Effect of conveyance by fee owner of undivided</italic> <italic>interest in oil and gas rights.</italic> The effect of a conveyance by the fee owner of an undivided interest in the oil and gas rights is to vest in the grantee an interest in the land, which interest is not a segregated part of but a charge or burden upon the fee title in the grantor. 4. SAME — <italic>Owner of oil and gas rights conveyed holds possession</italic> <italic>as trustee.</italic> Where the oil and gas rights of the owner, defined in the first preceding paragraph, have been conveyed, such owner as an incident to his possession of the fee holds possession as trustee of the rights so granted. 5. QUIETING TITLE — <italic>In quiet title action, possession</italic> <italic>prerequisite to authority to enter judgment quieting title.</italic> Ordinarily, possession of realty involved is a prerequisite to authority to enter judgment quieting title, and such possession must be lawful and held bona fide. 6. SAME — <italic>Possession of premises must be in plaintiff, or his</italic> <italic>tenant, to maintain action to quiet title thereto.</italic> Under Tit. 12 O.S. 1941 § 1141[<cross_reference>12-1141</cross_reference>], the possession of the premises that is required to entitle one to maintain action to quiet title thereto must be in the plaintiff himself, or his tenant. 7. SAME — <italic>Cross-petition conferring jurisdiction to determine</italic> <italic>entire controversy.</italic> It is no objection to the jurisdiction of the court in an action to quiet title that plaintiff is not in possession, where defendant files a cross-petition asking that his<page_number>Page 515</page_number> own title be established and quieted, since the court is thereby given jurisdiction of the entire controversy. 8. TAXATION — <italic>Two-year statute of limitation applies to action</italic> <italic>by holder of resale tax deed to recover possession.</italic> 12 O.S. 1941 § 93[<cross_reference>12-93</cross_reference>](3) applies to an action by the holder of a resale tax deed to recover possession of the land, and the action is barred unless it is commenced within two years after the date of the recording of the tax deed.

(Syllabus.) STATUTES — <italic>Initiated measure — Procedure upon disapproval of</italic> <italic>ballot title by Attorney General — Decision on appeal to</italic> <italic>Supreme Court.</italic> Where Attorney General disapproves the ballot title submitted by proponent of an initiated measure, and prepares and files a title with the Secretary of State, any person may appeal to this court from the title so prepared and submitted; this court, on appeal, may approve said title, or may approve a substitute title offered by appellant, or may prepare one.

(Syllabus.) APPEAL AND ERROR — <italic>Nothing presented for review where case-made</italic> <italic>not completed and served within legal time, and errors not</italic> <italic>reviewable except by case-made.</italic> Where the plaintiff in error fails to make and serve a case-made within the time allowed by statute, or within the time as extended by the trial court, and the assignments of error cannot be reviewed otherwise than by case-made, there is nothing before this court for review and an appeal based upon the purported case-made will be dismissed.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Evidence sustaining finding that</italic> <italic>employer had actual notice of injury excusing failure to give</italic> <italic>written notice.</italic> A finding by the State Industrial Commission that actual notice of an injury was given by an employee to an employer and that no prejudice resulted by a failure to give written notice thereof, if supported by competent evidence, will not be disturbed on appeal.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Review of award by court — Disposition</italic> <italic>of cause upon confession of error by claimant.</italic> In a proceeding to review an award of the State Industrial Commission when the claimant files a confession of error and the record discloses that the award should be vacated and the cause remanded to the State Industrial Commission, this court will cause the award to be vacated and remanded in accordance with the confession of error.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in law action to</italic> <italic>sustain verdict of jury.</italic> Where there is any evidence reasonably tending to support the verdict of the jury returned under proper instructions in a law action a judgment based thereon will not be disturbed by this court. 2. TRIAL — <italic>Instruction on burden of proof — Error in favor of</italic> <italic>party complaining.</italic> A defendant cannot take advantage of the error of the trial court in giving an instruction which has the effect of placing a greater burden on plaintiff than required. 3. APPEAL AND ERROR — <italic>Incompetent evidence not shown prejudicial</italic> <italic>— Harmless error.</italic> Incompetent evidence not shown to have probably been prejudicial will be disregarded as harmless. 4. APPEAL AND ERROR — LOST INSTRUMENTS — <italic>Suit to recover money</italic> <italic>judgment is law action, and proof to sustain action need only</italic> <italic>be established by preponderance of evidence.</italic> A suit to recover a money judgment against the maker of a lost or stolen check by one who cashed same for payee is a law action and the necessary proof to sustain such action need be established only by a preponderance of the evidence.

(Syllabus.) APPEAL AND ERROR — <italic>Case dismissed where petition in error filed</italic> <italic>without case-made or transcript of record.</italic> The filing of a petition in error in this court, without a case-made or transcript of the record attached thereto, is not sufficient to authorize the Supreme Court to review any of the errors alleged, and the proceedings will be dismissed.

(Syllabus.) ACTION — <italic>Action against oil lessees for damages for pollution of</italic> <italic>land — Causes of action for injuries may not be united in</italic> <italic>single action against both lessees, where each injury results</italic> <italic>solely from separate and independent act of each lessee.</italic> Where oil and salt water escaping from the wells of a lessee of adjoining lands injures a specific portion of plaintiffs' land, and oil escaping from the pipe line of lessee of plaintiffs' land injures another portion of plaintiffs' land, and neither injury is occasioned by the concurring acts of said lessees, but each injury results solely from the separate and independent act of each lessee, the causes of action for such injuries may not be united in a single action against both lessees.

(Syllabus.) APPEAL AND ERROR — <italic>Necessary statutory notice of appeal from</italic> <italic>judgment on pleadings.</italic><page_number>Page 590</page_number> Where a judgment on the pleadings is rendered, the party aggrieved thereby, desiring to appeal, must give notice in open court either at the time or within ten days thereafter of his intention to appeal to the Supreme Court, as provided by 12 O.S. 1941 § 954[<cross_reference>12-954</cross_reference>], and where he fails to give such notice within such time, this court is without jurisdiction to review the judgment of the trial court.

(Syllabus.) WATERS AND WATER COURSES — <italic>Right of riparian owner to construct</italic> <italic>necessary embankments or dikes to restore stream to original</italic> <italic>channel.</italic> A riparian owner upon a stream may construct necessary embankments, dikes, or other structures to maintain his bank of the stream in its original place and condition, or to restore it to that condition, and to bring the stream back to its natural course, when it has encroached upon his land; and, if he does no more, other riparian owners cannot recover damages for the injury his action causes them.

(Syllabus.) APPEAL AND ERROR — <italic>Errors not presented in motion for new trial</italic> <italic>not considered on appeal.</italic> All matters occurring at the trial which are proper causes for a motion for new trial will be deemed to be waived unless presented by motion for new trial, and this court will not consider them after they have been once waived.

(Syllabus.) 1. COURTS — <italic>Exclusive jurisdiction of county court in</italic> <italic>guardianship proceeding.</italic> When a county court lawfully acquires jurisdiction in a guardianship proceeding that jurisdiction is exclusive and no other court of concurrent jurisdiction can lawfully acquire original jurisdiction of the same guardianship matter so long as the first court is vested with jurisdiction. 2. INSANE PERSONS — <italic>Transfer of guardianship to another county</italic> <italic>not effected.</italic> An order discharging a guardian to become effective upon approval of final report thereafter to be heard does not effect a transfer of the guardianship to another county. 3. GUARDIAN AND WARD — <italic>Authority to approve final account of</italic> <italic>person designated guardian not conferred by waiver.</italic> Where an appointment of a guardian is void for lack of jurisdiction to make the appointment, no authority thereafter exists to approve final account of the person designated guardian. Such authority may not be conferred by waiver. 4. COURTS — INSANE PERSONS — <italic>Held, appointment of guardian and</italic> <italic>order approving final account void, there having been no</italic> <italic>transfer of guardianship from one county to another.</italic> Record examined, and held: The guardianship existing in Tulsa county was not transferred to Seminole county and the county court of Seminole county was without authority to appoint a guardian; the appointment made was void and the order approving the final account of the person named in the order of appointment was void.

(Syllabus.) SYLLABUS ADOPTED. The syllabus in the case of State of Oklahoma ex rel. I.C. Sprague, County Attorney, v. One Pin Ball Machine Styled "Nevada", <cross_reference>203 Okla. 652</cross_reference>, <cross_reference>225 P.2d 369</cross_reference>, this day promulgated, is adopted as the syllabus in this case.

(Syllabus.) SYLLABUS ADOPTED. The syllabus in the case of State of Oklahoma ex rel. I.C. Sprague, County Attorney, v. One Pin Ball Machine Styled "Nevada", <cross_reference>203 Okla. 652</cross_reference>, <cross_reference>225 P.2d 369</cross_reference>, this day promulgated, is adopted as the syllabus in this case.

(Syllabus.) SYLLABUS ADOPTED. The syllabus in the case of State of Oklahoma ex rel. I.C. Sprague, County Attorney, v. One Pin Ball Machine Styled "Nevada", <cross_reference>203 Okla. 652</cross_reference>, <cross_reference>225 P.2d 369</cross_reference>, this day promulgated, is adopted as the syllabus in this case.

(Syllabus.) SYLLABUS ADOPTED. The syllabus in the case of State of Oklahoma ex rel. I.C. Sprague, County Attorney, v. One Pin Ball Machine Styled "Nevada", No. 34205, <cross_reference>203 Okla. 652</cross_reference>, <cross_reference>225 P.2d 369</cross_reference>, this day promulgated, is adopted as the syllabus in this case.

(Syllabus.) APPEAL AND ERROR — <italic>Presentation for review — Affirmance.</italic> Where the plaintiff in error neither presents the alleged errors by proper specifications in the brief nor supports his contention by any authority whatever, if an examination of the record discloses that there is no prejudicial error and that substantial justice has been done, the judgment will be affirmed without discussing the assignments of error in detail.<page_number>Page 687</page_number>