Volume 205 — Oklahoma Reports

(Syllabus.) LICENSES — <italic>Purchaser at public sale of nontax-paid cigarettes</italic> <italic>not relieved of requirements of paying tax and affixing stamps</italic> <italic>before consumption.</italic> 68 O.S.Supp. 1947 § 586d[68-586d], providing for seizure and public sale of nontax-paid cigarettes found within the state in violation<page_number>Page 7</page_number> of the Cigarette Stamp Tax Act, and which further provides that proceeds realized from such sales shall be paid to the Oklahoma Tax Commission as cigarette tax collected, does not relieve a purchaser at such sale from compliance with the further requirements of paying the tax and affixing the stamps before consumption thereof.

(Syllabus.) 1. SCHOOLS AND SCHOOL DISTRICTS — <italic>Formation of common school</italic> <italic>district into consolidated school districts not necessarily</italic> <italic>effective as abandonment or cessation of use of school site.</italic> The formation of a common school district into a consolidated school district, or into two consolidated school districts, does not necessarily constitute an abandonment or cessation of the use of the site of the common school district or the buildings thereon for school purposes. 2. ABANDONMENT — <italic>Necessary concurrence of act of leaving</italic> <italic>property vacant and intention of not returning to constitute</italic> <italic>abandonment.</italic> Concurrence of act of leaving property vacant so that it may be appropriated by the next owner and intention of not returning is necessary to constitute abandonment. 3. SCHOOLS AND SCHOOLS DISTRICTS — <italic>Evidence supports trial</italic> <italic>court's finding that members of school district had no</italic> <italic>intention of abandoning school site for school purposes.</italic> Where there is positive and direct evidence that the members of the school district had no intention of abandoning the school site and buildings thereon, and that the school board had formulated plans for the further use of said site and buildings for school purposes, there was no abandonment of the school site or buildings.

(Syllabus.) 1. SALES — AUTOMOBILES — <italic>Sale invalidated by dealer's long delay</italic> <italic>in furnishing clear title to car.</italic> Where dealer sold automobile without clear title thereto and promised to furnish certificate of title, or clear title, but failed to do so for a considerable period of time, and where buyer persistently demanded such title and refused to make further payments because of such failure, and seller, without buyer's knowledge or consent, took possession of said car and attempted to foreclose the mortgage thereon, held, the consideration for the transaction had failed so as to entitle buyer to treat the contract as broken and sue to recover the amount he paid under the contract. 2. TRIAL — <italic>Refusal of requested instructions not error where</italic> <italic>instructions given reasonably submit issues to jury.</italic> It is not error to refuse to submit requested instructions to the jury where the instructions given reasonably and fairly presented the issues in the case.

(Syllabus.) ELECTIONS — <italic>Judgment of district court on election contest on</italic> <italic>appeal from county election board not appealable.</italic> 26 O.S. 1941 § 392[<cross_reference>26-392</cross_reference>], as amended by S.L. 1944, Ex. Sess., p. 11, § 1 [11-1], 26 O.S.Supp. 1949 § 392[<cross_reference>26-392</cross_reference>], provides for an appeal in the contest of a county election from the county election board to the district court, and, when said contest is determined by the district court, its decision is final. There is no provision for an appeal to the Supreme Court, and, where proceedings in error are taken from such final order of the district court, such appeal will be dismissed.

(Syllabus.) 1. ATTACHMENT — <italic>Any party claiming property attached may</italic> <italic>interplead before or after judgment.</italic> Under the provisions of 12 O.S. 1941 § 241[<cross_reference>12-241</cross_reference>], any party claiming property attached may interplead in the cause, before or after judgment, in the furtherance of justice. 2. SAME — <italic>One, by order of court, given possession of property,</italic> <italic>is receiver and amenable to court.</italic> One who, by order of court, is given possession of property, with the powers, duties and responsibilities of a receiver, is a receiver, whether so designated or not, and is amenable to the court until his accounts are settled and he is discharged. 3. SAME — <italic>In attachment proceeding, court retains jurisdiction</italic> <italic>of cause until discharge of receiver.</italic> Where, in an attachment proceeding, a receiver is appointed to take possession of and preserve the property, the court retains jurisdiction of the cause until the discharge of the receiver.

(Syllabus.) 1. TAXATION — INDIANS — <italic>Determination of whether lands inherited</italic> <italic>from Indian allottee of Five Civilized Tribes by unenrolled</italic> <italic>heir taxable for year</italic> 1931, <italic>and subsequent years.</italic> Whether or not lands inherited from an Indian allottee of the Five Civilized Tribes by an unenrolled heir or devisee of such allottee was taxable for the year 1931 and subsequent years, depends upon the quantum of Indian blood of such heir or devisee and also upon whether or not the amount of such inherited land is over 160 acres. 2. SAME — <italic>Manner of computing quantum of Indian blood of</italic> <italic>unenrolled heir of deceased allottee of Five Civilized</italic> <italic>Tribes.</italic> Since the adoption of the Act of Congress of August 4, 1947, the quantum of Indian blood of an unenrolled heir or devisee of a deceased allottee of the Five Civilized Tribes, can be computed only from the nearest enrolled paternal and maternal ancestors of Indian blood enrolled on the final rolls of the Five Civilized Tribes. Act of Congress of August 4, 1947, sec. 2. 3. SAME — <italic>Act of Congress conclusive of quantum of Indian blood</italic> <italic>of unenrolled heirs of deceased parents enrolled on rolls of</italic> <italic>Five Civilized Tribes.</italic> Section 2, Act of Congress of August 4, 1947, is conclusive of quantum of Indian blood of unenrolled heirs of deceased parents who were enrolled Indians on the rolls of the Five Civilized Tribes. 4. SAME — <italic>Unenrolled Indians of above classification precluded</italic> <italic>by said Act from proving quantum of Indian blood different</italic> <italic>from rolls of nearest lineal ancestors.</italic> Unenrolled Indians of the classification mentioned in the third paragraph of this syllabus are precluded by said section 2 from proving quantum of Indian blood different from that established by the rolls on which their nearest lineal ancestors are enrolled.

(Syllabus.) APPEAL AND ERROR — <italic>Necessary statutory notice of appeal from</italic> <italic>judgment on pleadings.</italic> In order to appeal from a judgment rendered on the pleadings, notice must be given in open court either at the time or within ten days thereafter of intention to appeal to the Supreme Court, as provided by 12 O.S. 1941 § 954[<cross_reference>12-954</cross_reference>], and where notice is not given within such time, this court is without jurisdiction to review the judgment of the trial court.

(Syllabus.) 1. WILLS — <italic>Findings that testator competent to make will not</italic> <italic>against weight of evidence.</italic> Record examined, and held: Findings of the trial court that testator was competent to make a will are not against the clear weight of the evidence. 2. SAME — <italic>Insufficiency of evidence to show will was executed</italic> <italic>under undue influence, menace or duress.</italic> Held, further: Evidence is not sufficient to show that the will was executed under undue influence, menace or duress. 3. SAME — <italic>Substantial compliance with statutes as to execution</italic> <italic>of wills all that is necessary.</italic> Substantial compliance with the statutes relating to the execution of wills is all that is required.

(Syllabus.) 1. OIL AND GAS — PLEADING — <italic>Disclaimers of parties defendant in</italic> <italic>mortgage fore-closure action — Effect of supplemental pleading</italic> <italic>filed after disclaimers were filed.</italic> Where the owner of a real estate mortgage has commenced suit for foreclosure, and parties defendant who had purchased an interest in the land subsequent to execution of the mortgage, for answer, file disclaimers of any right, title or interest in the property and thereafter a judgment is rendered decreeing them to be without title or interest, such parties have no cause to complain. Although supplemental pleading was filed by the mortgagee plaintiff after the disclaimers were filed, said defendants have no basis for asserting lack of jurisdiction in challenge of the judgment on the ground of lack of notice of the supplemental pleading, since the judgment rendered was in accord with their answer and in so far as it affected them was within the original pleadings. 2. SAME — <italic>Held, no fraud shown in procurement of disclaimers and</italic> <italic>judgment sought to be avoided.</italic> Record examined; held, no fraud is shown in procurement of disclaimers or in procurement of judgment sought to be avoided.

(Syllabus.) 1. EJECTMENT — JURY — <italic>Right to jury trial for recovery of real</italic> <italic>property and to quiet title.</italic> An action to recover possession of real property and to quiet title thereto is in the nature of a common-law ejectment action and is triable to a jury. 12 O.S. 1941 § 556[<cross_reference>12-556</cross_reference>]. 2. TRIAL — <italic>Motion for directed verdict — Consideration.</italic> In passing on a motion for a directed verdict, the court must concede to be true the evidence supporting the view of the party against whom the motion is made, giving him the benefit of all legitimate inferences. 3. APPEAL AND ERROR — <italic>Sufficiency of plaintiff's evidence as</italic> <italic>against motion of defendant for directed verdict.</italic> Where there is any evidence in the record reasonably tending to support the allegations of the petition which would justify a verdict in favor of the plaintiff, it is error for the court to direct a verdict for the defendant.

(Syllabus.) 1. PARTIES — <italic>Defect of parties waived unless raised by</italic> <italic>demurrer.</italic> Where question of defect of parties was not raised by demurrer or answer, it is waived. 2. BROKERS — <italic>Statutes providing for licensing of brokers dealing</italic> <italic>with oil field property is for protection of owners of oil</italic> <italic>field equipment and to prevent theft and sale of such</italic> <italic>property.</italic> Title 52 O.S.A. §§ 372 [<cross_reference>52-372</cross_reference>] and 373 are for the protection of owners of oil field equipment and to prevent the theft and sale of such property by requiring all parties attempting to lease or sell such property to keep records thereof and a failure to comply with said statute constitutes a crime but not an abrogation of any contractual rights. 3. APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain</italic> <italic>judgment where cause fairly tried to jury on issues raised by</italic> <italic>pleadings.</italic> Where the record discloses that a cause has been fairly tried to a jury on the issues raised by the pleadings, under proper instructions, and there being evidence reasonably tending to support the verdict of the jury and the judgment of the court based thereon, the judgment will be affirmed.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case.</italic> In a case of equitable cognizance the judgment of the trial court will not be disturbed on appeal unless the same is clearly against the weight of the evidence.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Whether disability attributable to</italic> <italic>injury or other cause question for Industrial Commission.</italic> Whether a disability is attributable to an injury or other cause is a question of fact to be determined by the State Industrial Commission from the competent evidence adduced. 2. SAME — <italic>Evidence not reviewed to determine weight and value on</italic> <italic>questions of fact.</italic> In an action to review an order of the State Industrial Commission denying an award, this court will not review the evidence to determine the weight and value thereof on questions of fact.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Ordinances dealing with issuance of</italic> <italic>bonds to acquire electric distribution system involve</italic> <italic>administrative action rather than legislative.</italic> A town ordinance authorizing the calling of an election to submit to the qualified electors of the town the question of the issuance of the bonds of said town to acquire an electric distribution system under the provisions of article 10, section 27, of the Constitution of Oklahoma, is an administrative act and is not subject to referendum under the general initiative and referendum laws. 2. SAME — <italic>Authority of municipal clerk to sustain protest to</italic> <italic>referendum petition on matter not within referendum powers,</italic> <italic>and to declare petition insufficient.</italic> Where a referendum petition is filed with a town clerk seeking a referendum on a matter not within the referendum powers reserved to the people of municipalities by section 4A, article 18, Oklahoma Constitution, as carried into effect by 34 O.S. 1941 § 51[<cross_reference>34-51</cross_reference>], it is not error for the Clerk to sustain protest thereto and to declare such petition of no force or effect.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Finding that claimant sustained</italic> <italic>accidental injury causing temporary total disability, and</italic> <italic>award based thereon, not disturbed where evidence sufficient</italic> <italic>to support same.</italic> In reviewing an award of the State Industrial Commission, findings of the commission: That an injury sustained by an employee constituted an accidental injury; that it arose out of and in the course of his employment; that he was thereby temporarily totally disabled, and an award based thereon awarding compensation for such disability, will not be disturbed where reasonably supported by competent evidence.

(Syllabus.) 1. WITNESSES — <italic>Incompetency to testify in own behalf as to</italic> <italic>transactions with persons since deceased.</italic> Under the provisions of Title 12, sec. 384, O.S. 1941, a party to a civil action against the administrators of a decedent is incompetent to testify in his own behalf in respect to any transaction or communication had by such party with such deceased person.<page_number>Page 172</page_number> 2. SAME — <italic>Waiver of incompetence of witness to testify to</italic> <italic>transactions with deceased person not extended to totally</italic> <italic>different proceeding.</italic> The waiver of the incompetence of a witness to testify to transactions with a deceased person in one case does not extend to a totally different proceeding.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Trial court not authorized to extend time</italic> <italic>for appeal, where no order made within three months from</italic> <italic>rendition of judgment extending time to file appeal in this</italic> <italic>court.</italic> 12 O.S. 1941 § 972[<cross_reference>12-972</cross_reference>], as amended, S.L. 1949, p. 97, § 1 [97-1], 12 O.S.A. Supp. § 972, provides that appeals must be taken within three months from the rendition of the judgment or final order complained of, but that the trial court in its discretion may extend the time for not to exceed six months. Under the provisions of this amendment, where no order is made by the trial court within three months from the rendition of the judgment or final order complained of, extending the time within which to file an appeal in this court, such judgment becomes final, and the trial court is thereafter without jurisdiction to extend the time within which to file such appeal. 2. SAME — <italic>Order of trial court extending time to make and serve</italic> <italic>case-made beyond statutory time for appeal does not extend</italic> <italic>time for appeal.</italic> An order made by the trial court, extending the time within which to make and serve case-made beyond the statutory time within which an appeal is required to be effected, does not extend the time to appeal.<page_number>Page 213</page_number>

(Syllabus.) 1. DIVORCE — <italic>Decree of trial court in action for divorce and</italic> <italic>settlement of property rights not disturbed unless clearly</italic> <italic>against weight of evidence.</italic> In an action for divorce and settlement of property rights, the decree of the trial<page_number>Page 216</page_number> court will not be disturbed on appeal unless the same is clearly against the weight of the evidence. 2. SAME — <italic>Judgment and decree of trial court held not clearly</italic> <italic>against weight of evidence.</italic> Record examined, and held: Judgment and decree of the trial court is not clearly against the weight of the evidence.

(Syllabus.) INTOXICATING LIQUORS — <italic>Order of forfeiture of motor vehicle</italic> <italic>reversed where evidence failed to establish use of vehicle in</italic> <italic>transportation of intoxicating liquor from one place to</italic> <italic>another within state in violation of law.</italic> Authority for forfeiture of a motor vehicle under Tit. 37 O.S. 1941 § 111[<cross_reference>37-111</cross_reference>], requires evidence clearly establishing use of such vehicle in the transportation of prohibited intoxicating liquor from one place to another within the state, in violation of law, and where the evidence fails to establish such transportation as a fact, an order of forfeiture of such vehicle will be reversed by this court.

(Syllabus.) PLEADING — <italic>Judgment may not be rendered for plaintiff without</italic> <italic>proof of allegations as to his title.</italic> In an action in ejectment joined with an action to quiet title, rendition of judgment for plaintiff by sustaining plaintiff's motion for judgment on the pleadings without any evidence to support averments of petition as to plaintiff's title was error.

(Syllabus.) DIVORCE — <italic>Validity of divorce decree dividing property and</italic> <italic>awarding alimony — Sufficiency of evidence.</italic> A divorce decree dividing property and awarding alimony will not be disturbed on appeal unless it is clearly against the weight of the evidence.

(Syllabus.) ABATEMENT AND REVIVAL — APPEAL AND ERROR — <italic>Disposition of cause</italic> <italic>— Death of party — Dismissal.</italic> Where plaintiff appeals from a judgment for defendant in an action for damages for personal injuries and dies and there is no proceeding to revive the action either in the district court or the Supreme Court within one year after the death, said action abates and the appeal will be dismissed.

(Syllabus.) COURTS — SUPREME COURT — <italic>Exclusive superintending power over</italic> <italic>inferior courts.</italic> The Supreme Court of Oklahoma under section 2 of article VII of the Constitution is vested with the exclusive superintending power over all inferior courts.

(Syllabus.) APPEAL AND ERROR — <italic>Time for appeal — Filing unnecessary motion</italic> <italic>for new trial.</italic> The filing and determination of a motion for new trial after a judgment rendered upon an agreed statement of facts is unnecessary and where the appeal is not lodged in this court within six months after the judgment rendered in the trial court, the appeal will be dismissed.

(Syllabus.) APPEAL AND ERROR — MARRIAGE — <italic>Sufficiency of evidence to sustain</italic> <italic>finding of trial court that, under facts and circumstances, a</italic> <italic>common law marriage existed.</italic> Where the evidence discloses that a man and a woman lived and cohabited together as husband and wife from 1923 to the time of the death of the woman in 1948, during which period of time they mutually held themselves out to the general public as husband and wife, and during such period of time when a policy of burial insurance was procured by the woman, she, in the application, listed the man as her husband; held: that where the trial court finds from such facts and circumstances that a common law marriage existed between the parties, such judgment is not clearly against the weight of the evidence.

(Syllabus.) 1. TAXATION — <italic>Right of owner to redeem real estate from lien</italic> <italic>resulting from tax sale at any time before execution of deed</italic> <italic>of conveyance by county treasurer.</italic> Under 68 O.S. 1941 § 433a[68-433a], the owner of real estate sold for taxes, or any person having a legal or equitable interest therein, may redeem the same from the lien resulting from the tax sale at any time before the execution of a deed of conveyance thereof by the county treasurer. 2. SAME — <italic>Taxpayer entitled to have tax sale set aside and</italic> <italic>resale deed canceled on equitable principles upon full payment</italic> <italic>of taxes, interest, penalties, and costs.</italic> Where a taxpayer has in good faith tendered payment of taxes, interest, penalties and costs due on his property at a time after the property has been sold at resale, but before the execution and delivery of the resale tax deed, the taxpayer is entitled to have the sale set aside and the resale tax deed canceled on equitable principles, upon full payment of the taxes, interest, penalties and costs.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review of evidence in equitable action —</italic> <italic>Judgment affirmed unless clearly against weight of evidence.</italic> A judgment, in an action of equitable cognizance, will be affirmed unless the finding and judgment of the trial court is clearly against the weight of the evidence. 2. DEEDS — <italic>Judgment holding warranty deeds valid, held not</italic> <italic>clearly against weight of evidence.</italic> Evidence examined, and held judgment not clearly against the weight thereof.

(Syllabus.) TAXATION — <italic>In action to recover upon written rental contract,</italic> <italic>compliance with Intangible Tax Law must be alleged and</italic> <italic>proved.</italic> In an action to recover upon a bill receivable or other credit subject to taxation under the Intangible Tax Law, plaintiff must allege and prove that such obligation has been listed and assessed for taxation and all taxes, interest and penalties paid. Failure to so allege and prove leaves the trial court without jurisdiction to render judgment thereon, and the action should be dismissed.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence to</italic> <italic>sustain verdict.</italic> Where, in an action at law the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the evidence lies, but if the evidence reasonably tends to support the verdict, it will not be set aside. 2. SAME — <italic>Held, evidence, though conflicting, sufficient from</italic> <italic>which jury could find defendant negligent.</italic><page_number>Page 378</page_number> Record examined, and held: That the evidence, though conflicting, was sufficient from which a jury could find that defendant was negligent.

(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 and none is filed, and no excuse offered for such failure, this court may, in its discretion, dismiss the appeal.

(Syllabus.) 1. JUDGMENT — <italic>Action to revive money judgment — Action must be</italic> <italic>maintained by personal administrator and not heirs of estate.</italic> Where Prusa obtained a money judgment against Hejduk which remained unsatisfied at the death of both Prusa and Hejduk and upon whose estates no administration proceedings were had; and where the heirs of Prusa brought an action against the heirs of Hejduk to recover on the former judgment and subject land previously conveyed by Hejduk and wife to another to the satisfaction of the judgment, such an action cannot be maintained by Prusa's heirs but must be maintained by the personal administrator of Prusa's estate, as the proceeds of the judgment, if satisfied, do not vest in Prusa's heirs but are subject to creditors' claims under administration proceedings. 2. SAME — <italic>Order of revivor obtained without notice to heirs</italic> <italic>invalid, and demurrer to petition disclosing noncompliance</italic> <italic>with statutory requirements properly sustained.</italic> Where after Prusa had recovered a money judgment against Hejduk and where the heirs-at-law of Prusa filed an action against the heirs-at-law of Hejduk to recover on said former judgment, and where Prusa's heirs alleged that their ancestor died on September 10, 1945, and the order of revivor was obtained on September 7, 1947, without notice to the heirs of Hejduk, such revivor is invalid under the provisions of 12 O.S.A. §§ 1077 [<cross_reference>12-1077</cross_reference>], 1078, 1071 and 1072, and a demurrer to a petition which discloses a noncompliance therewith is properly sustained.<page_number>Page 380</page_number>

(Syllabus.) 1. TAXATION — <italic>Resale tax deed void where name of owner as shown</italic> <italic>by records of county clerk, omitted in notice of resale.</italic> Under sec. 9744, C.O.S. 1921, the omission in notice of resale of name of owner of land as shown by the records in the office of the county clerk, and the inclusion in the notice of a name of a stranger to the title, render resale tax deed based on such notice void. 2. SAME — <italic>Waiver of "tender" required by one attacking resale</italic> <italic>tax deed.</italic> The payment of the "tender" required by one attacking a resale tax deed may be waived by failure to request that actual payment be made in open court, or failure to move for dismissal for failure to comply with order for such payment.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence in equity case.</italic> Judgment of trial court in a case of equitable cognizance will not be disturbed on appeal unless clearly contrary to weight of the evidence. 2. SAME — <italic>Evidence sustained finding of trial court, and court</italic> <italic>committed no error in rendering judgment against defendant.</italic> The findings of the trial court are amply sustained by the evidence and there was no error in rendering judgment against the defendants.

(Syllabus.) 1. LANDLORD AND TENANT — <italic>Terms of lease as to subleasing not</italic> <italic>violated where lessee has sole control of premises and</italic> <italic>subleases on temporary basis, creating mere license of</italic> <italic>occupancy.</italic> Where the owner of a garage executes a written lease for a term of years, containing a covenant against subleasing, and where the lessee thereunder permits one person to use a space as a welder and another person to use a space for storage of filling station merchandise; and where the lessee at all times maintained sole control of the premises, permitting such use on a temporary basis with the right to terminate the same at will, does not violate the terms of the lease as a subleasing, but creates a mere license of occupancy. 2. SAME — TRIAL — <italic>Instruction of court defining "an assignment"</italic> <italic>and "license of occupancy," properly submitted case of alleged</italic> <italic>breach to jury — Judgment on finding supported by evidence</italic> <italic>sustained.</italic> Where in an instruction to the jury, the court defines the distinguishing characteristics<page_number>Page 424</page_number> of "an assignment" and a "license of occupancy" and the jury is advised that if they find from a preponderance of the evidence that defendant subleased portions of the garage building in violation of the terms of the lease contract, they should find for the plaintiff, properly submits the issue of an alleged breach of the contract to the jury and if such finding is reasonably supported by the evidence, the judgment thereon will be sustained.

(Syllabus.) 1. PAYMENT — <italic>Payment with full knowledge of facts cannot be</italic> <italic>recovered.</italic> As a general rule money voluntarily paid on a debt with full knowledge of the facts under which it was demanded cannot be recovered back. 2. CHATTEL MORTGAGES — <italic>Payment of mortgage debt to obtain</italic> <italic>release of car and avoid liability on warranty, held voluntary</italic> <italic>payment and cannot be recovered.</italic> One S., owner and possessor of an automobile, mortgaged it to B. to secure a debt evidenced by promissory note and the mortgage was properly filed for record. Thereafter, the car passed through several hands by purchase and sale without payment of the debt. B., the mortgagee, took the car from W., the last purchaser thereof, for the purpose of foreclosing the mortgage. Thereupon M., who had purchased from another and sold the car to W. on warranty, settled the mortgage debt to obtain release of the car to W. and to avoid liability on his warranty to W. Held, such payment was in law a voluntary payment made by M. to B. which M. was not entitled to recover back from B.

(Syllabus.) PARENT AND CHILD — CUSTODY OF CHILDREN — <italic>Welfare of child</italic> <italic>paramount consideration — Finding that best interest of child</italic> <italic>subserved by placing its custody with mother not against clear</italic> <italic>weight of evidence.</italic> In a contest between a mother and daughter over an infant child of the daughter for its custody, the welfare of the child is the paramount consideration in determining which party is entitled to its custody, and where the finding of the trial court is that the best interest of the child will be subserved by placing its custody with its mother, and such finding is not against the clear weight of the evidence, the judgment of the trial court will be affirmed.

(Syllabus.) 1. COMMON CARRIERS — TELEGRAPHS AND TELEPHONES — <italic>Common carrier</italic> <italic>of messages by telegraph guilty of gross negligence in failing</italic> <italic>to exercise highest degree of care in delivery of message.</italic> Sec. 172 [<cross_reference>13-172</cross_reference>], Title 13, O.S. 1941, imposes upon common carriers of messages by telegraph the utmost diligence in the transmission and delivery of messages, and where such common carrier of messages by telegraph negligently fails to exercise the highest degree of care in the delivery of a message, it is guilty of gross negligence. 2. SAME — <italic>Sender of message entitled to recover loss resulting</italic> <italic>from delay in delivery of message until day after rental</italic> <italic>became due on oil and gas lease.</italic> If common carrier of messages by telegraph accepts money-order telegram with notice that money is for payment of rental on oil and gas lease and due the following day, but fails through negligence to make delivery until day after rental became due, sender of message is entitled to recover whatever loss results from such delay, and carrier may not limit its liability by special contract.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Award sustained where evidence supports</italic> <italic>finding claimant sustained accidental injury arising out of</italic> <italic>and in course of employment.</italic> Where the evidence supports the finding of the Industrial Commission that the claimant sustained an accidental injury arising out of and in the course of his employment, the order and award based thereon will not be disturbed.

(Syllabus.) 1. COURTS — APPEAL AND ERROR — <italic>Rules of justice court procedure</italic> <italic>applicable to appeals from city court, except as otherwise</italic> <italic>provided by act.</italic> Title 11 O.S.A. § 833 [11-833] makes the rules of justice court procedure applicable to appeals from the city court, "except as otherwise provided by this act. . ." and Title 11 O.S.A. § 846 [11-846] provides ". . . that no appeal shall be taken unless a defense was set up or a cause of action shown by written pleadings and also by actual appearance and defense in person or by attorney in open court in such City Court, unless appealing party shows he was prevented from filing pleadings or appearing at the trial in such City Court by unavoidable casualty or misfortune or excusable neglect." 2. SAME — <italic>Prerequisites to appeal for trial de novo to a</italic> <italic>district or superior court — Failure to comply, appeal subject</italic> <italic>to dismissal.</italic> The language used in section 833, supra, was limited and qualified by the proviso in section 846, supra, which required as a prerequisite to an appeal for trial de novo to a district or superior court, the filing of a written answer or defense, or a showing that appellant was prevented from so doing by unavoidable casualty, misfortune or excusable neglect and for failure to comply therewith, appeal was, upon motion of adverse party, subject to dismissal.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence and instructions.</italic> Where the evidence is conflicting, but there is sufficient evidence introduced by plaintiff upon which the jury could reasonably predicate their verdict, and instructions given by the court are free from error, this court, upon appeal, will not reverse the judgment. 2. JOINT ADVENTURES — USE AND OCCUPATION — <italic>Owner contributing</italic> <italic>use and occupancy of lands as part of consideration in joint</italic> <italic>venture not entitled to recover rent in absence of agreement</italic> <italic>for payment of rent.</italic> If the owner of real estate, by agreement, contributes the use and occupancy of his lands as a part of the consideration in a joint farming venture, with other persons, he cannot, at the time of settlement between the parties, be heard to say that under Tit. 41 O.S. 1941 § 19[<cross_reference>41-19</cross_reference>], he is entitled to recover rent on such real estate as a part of the expense of the joint venture,<page_number>Page 476</page_number> in the absence of an agreement for payment of rent. 3. APPEAL AND ERROR — <italic>Change of theory of case on appeal not</italic> <italic>permissible.</italic> Where a party has tried his case and submitted the same to the jury or the court upon one theory, if the verdict and judgment of the trial court are against him, he will not be permitted to try the case upon a different theory in this court.

(Syllabus.) CORPORATIONS — <italic>Venue of action against domestic corporation.</italic> Where contract for delivery of scrap metal f.o.b. cars in Jackson county was accepted in Oklahoma county by domestic corporation, suit against said corporation for contract price of scrap metal was properly brought in Jackson county. Title 12 O.S. 1941 § 134[<cross_reference>12-134</cross_reference>].

(Syllabus.) PUBLIC SERVICE COMMISSIONS — OIL AND GAS — <italic>Order appealed to</italic> <italic>Supreme Court affirmed if sustained by law and substantial</italic> <italic>evidence.</italic> An order of the Corporation Commission on appeal to the Supreme Court will be affirmed if sustained by the law and substantial evidence.

(Syllabus.) 1. BROKERS — APPEAL AND ERROR — <italic>Question of whether broker was</italic> <italic>procuring cause of sale one of fact for jury — Evidence</italic> <italic>reasonably supporting verdict.</italic> In an action by a real estate broker to recover commission for procuring the sale of the owner's property, the question as to whether or not he was the procuring cause of the sale is one of fact for the jury, and there being evidence reasonably tending to support the verdict, it will not be disturbed on appeal. 2. SAME — <italic>Sufficiency of evidence to support findings of jury.</italic> The jury are the triers of the facts and the sole and exclusive judges of the evidence and the credibility of the witnesses, and, where there is evidence tending to support the findings of the jury, same will not be disturbed on appeal. 3. TAXATION — <italic>In suit on account, judgment for plaintiff</italic> <italic>erroneous unless compliance with Intangible Tax Law alleged</italic> <italic>and proved.</italic> In a suit on an account which is subject to the Intangible Property Tax Law, 68 O.S. 1941 §§ 1501-1515[68-1501-1515] [<cross_reference>68-1501</cross_reference>] [68-1515], it is error for the trial court to render judgment for the plaintiff unless plaintiff has alleged and proved compliance with the requirements of such law.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal of frivolous appeals.</italic> Where a motion to dismiss has been filed on the ground that the appeal is for delay only and on an examination of the record and the response to the motion to dismiss it is disclosed that the sole issue, that the trial court was without jurisdiction to enter the judgment from which the appeal is taken, is without merit, the appeal will be dismissed.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed when question presented has</italic> <italic>become moot.</italic> When the question presented by an appeal has become moot, the appeal will be dismissed.

(Syllabus.) CARRIERS — <italic>Injury to passenger — No error was committed when</italic> <italic>court in instructions to jury assumed plaintiff was a</italic> <italic>passenger and entitled to rights and protection due a</italic> <italic>passenger.</italic> Where plaintiff contends she was injured while boarding a city bus, and a consideration of the evidence most favorable to defendant on the controversial points, and a consideration of the physical facts known to all, and of the uncontradicted evidence, demonstrates that plaintiff had progressed far enough in her good faith effort to board the bus, to attain the status of a passenger, it was not error in the instructions of the court to assume that the plaintiff was a passenger and entitled to the rights and to the protection due a passenger.

(Syllabus.) 1. PLEADING — <italic>Defects in verification treated as waived where</italic> <italic>not challenged by motion to strike.</italic> A failure to verify a petition for injunction does not render it fatally defective. It is waived by failure to call the court's attention thereto by proper motion. 2. ARREST — <italic>Arrest without warrant for violation of liquor laws</italic> <italic>in officer's presence.</italic> Where an officer sees a person violating the intoxicating liquor law at a place where the officer has a legal right to be, the officer may without a warrant arrest the person and search his person and immediate possessions for intoxicating liquor. 3. INTOXICATING LIQUORS — <italic>Evidence that proprietor of night club</italic> <italic>permitted intoxicating liquor to be brought in and consumed on</italic> <italic>premises sufficient to sustain permanent injunction.</italic> Record examined; and held, that evidence showing that the patrons of a night club habitually brought intoxicating liquor to the club and consumed it there, and that the proprietor of the club was seen carrying liquor from his car to the club and admitted that he was giving it away to his friends, was sufficient to sustain a permanent injunction restraining the owner of the club from selling or otherwise disposing of intoxicating liquor, and from permitting persons to bring intoxicating liquor in and upon the premises or from permitting intoxicated persons to be upon the premises.

(Syllabus.) 1. PLEADING — <italic>Allegations of petition deemed true in passing on</italic> <italic>demurrer.</italic> On demurrer to a pleading as defective in that it does not state facts sufficient to constitute a cause of action or defense, the pleading must be liberally construed and all its allegations for the purpose of the demurrer are taken as true. 2. SAME — <italic>Sufficiency of pleading to withstand demurrer.</italic> If facts stated in pleading entitle pleader to any relief, a demurrer thereto for want of sufficient facts to constitute a cause of action or a defense should be overruled. 3. ATTORNEY AND CLIENT — <italic>Attorney contracting with client has</italic> <italic>burden of showing fairness.</italic> Although an attorney is not under an absolute disability to purchase his client's property, where he does so during the existence of the relation of attorney and client with respect to the property so purchased, he assumes the heavy burden of proving his utmost good faith and fairness in the transaction and that he paid an adequate consideration for the property. He must also show that he fully informed his client of all the material facts and gave the same disinterested advice he would have given had the sale been made to a stranger. (Watts v. Jackson, <cross_reference>75 Okla. 123</cross_reference>, <cross_reference>182 P. 508</cross_reference>.) 4. ESTOPPEL — <italic>Estopped by conduct to deny existence of facts.</italic> A person by representation and conduct inducing another to believe in the existence of certain facts on which other acts to his prejudice is estopped to deny the existence of such facts. 5. QUIETING TITLE — <italic>Error in sustaining demurrer to answer and</italic> <italic>cross-petition, in action to quiet title.</italic> In an action to quiet title, where the answer and cross-petition of a defendant properly alleges any valid interest in the land, it is error to sustain a demurrer to the answer and cross-petition.

(Syllabus.) INTOXICATING LIQUORS — <italic>Order of forfeiture of motor vehicle</italic> <italic>reversed where evidence insufficient to establish use of</italic> <italic>vehicle in transporting intoxicating liquors from one place to</italic> <italic>another within state in violation of law.</italic> Authority for forfeiture of a motor vehicle under 37 O.S. 1941 § 111[<cross_reference>37-111</cross_reference>], requires evidence clearly establishing use of such vehicle in the transportation of prohibited intoxicating liquor from one place to another within the state in violation of law, and where the evidence fails to establish such transportation as a fact, an order of forfeiture of such vehicle will be reversed by this court.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Award of Industrial Commission not</italic> <italic>vacated where record fails to show claimant was denied</italic> <italic>opportunity of complete hearing.</italic> The Supreme Court will not vacate an award of the State Industrial Commission on the ground that a party to the proceeding has been denied a complete hearing unless it is made to appear that such party has been denied an opportunity to present an essential issue. 2. SAME — <italic>Failure of Industrial Commission to take any testimony</italic> <italic>relative to rate of compensation not prejudicial error.</italic> It is not prejudicial error to refuse the introduction of evidence in support of the rate of compensation of a claimant where it is stipulated and agreed that his rate of compensation shall be based upon the maximum provided at the time of the injury. 3. SAME — <italic>Cause and extent of disability resulting from</italic> <italic>accidental injury questions for the Commission, and finding</italic> <italic>not disturbed where supported by evidence.</italic> The cause and extent of disability resulting from an accidental injury are questions of fact and will not be disturbed by this court on review where the evidence reasonably supports the finding of the State Industrial Commission.

(Syllabus.) 1. NEW TRIAL — <italic>Statutory grounds not limitation on broad</italic> <italic>inherent powers of court to see justice is done.</italic> The statutory grounds for a new trial are not exclusive of the broad, inherent power of the court to see that, in the opinion of the court, the litigant has received substantial justice and are not a limitation on such inherent power. 2. APPEAL AND ERROR — NEW TRIAL — <italic>Wide latitude accorded trial</italic> <italic>court in matter of granting new trial — Action not disturbed</italic> <italic>in absence of clear abuse of discretion.</italic> The trial court is vested with broad discretion in granting or denying a new trial and its action in granting a new trial will not be disturbed on appeal in the absence of a clear abuse of discretion.

(Syllabus.) 1. JUDGMENT — <italic>Estoppel by judgment rendered upon another cause</italic> <italic>of action — Necessary identity of questions of fact in issue</italic> <italic>and determined in former action.</italic> Where an estoppel by a former judgment rendered upon one cause of action is sought to be applied to matters arising in a suit in a different cause of action, the inquiry is whether the question of fact in issue in the latter case is the question of fact actually determined in the former action, and not what might have been litigated and determined therein. 2. SAME — <italic>Plea of estoppel or res adjudicata not sustained as</italic> <italic>bar to subsequent action.</italic> Where, in the former action, the sole question as disclosed by the pleadings and judgment was invalidity of a deed executed by Wilson to Vance and claimed by him to be a forgery, and where in the subsequent action in a suit by Vance against Wilson, the latter pleads title under a deed from Vance to him but that the execution or existence of the deed was not known to him when the former judgment was rendered, a plea of estoppel or res adjudicata cannot be sustained as a bar to the latter cause of action.

(Syllabus.) WILLS — <italic>Clear intention of testator to devise particular tract</italic> <italic>of land — Unintentional omission of section number may be</italic> <italic>supplied by extrinsic evidence.</italic> Where a will clearly and unequivocally devises 80 acres of land to a designated devisee and the description is full and complete except for the number of the section which is omitted and the testator owns but one tract of land, which is an 80-acre tract conforming to the description contained in the will, on the supplying of the section number, <italic>held,</italic> the omission of the section number was unintentional and the same may be supplied by extrinsic evidence.

(Syllabus.) 1. INSURANCE — <italic>Agent held not agent of insured who gave correct</italic> <italic>information for application which was incorrectly written down</italic> <italic>by agent.</italic> In the absence of fraud or collusion between the soliciting agent and the applicant, where the applicant answers questions contained in an application for a policy of insurance, fully and without withholding material facts, and the agent does not correctly write such information in answer to the questions propounded, such agent is acting for the insurance company and not as agent of the applicant. Knowledge of material facts gained by the insurance company's soliciting agent is imputable to the company, and it is bound thereby. 2. TRIAL — <italic>Refusal of requested instruction requiring</italic> <italic>modification not error.</italic> It is not error to refuse a requested instruction which cannot be given without correction or modification.

(Syllabus.) CHAMPERTY AND MAINTENANCE — DEEDS — <italic>Where grantee's deed</italic> <italic>obtained in violation and in contravention of statute, and is</italic> <italic>the basis for an action which arises out of a transaction</italic> <italic>prohibited by statute and equity, judgment affirmed, as courts</italic> <italic>are instituted to carry into effect the laws of the country</italic> <italic>and cannot become auxiliary to the consummation of violations</italic> <italic>of law.</italic> Where grantee, without the permission or knowledge of the grantor, brings an action in the name of the grantor for the use and benefit of the grantee and asserts in his petition the superiority of his quitclaim deed to any right, title or interest of the adverse holder, who has admittedly been in adverse possession under color of title for more than seven years and has never recognized any other persons' rights, or paid rents or profits to any one during that time, and such adverse holder files answer and cross-petition, wherein it is alleged<page_number>Page 681</page_number> that the grantee's deed was obtained by fraud and misrepresentations and without adequate consideration, and upon trial it is shown, and the court found and decreed that the deed was knowingly so obtained in violation and in contravention to 21 O.S.A. § 548 [<cross_reference>21-548</cross_reference>], for the sole purpose of bringing the ejectment and quiet title action and such deed being the basis for the action which arises out of a transaction prohibited by statute, and equity, the judgment of the trial court will be affirmed as courts are instituted to carry into effect the laws of the country and they cannot become auxiliary to the consummation of violations of law.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — APPEAL AND ERROR — <italic>Review of</italic> <italic>judgment of district court, affirming on appeal order of</italic> <italic>county court appointing an administrator of deceased person.</italic> On appeal from the judgment of the district court, affirming on appeal the order of the county court appointing an administrator of a deceased person, this court will consider and weigh the evidence but will not reverse the judgment unless it is against the clear weight thereof. 2. EXECUTORS AND ADMINISTRATORS — <italic>Held, finding that deceased</italic> <italic>was at time of her death a resident of Major county not</italic> <italic>against clear weight of evidence.</italic> Record examined. Held, finding of the county court, affirmed on appeal by the district court that deceased was at the time of her death a resident of Major county, is not against the clear weight of the evidence. 3. SAME — <italic>Letters of administration granted to applicant where</italic> <italic>no contest.</italic> The county court may grant letters of administration to any competent and qualified applicant, though there is another person, a daughter of deceased who has a better right to the appointment where she has made no application for such appointment or in any manner requested that letters be issued to her.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Period within which application may be</italic> <italic>made to reopen cause on change of condition.</italic> The jurisdiction of the State Industrial Commission to reopen any cause upon change in condition extends for the maximum period of time measured by the number of weeks for which compensation could have been awarded had the changed condition at the time of filing motion to reopen existed at the date of the original award.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain verdict</italic> <italic>where instructions fairly presented law governing issues in</italic> <italic>case and no prejudicial error shown.</italic> Where there is any competent evidence to sustain the verdict of the jury and judgment of the court based thereon and the instructions fairly presented the law governing the issues in the case and no prejudicial error is otherwise shown, such verdict and judgment will be affirmed. 2. SAME — DAMAGES — <italic>Verdict of jury for damages for personal</italic> <italic>injury not set aside, where amount not so excessive as to</italic> <italic>indicate bias, prejudice or passion.</italic> The amount of damages for personal injury cannot be calculated with mathematical certainty, and the finding of a jury under proper instructions will not be disturbed except where the amount found is so excessive as to indicate that bias, prejudice or passion must have actuated the jury in such finding.

(Syllabus.) 1. PLEADING — <italic>Where pleadings raise questions or issues of fact,</italic> <italic>order overruling motion for judgment on pleadings proper.</italic> Where pleadings in a case raise questions or issues of fact, order overruling motion for judgment on the pleadings was proper. 2. APPEAL AND ERROR — <italic>Presumption judgment responsive to</italic> <italic>evidence introduced, and pleadings treated as amended to</italic> <italic>conform to both evidence and judgment.</italic> Where an appeal is by transcript and none of the evidence is before this court, generally, it will be presumed that the judgment was responsive to the evidence introduced and that the pleadings were treated by the parties as amended to conform both to the evidence and judgment. 3. INSURANCE — <italic>Liability of two insurers for pro rata share of</italic> <italic>loss covered by policies issued by two different companies</italic> <italic>covering same subject matter.</italic> Where, from a transcript of the pleadings, it is shown that successive policies have been issued by two different companies covering the same subject matter, the same risk and the same interest and no priority of insurance appears to have been provided for, both companies are insurers and liable pro rata and a judgment finding both insurers liable for the full amount of loss will be reversed with directions that each company be required to pay its pro rata share, and if one such company has paid the full amount of loss, then the other shall be directed to contribute its pro rata share of such payment.<page_number>Page 698</page_number>