Volume 206 — Oklahoma Reports

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of evidence to sustain verdict</italic> <italic>of jury.</italic> Where there is competent testimony which reasonably supports the verdict of a jury, and the court approves that verdict, the judgment based thereon will not be set aside on appeal. 2. WATERS AND WATER COURSES — <italic>Admissibility in evidence of</italic> <italic>easement over lands of plaintiff in action for damages.</italic> It was not error to admit in evidence an easement over lands of the plaintiff in an action for damages caused by the defendant in the exercise of his rights under the easement when such instrument justified the defendant's presence on the land of the plaintiff.

(Syllabus.) 1. TRUSTS — <italic>Parol evidence to establish resulting trust.</italic> A "resulting trust" is not within the statute of frauds, and may therefore be established by parol evidence. 2. 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 it is against the clear weight of the evidence.

(Syllabus.) 1. INFANTS — CUSTODY OF MINOR CHILD — <italic>Awarding custody of child</italic> <italic>— Determination of which custody is for best interest of minor</italic> <italic>child.</italic> Where the custody of a minor child is the issue contested between the grandmother and mother of the child and neither is shown to be unfit for such custody, this court will review the whole record and determine which custody is for the best interest of the minor child under all the facts and circumstances shown. 2. SAME — <italic>Judgment awarding custody of minor child to her mother</italic> <italic>not against clear weight of evidence.</italic> Record examined; Held, judgment of the trial court awarding custody of the minor child to her mother is not clearly against the weight of the evidence.

(Syllabus.) 1. BASTARDS — <italic>Bastardy proceeding in nature of civil action —</italic> <italic>Proof required.</italic> An action brought under 10 O.S. 1951 § 71[<cross_reference>10-71</cross_reference>], is in the nature of a civil action, and all that is required of the plaintiff is to prove the case by a fair preponderance of the evidence. 2. SAME — <italic>Necessity for objection to improper argument of</italic> <italic>counsel and to except to court's ruling thereon.</italic> In order to present alleged improper statements in the argument of counsel, it is necessary to object to the same when made and except to the ruling of the trial court thereon.

(Syllabus.) 1. EXECUTORS AND ADMINISTRATORS — <italic>Surviving spouse entitled to</italic> <italic>letters of administration with will annexed.</italic> The surviving spouse, if a competent person, is entitled to letters of administration with will annexed on the estate of a deceased spouse or to name some competent person to whom such letters shall be issued. 2. SAME — <italic>Right of surviving spouse to nominate an</italic> <italic>administrator.</italic> The surviving spouse, in the absence of incompetency, is not deprived of his right to nominate an administrator with will annexed by his election to take under the law of succession instead of under the will. 3. SAME — WILLS — MATTER OF PROBATE OF WILL — <italic>Surviving spouse</italic> <italic>not deprived of his statutory right to serve as administrator</italic> <italic>with will annexed by quantum of estate that may be inherited</italic> <italic>by him.</italic><page_number>Page 82</page_number> In a proceeding to probate a will the court cannot construe or interpret the will or distinguish between valid and void dispositions of the estate, and the quantum of the estate that may be inherited by him will not deprive the surviving spouse of his statutory, prior right to serve as administrator with will annexed, or to nominate such administrator.

(Syllabus.) APPEAL AND ERROR — <italic>Verdict supported by evidence not disturbed</italic> <italic>where no prejudicial errors shown in instructions or rulings</italic> <italic>of court.</italic> Where there is competent evidence reasonably tending to support a verdict and no prejudicial errors of law are shown in instructions or rulings on law questions presented during trial, verdict will not be disturbed upon appeal.

(Syllabus.) JUDGMENT — <italic>Validity of provision in final money judgment for 10</italic> <italic>per cent interest after default and until paid.</italic> Where the final money judgment in the original action provided for 10 per cent interest per annum after default and until paid, which conformed with the terms of the contract of indebtedness, such interest charge was permissible under the provisions of Title 15 O.S.A. § 274 [<cross_reference>15-274</cross_reference>], and was not invalid under the provisions of Title 64 O.S.A. § 51 [<cross_reference>64-51</cross_reference>], or article 14 of sec. 2 of Oklahoma Constitution.

(Syllabus.) APPEAL AND ERROR — <italic>Sufficiency of evidence to support judgment</italic> <italic>rendered on disputed question of fact.</italic> Where a judgment is rendered upon a verdict of the jury upon a disputed question of fact, said judgment will not be disturbed where the evidence reasonably tends to support the same.

(Syllabus.) APPEAL AND ERROR — <italic>Action to establish and enforce agister's</italic> <italic>lien on certain cattle — Held, whether plaintiff entitled to</italic> <italic>recover money judgment for value of feed furnished was</italic> <italic>question for jury, and denial of defendant's demand for jury</italic> <italic>trial was reversible error.</italic> Plaintiff brought an action against the defendant for the value of hay and other feed furnished by her to defendant for certain cattle pastured on her land and sought in the action to establish and enforce a lien on the cattle in her possession for the amount of the indebtedness, pursuant to the provisions of 4 O.S. 1951 §§ 192[<cross_reference>4-192</cross_reference>], [<cross_reference>4-194</cross_reference>] 194. Defendant denied the indebtedness and alleged that plaintiff had never furnished any hay or other feed for his cattle. When the case came on for trial defendant demanded a jury, which demand was by the trial court refused, to which defendant duly excepted. Thereupon the trial court proceeded to hear and determine the cause, and rendered judgment for the plaintiff for the amount she claimed due and for the foreclosure of a lien upon defendant's cattle: Held, that whether or not plaintiff was entitled to recover a money judgment against defendant on her cause of action for the value of feed furnished was a question properly triable to a jury, and that the trial court's denial of defendant's demand for a jury was reversible error.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Sufficiency of evidence to sustain</italic> <italic>orders of Industrial Commission based on finding as to cause</italic> <italic>of disability.</italic> The order of the State Industrial Commission in a cause properly before it, based on its findings as to the cause of the disability arising from an accidental injury, will be sustained when there is any competent evidence reasonably tending to support such findings. 2. SAME — <italic>Appeal from trial commissioner to Industrial</italic> <italic>Commission en banc — Requisites of hearing and order.</italic> On appeal to the State Industrial Commission en banc from an award of a single commissioner, it is the duty of the commission en banc to conduct a complete hearing on the record, and when such hearing has been conducted and the commission en banc denies an award, it is immaterial what language is used to deny said award so long as it is evident from the order entered that the commission has complied with the law regarding appeals and based its finding on the evidence in the record.

(Syllabus.) APPEAL AND ERROR — <italic>Where motion for new trial not filed within</italic> <italic>statutory time, appeal dismissed.</italic> Where motion for new trial is not filed within three days from the date of the verdict of the jury, and no showing is made that the motion was unavoidably prevented from being filed within the time, the appeal will be dismissed.

(Syllabus.) APPEAL AND ERROR — <italic>Review — Failure of defendant in error to</italic> <italic>file brief — Reversal.</italic> Where plaintiffs in error have served and filed brief, but the defendants in error have neither filed a brief nor offered any excuse for their 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 may be sustained, but may, where the authorities cited in the brief filed appear reasonably to sustain the assignments of error, reverse the cause, with directions.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Conclusiveness of verdict for plaintiffs</italic> <italic>where defendant fails to renew demurrer to evidence or request</italic> <italic>instructed verdict.</italic> Where the defendant, at the close of the evidence, fails to renew his demurrer to all of the evidence or request a directed verdict, and permits the issues joined to be submitted to the jury upon all the evidence without objection and exception, the verdict, on review in this court, is conclusive, so far as such evidence is concerned, except as to excessive damages, appearing to have been given under the influence of passion or prejudice. 2. SAME — <italic>Held, verdict was not excessive under evidence, and</italic> <italic>was not influenced by passion or prejudice.</italic> Record examined, and held: the verdict was not excessive under the evidence and does not appear to have been influenced by passion or prejudice. 3. CASES OVERRULED — <italic>Cases overruled so far as in conflict with</italic> <italic>this opinion.</italic> Picow v. Winters, <cross_reference>189 Okla. 45</cross_reference>, <cross_reference>113 P.2d 393</cross_reference>, and Saunders v. McKee, <cross_reference>177 Okla. 357</cross_reference>, <cross_reference>58 P.2d 1234</cross_reference>, are overruled in so far as they are in conflict with this opinion.

(Syllabus.) 1. INSURANCE — <italic>Action on hospital expense policy — Operation for</italic> <italic>which expense incurred must be covered by terms of policy.</italic> Before insured may recover expenses incurred for the performance of an operation under a hospital expense policy he must establish that the operation for which the expenses were incurred is covered by the terms of the policy.<page_number>Page 204</page_number> 2. APPEAL AND ERROR — <italic>Reversal — Judgment directed to be entered</italic> <italic>as provided by statute.</italic> This court, on reversing a judgment of the court of common pleas affirming the judgment of a justice of the peace court, where the appeal is taken from the justice of the peace court to the court of common pleas by bill of exceptions and petition in error, will direct that judgment be entered as provided by 12 O.S. 1951 § 982[<cross_reference>12-982</cross_reference>].

(Syllabus.) TROVER AND CONVERSION — JUDGMENT — <italic>Action to recover double</italic> <italic>value of personal it property of decedent embezzled or</italic> <italic>alienated — Judgment reversed where it does not conform to</italic> <italic>pleadings and proof.</italic> Where plaintiff bases his cause of action upon sec. 292 [<cross_reference>58-292</cross_reference>], Title 58, O.S. 1941, and a judgment is granted for the plaintiff for the return of specific personal property, upon which a lien is placed, and for the return of a specific sum of money which was alleged to have been embezzled, rather than<page_number>Page 249</page_number> for double the value of the property embezzled or alienated, such judgment is erroneous in that it is not in conformity with the pleadings and proof and will be reversed.

(Syllabus.) 1. EXTRADITION — <italic>Extradition proceedings controlled by Federal</italic> <italic>Constitution and statutes.</italic> Extradition proceedings are not creatures of state law, but are controlled by Federal Constitution and statutes. 2. PRINCIPAL AND AGENT — <italic>Agency question of fact — Jury verdict</italic> <italic>reasonably sustained by evidence not disturbed on appeal.</italic> Agency is a question of fact to be established by the evidence and where the verdict of the jury is reasonably sustained by such evidence a judgment entered thereon will not be disturbed on appeal. 3. AUTOMOBILES — <italic>Action to recover for wrongful death in</italic> <italic>automobile accident — Liability of sheriff for negligent act</italic> <italic>resulting in death of accused person.</italic> A sheriff of a county in the State of Illinois who voluntarily went to the State of Arizona to return one accused of a crime is liable in damages for his negligent act which resulted in the death of said accused person.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Sufficiency of conflicting evidence in law</italic> <italic>action tried to jury to sustain verdict.</italic> Where a law action is fairly tried to a jury and the evidence is in conflict, and the issues are submitted to a jury under fair instructions, the verdict of the jury and a judgment based thereon will not be disturbed on appeal. 2. TRIAL — <italic>Sufficiency of plaintiff's evidence to withstand</italic> <italic>demurrer and motion for directed verdict.</italic> Where there is any competent evidence presented by the plaintiff reasonably tending to establish plaintiff's cause of action alleged in his petition, defendant's demurrer to the evidence and motion for a directed verdict should be overruled.

(Syllabus.) APPEAL AND ERROR — <italic>Appeal dismissed when issues have become</italic> <italic>moot.</italic> When the issues presented on appeal have been rendered moot by acts subsequent to the appeal, and no impelling public question is presented, the appeal will be dismissed.<page_number>Page 300</page_number>

(Syllabus.) 1. APPEAL AND ERROR — PARTIES — <italic>Question of defect of parties</italic> <italic>must be raised in lower court by special demurrer or answer.</italic> The question of defect of parties defendant must be raised in the court below, and, if no objection be taken by either demurrer or answer, the defendant will, as a general rule, be deemed to have waived the same. 2. USURY — <italic>Record examined, and held evidence fails to sustain</italic> <italic>charge of usurious interest.</italic> Record examined; and held, that the evidence wholly fails to sustain the charge of usurious interest by plaintiff as alleged in defendant's answer.

(Syllabus.) 1. APPEAL AND ERROR — TRIAL — <italic>Refusal of requested instruction</italic> <italic>not reversible error where instructions as a whole state</italic> <italic>applicable law.</italic> Where the instructions, when considered as a whole, fairly state the issues and law applicable in a cause, the refusal to give requested instructions is not reversible error. 2. APPEAL AND ERROR — <italic>Jury's verdict and judgment of court not</italic> <italic>disturbed on appeal where evidence tends to support it.</italic> In law actions tried to a jury, the jury's verdict and judgment of the trial court based thereon will not be disturbed on appeal if there is any competent evidence reasonably tending to support it. 3. SAME — <italic>Sufficiency of evidence and instructions.</italic> Record examined, and judgment found to have been rendered under proper instructions, supported by competent evidence in accordance with substantial justice.

(Syllabus.) 1. SALES — <italic>Action to replevin truck — Demurrers to plaintiff's</italic> <italic>evidence properly sustained where plaintiff failed to plead or</italic> <italic>prove the laws of the State of Arkansas giving its lien</italic> <italic>priority.</italic> Where a dealer in Fort Smith, Arkansas, sold a truck under a conditional sales contract, which was subsequently assigned to plaintiff, and the contract expressly provided the truck was to be located in McCurtain county, Oklahoma, which contract was not filed in Arkansas nor in Oklahoma, and the purchaser, after removing the truck<page_number>Page 351</page_number> to Oklahoma, sold it to a dealer in Oklahoma, who later sold to the defendant Williams, and Williams then encumbered the property by mortgage now held by defendant The First National Bank Trust Company, and the defendants are both purchasers without notice of plaintiff's claim; Held, in an action to recover possession of the truck, where plaintiff failed to plead or prove the laws of the State of Arkansas, demurrers to plaintiff's evidence were properly sustained.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Review by petition in error and duly</italic> <italic>certified transcript of record.</italic> A decree sustaining a demurrer to a petition and rendering judgment for the defendant may be reviewed on appeal by a petition in error and duly certified transcript of the record under sec. 956 [<cross_reference>12-956</cross_reference>], 12 O.S. 1951. 2. SAME — <italic>"Record proper" — Action in sustaining motion for</italic> <italic>judgment on pleadings reviewable on transcript of record.</italic> The record proper in a civil action consists of the petition, answer, reply, demurrer, process, rules, order and judgment, and the action of the court in sustaining a motion for judgment on the pleadings may be reviewed on the transcript of the record where it appears from the judgment itself that it was rendered on the pleadings. 3. LIMITATION OF ACTIONS — <italic>Action to quiet title by holder of</italic> <italic>resale tax deed must be brought within two years.</italic> An action brought by the holder of a resale tax deed to quiet title to and obtain possession of the real estate described in the deed is governed by the statute of limitation prescribed by sec. 93 [<cross_reference>12-93</cross_reference>], subd. 3, 12 O.S. 1951, and must be brought within two years after the date of the recording of the resale tax deed.

(Syllabus.) APPEAL AND ERROR — <italic>Dismissal where petition in error not filed</italic> <italic>within statutory time.</italic> Where the petition in error is not filed in this court until after the expiration of three months from the date of the final judgment complained of and no order is made by the court extending the time, this court has no jurisdiction over the subject matter, and the appeal will be dismissed.

(Syllabus.) WORKMEN'S COMPENSATION — <italic>Employee of drainage district injured</italic> <italic>while mowing grass held not entitled to compensation.</italic> An employee of a drainage district who sustained an injury while engaged in mowing grass along the side of the levee of the ditch, the mower having been attached to and drawn by a tractor, was not engaged in an employment defined as hazardous by the Workmen's Compensation Act, and the State Industrial Commission was therefore without authority to award him compensation for such injury.

(Syllabus.) 1. WORKMEN'S COMPENSATION — <italic>Principal contractor, secondarily</italic> <italic>liable for compensation, shall have cause of action against</italic> <italic>subcontractor, primarily liable, to recover amount paid.</italic> Where an employee of a subcontractor receives a compensable injury under the Workmen's Compensation Act and the principal contractor fails to require the subcontractor to obtain compensation insurance for his employees, the subcontractor is primarily liable for the payment of an award entered by the State Industrial Commission and the principal contractor is secondarily liable, and where the principal contractor is compelled to pay the award he may maintain an action against the subcontractor to recover the amount paid (85 O.S. 1951 § 11[<cross_reference>85-11</cross_reference>]). 2. SAME — <italic>Final award of commission binding and question may not</italic> <italic>be litigated in subsequent action between same parties.</italic><page_number>Page 464</page_number> A final award of the State Industrial Commission is just as binding between the parties as is the judgment of any court of competent jurisdiction and a question litigated and decided by it may not again be litigated in a subsequent action between the same parties based on the award. 3. SAME — <italic>Held, trial court did not err in excluding evidence</italic> <italic>offered by defendant and entering judgment for plaintiffs.</italic> Record examined: Held the trial court did not err in excluding evidence offered by defendant and in entering judgment in favor of plaintiffs.

(Syllabus.) 1. HUSBAND AND WIFE — TRUSTS — <italic>No trust in favor of husband who</italic> <italic>takes title in wife to land he purchased in name of wife —</italic> <italic>Presumption gift was intended.</italic> Where a husband purchases land with his own money and takes title thereto in the name of his wife, no trust arises in favor of the husband by reason thereof, in the lands standing in the name of the wife, but the presumption of law, in the absence of clear and convincing evidence to the contrary, is that an advancement or gift was intended. 2. SAME — DIVORCE — <italic>Claim to any part of former wife's property</italic> <italic>must be established by right of decree, or by valid contract.</italic> When a husband, following a divorce, seeks to assert any claim to any part of his former wife's property, he must establish that right by the decree, or by a valid contract between himself and his former wife. 3. APPEAL AND ERROR — <italic>Disposition of case where judgment against</italic> <italic>weight of evidence.</italic> In an equitable action, this court will consider the whole record, weigh the evidence, and where the judgment of the trial court is clearly against the weight of the evidence, will render or cause to be rendered, such judgment as the trial court should have rendered.

(Syllabus.) 1. LABOR RELATIONS — <italic>Under contract of employers with United</italic> <italic>States to pay employees time and one-half for overtime work,</italic> <italic>employees not entitled to compensation irrespective of Fair</italic> <italic>Labors Standards Act and Portal-to-Portal Act.</italic> A contract by employers with the United States that the employees would be paid at rate of time and one-half the regular rate for overtime work and that the employers would comply with all federal laws and regulations including the Fair Labor Standards Act and regulations issued thereunder did not entitle employees to compensation irrespective of Fair Labor Standards Act and Portal-to-Portal Act, nor exempt employees from the provisions of the latter act. Portal-to-Portal Act of 1947 § 1 et seq., <cross_reference>29 U.S.C.A. § 251</cross_reference> et seq.; Fair Labor Standards Act 1938, § 1 et seq., <cross_reference>29 U.S.C.A. § 201</cross_reference> et seq. 2. SAME — <italic>Portal-to-Portal Act relieving employers from</italic> <italic>liability for failure to pay minimum wages or overtime for</italic> <italic>activity of employee prior to May 14, 1947, valid exercise of</italic> <italic>constitutional powers of Congress.</italic> Portal-to-Portal Act relieving employers from liability for failure to pay minimum wages or overtime compensation for any activity of an employee prior to May 14, 1947, except an activity compensable by either contract, custom or practice in effect at time of such activity, is a valid exercise<page_number>Page 489</page_number> of the constitutional powers of Congress. Portal-to-Portal Act, <cross_reference>29 U.S.C.A. §§ 251</cross_reference> et seq., <cross_reference>252</cross_reference>(a)(1)(d). 3. SAME — <italic>District court without jurisdiction of employees'</italic> <italic>action for overtime for time spent in going from means of</italic> <italic>transportation to premises to place of work and return, etc.</italic> The district court was without jurisdiction of employees' action for overtime compensation for time spent in going from means of transportation to premises to place of work and return, and time spent in changing clothes, and bathing as alleged in the complaint, in absence of allegation that any written or oral contract in force between employees and employer provided for payment for such preliminary and postliminary activities. Fair Labor Standards Act of 1938 § 1 et seq., <cross_reference>29 U.S.C.A. § 201</cross_reference> et seq.; Portal-to-Portal Act of 1947, § 1 et seq., 2(a)(1), (d); <cross_reference>29 U.S.C.A. § 251</cross_reference> et seq., <cross_reference>252</cross_reference>(a)(1), (d); Executive Order No. 9240. as amended, 40 U.S.C.A. § 326 note. 4. TRIAL — <italic>Order sustaining demurrer and dismissing action on</italic> <italic>ground petition failed to state facts entitling plaintiff to</italic> <italic>recover was proper.</italic> The order of the trial court sustaining the defendant's demurrer to the petition of the plaintiff, and dismissing the action, on grounds that the petition did not state facts upon which plaintiff was entitled to recover was proper.

(Syllabus.) 1. INDIANS — <italic>Restrictions under General Allotment Act and</italic> <italic>amendment run with the land — Applicable to heirs whether of</italic> <italic>Indian blood or not.</italic><page_number>Page 528</page_number> The restrictions under the General Allotment Act and the amendment thereto, February 8, 1887, c. 119, § 5, <cross_reference>24 Stat. 389</cross_reference> (<cross_reference>25 U.S.C.A. 348</cross_reference>), run with the land and are applicable to it, not only in the hands of the allottee, but of his heirs as well, regardless of whether the heirs are of Indian blood or not. 2. SAME — TAXATION — <italic>Interest of heir allotted by Trust Patent</italic> <italic>under General Allotment Act, not subject to ad valorem taxes</italic> <italic>during trust period.</italic> Interest of heir in land allotted by Trust Patent under General Allotment Act, February 8, 1887, c. 119, § 5, <cross_reference>24 Stat. 389</cross_reference> (<cross_reference>25 U.S.C.A. § 348</cross_reference>), is not subject to ad valorem taxes during trust period. 3. SAME — <italic>Purpose of the undertaking of United States Government</italic> <italic>in Trust Patent issued pursuant to General Allotment Act.</italic> The undertaking of the United States Government in Trust Patent issued pursuant to General Allotment Act, February 8, 1887, c. 119, § 5, <cross_reference>25 Stat. 389</cross_reference> (<cross_reference>25 U.S.C.A. § 348</cross_reference>), is to convey the lands at the end of the trust period free of all charge or encumbrance and imposes an obligation to keep the lands free from the burden or charge of state taxation, as well as of every other encumbrance.

(Syllabus.) 1. EMINENT DOMAIN — <italic>Condemnors' right of possession not vacated</italic> <italic>by subsequent demand for jury trial by landowner, nor</italic> <italic>subsequent jury verdict in excess of former award.</italic> In proper condemnation proceedings, when the commissioners have reported their assessment of damages and such award has been paid to the clerk of the court, the condemnors' right of possession and use of the premises is set up or established, and such possession or right of possession is not interrupted or vacated by the subsequent demand for jury trial by the landowner, nor by subsequent jury verdict in excess of the former award. 2. SAME — <italic>Right of either party to appeal from jury verdict in</italic> <italic>condemnation action on proper notice after overruling motion</italic> <italic>for new trial.</italic> From jury verdict in condemnation action either party may appeal on proper notice after overruling of motion for new trial. 3. SAME — <italic>Condemnor not required to make second deposit of jury</italic> <italic>verdict excess as condition precedent to preservation of</italic> <italic>possession, upon overruling of motion for new trial.</italic> Under circumstances of the preceding paragraphs, upon overruling of motion for new trial there is no requirement that condemnor make second deposit or additional payment of the jury verdict excess as a condition precedent to preservation of possession or right of possession set up or established by above-stated payment of commissioners' award. 4. PROHIBITION — <italic>District judge prohibited and directed as set</italic> <italic>out in conclusion of opinion.</italic> Held, defendant district judge should be prohibited and directed as set out in conclusion of opinion.

(Syllabus.) 1. APPEAL AND ERROR — <italic>Right of executor to appeal or bring error</italic> <italic>proceedings.</italic> The executor of an estate may appeal or bring error proceedings from a judgment, order or decree affecting the interests of the estate adversely. 2. INDIANS — <italic>Income accruing to headright of Osage Indian</italic> <italic>subsequent to his death not subject to payment of creditors'</italic> <italic>claims.</italic> Income accruing to the headright of an Osage Indian subsequently to his death may not be appropriated for the payment of claims of general creditors and this rule applies even though the beneficiaries under the will are not of Indian blood. 3. SAME — <italic>Osage Indian may not by will provide for payment of</italic> <italic>general creditors out of income accruing to his headright</italic> <italic>subsequent to his death.</italic> An Osage Indian may not by will provide for the payment of general creditors out of income accruing to his headright subsequent to his death. 4. SAME — <italic>Stipulation deemed to contemplate payment of debts</italic> <italic>only in so far as assets lawfully available therefor.</italic> A stipulation and agreement between beneficiaries under Osage Indian's will and heirs of such deceased Indian, both instruments being duly approved by the Secretary of the Interior providing that "after the full payment and discharge of all claims, debts and charges against the same hereafter allowed by the County Court of Osage County, Oklahoma, shall be divided" among the parties, is deemed to contemplate payment<page_number>Page 549</page_number> of debts only in so far as there are assets lawfully available therefor and does not authorize payment of claims of general creditors of deceased Osage Indian out of income accruing to the decedent's headright subsequent to his death. 5. SAME — <italic>Person who assumes to contract with an Indian does so</italic> <italic>subject to restrictions and limitations existing with</italic> <italic>reference to headrights.</italic> A person who contracts with an Osage Indian does so subject to restrictions and limitations existing in reference to headrights and is presumed to know such limitations.

(Syllabus.) 1. SOCIAL SECURITY AND PUBLIC WELFARE — <italic>Duty of Department of</italic> <italic>Public Welfare, Public Welfare Commission, and Director of</italic> <italic>Public Welfare as to disbursement of public welfare funds.</italic> It is the duty of the Department of Public Welfare, the Public Welfare Commission and the Director of Public Welfare, of Oklahoma, to disburse public welfare funds up to the exact percentage prescribed by the Legislature for the various expenditure purposes, as nearly as may be possible and practical. 2. SAME — <italic>Good faith attempt to comply with stated rule.</italic> A deviation from the above rule by which smaller percentages are disbursed may sufficiently approach the specified percentage as to demonstrate the absence of any willful<page_number>Page 584</page_number> intent to violate the stated rule and such as to demonstrate a good faith attempt to comply with the stated rule. 3. MANDAMUS — <italic>Discretion of court as to issuance of writ — Writ</italic> <italic>withheld in anticipation of performance of statutory duty.</italic> In considering an action in mandamus against a public official or board this court may exercise its judicial discretion, and may in a proper case withhold the writ in anticipation of performance of the declared statutory duty.

(Syllabus.) 1. MUNICIPAL CORPORATIONS — <italic>Street improvement bonds not</italic> <italic>liability against municipality.</italic> Where the city issues bonds covering certain street improvements to be paid for out of the funds arising from special assessments levied against the property within said improvement district, the liability becomes a liability in rem against the property, and is not a liability of municipality. 2. MANDAMUS — <italic>Scope of remedy to compel action by public</italic> <italic>official.</italic> A writ of mandamus will not issue to compel a public official to do an act which the law does not specifically enjoin upon him to perform or by clear and reasonable inference make it his duty to perform.<page_number>Page 635</page_number>

(Syllabus.) TRIAL — <italic>Motions by both parties for directed verdict should be</italic> <italic>overruled where evidence conflicting on material question —</italic> <italic>Jury trial not waived by each party moving for directed</italic> <italic>verdict.</italic> Where both parties move for directed verdict at close of evidence in action properly triable to a jury, neither motion should be sustained if record presented disputed and material question of fact on which there is conflicting evidence. The fact that both parties have moved for a directed verdict does not constitute a waiver of their right to have the disputed question of fact decided by the jury.

(Syllabus.) APPEAL AND ERROR — EVIDENCE — <italic>Prejudicial error in admission of</italic> <italic>incompetent evidence.</italic> Where incompetent testimony is admitted, and such evidence is highly prejudicial to the rights of the complaining party, the admission of such testimony constitutes reversible error.