Volume 21 — Oklahoma Reports

Original proceeding for mandamus by A/ D. Bryan against J. A. Menefee, State Treasurer. This is an application for writ of mandamus to compel the respondent, J. A. Menefee, State Treasurer, to pay auditor’s warrant No. 669, for the sum of $50, issued to the relator by the State Treasurer, the respondent herein, for payment of salary as bookkeeper in said Treasurer’s office.

<p>Error from DistHct Court, Pottawatomie Gountyj before B. IF: Burwell, Judge.</p> <p>. Action by May Sears, by her next friend, E. M. Sears, against the Shawnee Light & Power Company. Judgment for plaintiff, and defendant brings error.</p> <p>This was an action brought in the district court of Pottawatomie county by May Sears, by her next friend, P. M. Sears, against the Shawnee Light & Power Company, to recover damages for injuries received by her in coming in contact with a. guy wire and iron rod attachment, which were heavily charged with electricity, and which sustained a pole planted on one of the public streets of Shawnee and used by defendant in operating its plant. The case was tried to a jury, and on the plaintiff introducing her evidence the defendant demurred thereto, which demurrer was by the court overruled. The court then instructed the jury, which returned a verdict in favor of plaintiff for $6,680. The defendant filed its motion for new trial, which was by the court overruled, and the case is before us on proceedings in error.</p>

Application of C. L. Wagner for a writ of habeas corpus. On December 5, 1907, the mayor and council of the city of Kingfisher, Okla., passed an ordinance, No. 118, entitled “An ordinance providing for a levy and collection of a license tax on certain trades, occupations, callings, businesses and avocations, and regulating the same and providing penalties for violations thereof.” The ordinance provided for the punishment of persons engaged in business- without having paid a…

<p>1. COURTS — Appellate Jurisdiction — Submission by Governor to Supreme Court for Opinion — Conviction of Crime Requiring Punishment of Death. Wilson’s Rev. & Ann. St. 1903, sec. 5588, 5589, .provide that, immediately after a conviction requiring a judgment of death, there shall be transmitted to the Governor a statd*ment of the conviction and judgment and of the testimony given at the trial, and that the Governor may thereupon require the opinion of the judges of the Supreme Court, or any of them, upon the statement so furnished. Held that,' where such statement is submitted to the court for an opinion, the case is not in the Supreme Court as a suit upon which the judgment may be affirmed or reversed.</p> <p>2. CRIMINAL LAW — Sentence and Punishment — Murder—Plea of Guilty — Submission to Jury. Under Wilson’s Rev. & Ann. St. 1903, sec. 2174, providing that on an indictment for murder, where there is a plea of guilty, the court shall determine the punishment, it is the duty of the court on such a plea to fix the punishment, without submission of that question to the jury.</p> <p>3. SAME — Proceedings on Plea of Guilty — Irregularity. Defendant in an indictment for murder, having refused to plead thereto, the clerk was instructed by the court to enter a plea of not guilty, whereupon both parties announced ready for trial, and a jury was duly impaneled, and the county attorney made his opening statement. Defendant’s counsel then announced that defendant desired to plead guilty, and defendant, on inquiry by the court, stated that he wanted to plead guilty, and stated further to the jury that he did plead guilty. Thereupon the court instructed the jury to determine the punishment to be inflicted, and the verdict found the defendant guilty as charged, and fixed his punishment at death. No evidence was received as to his sanity, nor was he cautioned as to the effect of his plea. Held, that such proceedings were so irregular that it cannot be said that defendant was convicted according to law.</p> <p>(Syllabus of the Court.)</p>

<p>Appeal from, Hie United Slates Court for the Northern District of the Indian Territory, at Nowata; before Rosea Townsend, Judge.</p> <p>On rehearing.</p>

Application by the state, on the relation of James Stevenson, for writ of mandamus to S. H. Russell, judge of the district court of Carter county.

the United States Court for the Southern District of the Indian Territory, at Pauls Valley; before J. T. DicJcerson, Judge. B. F. Driggers was convicted of murder, and brings error.

Error from Probate Gouri, Caddo County. Action by Frank H. Ray against School District No. 9 of Caddo County. Judgment for defendant, and plaintiff brings error.

Error from District Court, Oklahoma County; before B. F. Bur-well, Judge. Action by Henry Faurot, by his next friend, Anna Faurot, against the Oklahoma Wholesale Grocery Company. Judgment for defendant, and plaintiff brings error.

Action by Myra Burgess against the Choctaw, Oklahoma & Gulf Bailroacl Company. Judgment for plaintiff. Defendant brings error. This cause came to this court from the United States Court of Appeals for the Indian Territory by virtue of the terms of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267), being one of the causes pending on the docket of said court not finally disposed of at the admission of the state into the Union.

Action by J. E. Hamilton against tlie Choctaw, Oklahoma & Gulf Railroad Company and others. Judgment for plaintiff, and defendants appeal to the Court of Appeals of Indian Territory, and petition for removal from the Supreme Court of the state to the United States Circuit Court.

Action by Jennie Hendricks against the Choctaw, Oklahoma & Gulf Eailroad Company. Judgment for plaintiff, and defendant appeals to the Court of Appeals in the Indian Territory. Appellant petitioned for removal of the cause from the Supreme Court of the state to the United States Circuit Court.

Error from Oklahoma, County Court; before Sam Hooker, 'Judge. ■Action by Frank P. Allsman and others against the city of Oklahoma City. Judgment for defendant, and plaintiffs bring error.

<p> Error from District Court, Kay County; before Bagará T. Rainer, Judge. </p> <p>Action by Van Arsdale & Osborne against A. Young to recover on a promissory note given on the 28th day of April, 1902, in the sum of $22.50, and $10 attorney’s fees. Judgment before a justice of the peace was rendered for the defendant, as it was also in the district court, and plaintiffs bring the case here by proceedings in error.</p>

Error from District Court, Garfield County; before John L. Pan-coast, Judge. ■ Action by Martha Spencer and others against the Hunter Eealty Company and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Comanche County; before F. E. Gillette, Judge. </p> <p>Action by E. B. Spencer against N. I. McLeod. Judgment for plaintiff, and defendant brings error.</p>

Error from the United States Court for the Central District of the Indian Territory, at Atokaj before Thos. C. Humphrey, Judge. Action by M. L. Clements against C. S. Lewis and others. Judgment for plaintiff, and defendants appeal.

Error from the United States Court for the Southern District of the Indian Territory, at Ardmore; before TLosea Townsend, Judge. Action by E. C. McLaughlin against the Ardmore Loan & Trust Company. Judgment for defendant, and plaintiff brings error.

Error from District Court, Kay County; before Bayard T. Earner, Judge. Action by the Hoppe Hardware Company against Dan A. Bain and C. 0. Baker. Judgment for defendants, and plaintiff brings error. This is an action in replevin, brought by the plaintiff in error (plaintiff below) against the defendants in error (defendants below) in the district court of Kay county, which resulted in judgment in that court for defendants.

<p>Appeal from the United States Court for the Central District of the Indian Territory, at Durant; before Thomas C. Humphrey, Judge.</p> <p>Action by the First National Bank of Bokchito against W. R. Harris. Judgment for plaintiff, and defendant appeals.</p>

<p>1. WRIT OF ERROR — Preserving Record — Exceptions—Necessity. This 'court will not consider an alleged error of the trial court unless such alleged error appears on the record of the case and exception was taken thereto in the trial court.</p> <p>2. SAME — Separate Defenses — General Finding of Court — Sufficiency of Evidence. Where a jury is waived and the cause submitted to the court, and where complete, separate defenses are set up ,by defendant, a general finding of the trial court in favor of the defendant will not be disturbed by this court, if the evidence fairly tends to support either of the defenses.</p> <p>3. SPECIFIC ¡PERFORMANCE — Defenses — Contract Abandoned. It is not error to refuse a decree of specific performance upon a contract that has been abandoned by both parties.</p> <p>4. SAME — Performance Impossible. A court of equity will not knowingly decree an impossibility, and where W., who owned a farm on which there was a mortgage, mg.de a contract with S. to convey to him the same free of all incumbrance, where it appeared that said mortgage had not been .paid, and that defendant was unable to pay the same, and where S. insisted upon a conveyance of said land free of incumbrances, and expressed no willingness to accept the incumbered title, the court- correctly refused a decree of specific performance.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Gh'ant County; before James K. Beau-champ, Judge. Action by the Citizens' Bank of Wakita against J. E. Garnett and another. Judgment for defendants, and plaintiff brings error.

Error from District Court, Carfield County; B. F. Burwell, Judge. Action by the First National Bank of Enid against J. E. Forbes upon a dffaft. Judgment for plaintiff, .and defendant brings error.

<p> Error from the United States Court for the Central District of Indian Territory, at Atolcaj Thomas C. Humphrey, Judge. </p> <p>Action in replevin by D. B. Hussey against W. W. Blaylock. Judgment for defendant, and plaintiff brings error.</p> <p>On July 14, 1905, D. B. Hussey,' plaintiff in error, plaintiff below, sued W. W. Blaylock, defendant in error, defendant below, in replevin before the United States Commissioner within and for the Atoka-Coalgate Division of the Central District of the Indian Territory, for one black horse mule, not branded, six years old and about sixteen hands high, “worth $125”; one blue mare mule, not branded, six years old, about sixteen hands high, and “'worth $125”; one 3% Milburn wagon, “worth $25”; one log chain, “worth $2”; and one set of harness, “worth $15.” Defendant for answer set up that he was an innocent purchaser for value of the property from one J. L. Cannon. There was judgment for the defendant, and again on trial anew in the United States Court in the Indian Territory, Central District at Atoka, where the case was appealed, from which judgment plaintiff prosecuted a writ of error to the United States Court of Appeals in the Indian Territory, and the same is now before us for review.</p>

lirror from District Court, Canadian County; C. F. Irwin, Judge. Action by A. A. Plotner against Chillson & Chillson. Judgment for defendants, and plaintiff brings error.

<p>BANKS AND BANKING — Deposit of County Treasurer — Insolvency— Preference. Where a county treasurer, prior to the passage of the law providing for the designation of county depositories, made a general deposit of the county funds in a bank in his own name as treasurer, the title to the money 'did not pass, although there ■was no agreement that the identical money should be returned, and upon the bank becoming insolvent the county was entitled to recover an equal amount from the receiver of the bank prior to the payment of general depositors.</p> <p>(Syllabus by the Court.)</p>

<p>REPLEVIN — Pleading—Answer—Specific Denial. Under the practice and procedure act of the state of Arkansas in force in the Indian Territory prior to statehood, all that was necessary, in order to enable the defendant in replevin to prove any 'defense he may have had, was to deny specifically all the allegations of the plaintiff’s complaint.</p> <p>Syllabus by the Court.)</p>

<p> Error from the United States Court for the Western District of Indian Territoryj Wm. E. Lawrence, Judge. </p> <p>Action by the Tulsa Water, Light, Heat & Power Company against John 0. Mitchell and others to enjoin defendants from constructing and maintaining a system of waterworks to be owned and operated by the city of Tulsa,- from submitting the question to the city, from issuing waterworks bonds, and from supptying the inhabitants of that city or using for itself water from any system of waterworks constructed by the city. Judgment for plaintiff, and defendants appealed to the United States Court of Appeals of Indian Territory, whence the cause came to the Supreme Court of Oklahoma under the enabling act.</p> <p>On the 27th day of July, 1906, plaintiff below (appellee here) filed its complaint in equity against the defendants below (appellants here) in the United States court for the Western district of the Indian Territory at Tulsa. Upon application by plaintiff a temporary injunction was granted in the action by the Honorable Wm. R. Lawrence,- judge of the .United States court for said district. On the 10th day of October, 1906, plaintiff filed its amended complaint, in which it states: That it is a corporation organized and existing under and by virtue of the laws of the United States in force in the Indian Territory. That on the 28th day of September, 1903, the common council of the city of Tulsa passed an ordinance which was duly approved and became effective. That said ordinance was enacted in accordance with the law in such cases provided, and granted a franchise and contract to one George G. Bayne, of Joplin, Mo., his heirs, associates, and assigns, for the purpose of supplying the city of Tulsa with water. That said ordinance was entitled:</p> <p>“To provide' for supplying with water th® streets, lanes, alleys, squares and' public places in the city of Tulsa, Ind. Ter., and for the contracting with Geo. G. Bayne, of Joplin, Mo., his heirs, associates or assigns, for the purpose of supplying with water such streets, lanes, alleys, squares and public places.”</p> <p>That section I provides:</p> <p>“The city of Tulsa, Ind. Ter., hereby contracts with Geo, G. Bayne, of Joplin, Mo., his heirs, associates or assigns, for the supplying with water the streets, lanes, alleys, squares and public places in said city, upon the terms and conditions contained in the following sections of this ordinance.”</p> <p>That section 2 provides:</p> <p>“This contract shall'remain and be in full.force for the term of thirty years, from and after date of passage of this ordinance. During said full'term of thirty years (except sooner purchased by the city as herein provided) the said Geo. G. Bayne, his heirs, associates or assigns, shall have the exclusive right to maintain and operate waterworks for supplying said streets, lanes, alleys, squares and public places with water and for the extinguishing of fires in said city. Said water to be supplied from wells adjacent to the Arkansas river to supply the'domestic use and in an emergency from the Arkansas river. * * * ”</p> <p>That section 3 provides:</p> <p>“That the said Geo. G. Bayne, his heirs, associates or assigns, be and is hereby authorized to establish, construct, maintain and operate waterworks in, or adjacent to said city of Tulsa, and to use any or all of the streets, lanes alleys, or public grounds of said city, or so much thereof a* may be necessary in which to lay water-pipes and maintain all the appliances necessary or proper for the supplying of water. * * * ”</p> <p>A copy of said ordinance is attached to plaintiffs complaint as an exhibit. The complaint alleges that, before any work was begun under said ordinance, Geo. G. Bajme sold, transferred, and assigned all his interest therein to plaintiff, and that it had complied with the terms of said ordinance to the extent of constructing a complete system of waterworks for the city qf Tulsa, and that said system of waterworks had been in operation for a period of nearly two years, and that in constructing, operating, and maintaining said waterworks it had .expended thousands of dollars, and that it was at the time of the institution of this- suit supplying said city and its inhabitants with all the water needed for the purposes prescribed in said ordinance. And plaintiff further alleges that it was preparing to issue bonds for the purpose of extending said water plant and for the maintenance of its present waterworks system. It further alleges that the city of Tulsa, through its council, had passed a resolution instructing its attorney to go to Muskogee and consult with the judge of the court on the'necessity of taking a census prior to the issuance of waterworks bonds; that the council of said city of Tulsa, on July 2, 1906, by resolution, instructed its attorney to take all necessary steps to procure- the issuance of $100,000 of waterworks bonds for the construction and completion of a water system for the city of Tulsa, and that the council'of the city of Tulsa wa$,.at the time of the' institution of this suit, proceeding to prepare and issue bonds for the purpose of building a waterworks system for the city of Tulsa; that plaintiff, by such acts of the city council of the city of Tulsa, would be divested of its rights acquired in the construction and maintenance of its water system under said ordinance. It prayed for an injunction against the defendants enjoining them from attempting to construct and maintain a system of waterworks, to be owned and operated by the city 'of Tulsa, from submitting said question to the city of Tulsa, and from issuing waterworks bonds in the sum of $100,000 or any other sum for the construction of a system of waterworks for the city of Tulsa, and from supplying to the inhabitants of said city or using for itself water from any system of waterworks constructed by the said city of Tulsa. Plaintiff further alleges four other causes of action in its complaint.</p> <p>Upon final hearing of the case, defendants filed a demurrer to each and all of plaintiff’s alleged causes of action, and- the court sustained the demurrer to all said causes of action except the first; but, as to the first alleged cause of action, it overruled defendants’ demurrer, to which defendants excepted and refused to plead further. Whereupon the court rendered judgment in favor of plaintiff and made perpetual the temporary injunction theretofore granted’by the Honorable’ Wm. E. Lawrence, judge of the United States court for said district, by which defendants were perpetually enjoined from attempting to construct and maintain a system of waterworks to be owned and operated by the city of Tulsa, from submitting said question to the inhabitants of the city of Tulsa, and from issuing waterworks bonds in the sum of $100,000, or any other sum for the construction of a. system of waterworks for said city of Tulsa, and from supplying the inhabitants of said city with water, and from using for themselves water from any system of waterworks constructed by the said city of Tulsa. • From this judgment of the court, defendants appealed to the United States Court of Appeals of the Indian Territory, where the case was pending at the time of the admission of the state into the Union, and it comes to this court under provisions of the enabling act.</p>

<p> Error from District Court, Logan County; John H. Burford, Judge. </p> <p>Action for injury to animal by Joel Ferguson against the Missouri, Kansas & Oklahoma Railroad Company. Judgment for plaintiff. Defendant brings error.</p> <p>On April 30, 1904, Joel Ferguson, defendant in error, plaintiff below, sued the Missouri, Kansas & Oklahoma Railroad Company, plaintiff in error, defendant below, hereafter called plaintiff and defendant, before a justice of the peace in Logan county, Okla. T., in damages for injury to an animal in the sum of $75, which was appealed to the district court of Logan county, and on trial anew in that court judgment was rendered in favor of the plaintiff, from which defendant has appealed to this court.</p> <p>The complaint, in substance, alleges that defendant, Missouri, Kansas & Oklahoma Railroad Company, a corporation, was engaged in the business of owning, operating, and constructing a railway in said county and territory, and, while on February 37, 1904, by its employes and agents constructing a wire fence along its right-of-way across a farm, which plaintiff was occupying as tenant, carelessly and loosely stretched four strands of barbed •wire the full distance .across said farm, and securely fastened them with staples at both ends, leaving said strands lying on the ground in an exceedingly dangerous and hazardous position; that said line of fence, when completed, would form a part of an inclosure, belonging to plaintiff, where he had a large number of cattle and horses running at large, which fact defendant well knew; that by reason of said negligent construction of the fence on the part of the defendant a certain mare owned by plaintiff became intan-gled in said wire, seriously cutting and wounding it to its permanent injury, and to the damage of plaintiff in the sum of $75, for which he prays judgment, together with the sum of $30 for the loss of its services and $4 for medicines supplied by him in taking care of and treating the animal, in all the sum of $99.50.</p> <p>For answer defendant pleads a general denial, and states in substance, that the alleged injury was occasioned, if at all, by the act of servants, agents, or employes of an independent contractor or subcontractor, and not by the act of any agent, servant, or employe of the defendant; that the name of the contractor with whom said defendant made á contract for the erection of fences along its right-of-way was N. G. Yandeventer, and that a copy of said contract would be produced on the trial.</p> <p>There was a trial to a jury, and after plaintiff had introduced evidence fairly tending to establish the allegations in his ■petition, defendant offered to prove that the negligence complained of was that of an independent contractor, as set forth in its answer, and offered in evidence its contract with N. G. Yandeventer, as such, wherein he agreed to furnish the men and material and construct, for an agreed price, some 250 miles of wire fence along defendant’s right-of-way, of which the fence in question was a part, dated April 28, 1902. This was objected to by counsel, and excluded by the court, and exceptions saved. There was a verdict and judgment for plaintiff, from which defendant appealed.</p>

Error from District Court, Caddo- County; P. E. Gillette, Judge. Action for wages by W. F. Mashore against the Chicago, Eock Island & Pacific Eailway Company. Judgment for plaintiff: was affirmed in the district court, and defendant brings error.

Error from, the United States Court for the Central District of the Indian Territory, at Atoha; Thomas C. Humphrey, Judge. Emmett Rutherford was convicted of grand larceny, and appeals.

Error from the United States Oowt for the Western District of the Indian Territory, at Muskogee; Wm. B. Lawrence, Judge. Action by T. T. Godfrey against the Iowa Land & Trust Company. Judgment for defendant, and plaintiff brings error. On the 10th day of April, A. D. 1906, the plaintiff in error, as plaintiff in the court below, filed his first amended complaint against the defendant in error, the defendant in said court, seeking to have a certain deed declared a mortgage.

Error from District Court, Nolle County; Bayard T. Hainen Judge. Action on railtoad bonus note by the Arkansas Yalley & Western Railway Company against the Farmers’ & Merchants’ Bank. Judgment for defendant, and plaintiff brings error. On the 5th of May, 1904, plaintiff in error, plaintiff below, filed its petition in the District court of Noble county, Okla. T., against the above-named defendant in error on a certain note or contract in writing, as follows: “$1,000.

Error from District Court, Garfield County; M. C. Garber, Trial Judge. Regulation of freight rates. Suit bj^ the territory of Oklahoma against the-Chicago, Rock Island & Pacific Railway Company. Injunction against charging certain freight rates. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Actual Controversy — Hypothetical Case. The Supreme Court will not decide abstract or hypothetical cases, disconnected from the -granting of actual relief, or from the determination of which no practical relief can follow.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Caddo Countyj Frank E. Gillette, Judge. Thomas .Gibbons was convicted of murder, and brings error.

Error from Probate Court, Kingfisher County; Jno. M. Graham, J.udge. Action in replevin by John C. Hill against J. P. Love, sheriff of Kingfisher county, and others. Judgment for plaintiff, and defendants bring error. This is an action in replevin filed in the probate court of Kingfisher county on September 29, 1905, by John C. Hill, plaintiff, against J. P Love, as sheriff of Kingfisher county, for the possession of 21 head of hogs, valued at the sum of $148.

Frror from District Court, Kingfisher County; C. F. Irwin, Judge. Action on contract of indorsement by M. I). Tait against R. H. Grimes. Judgment for plaintiff, and defendant brings error. This action was brought by M. D. Tait, defendant in error (plaintiff below), against R. H. Grimes, plaintiff in error (defendant below), as indorser of two certain promissory notes.

Error from District Court, Garfield County; C. F. Irwin, Judge. Action for recovery of real property by Albert Hammer against Fred S. Eogers and others. Judgment for defendants, and plaintiff brings error.

<p>Application by tbe state, on the relation of Janies Stevenson, for writ of mandamus to R. McMillan, judge, and T. J. Austin, clerk.</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by Ezekiel Wheeler against the People’s National Bank of Kingfisher. The National Bank of Anadarko was made party defendant. Judgment for plaintiff and judgment over against the Bank of Anadarko, and the People’s National Bank brings error. Ezekiel Wheeler, defendant in error, was a money lender residing at Kingfisher, Okla.

Petition by the state, on the relation of Edward Brady, county attorney, for writ of mandamus to Theo D. B. Frear, judge of the county court of Craig county. This action was commenced in this court by filing a petition for a writ of mandamus on the 15th day of May, A. D. 1908, on the part of the relator.

<p> Error from District Court, Kingfisher County; C. F. Irwin, Judge. </p> <p>Action for partition by C. R. Punk against Lucy Baker, aud others. Judgment for defendants, and plaintiff brings error.</p> <p>C. R. Punk, plaintiff in error (plaintiff in the court below), brought this action in the district court of Kingfisher county against Lucy Baker, Christina Wright (nee Baker), Griffith Baker,. Joseph Baker, Isaac Baker and Esau Baker, defendants in error (defendants below). In his petition filed in that court on the 25th day of September,. 1905, plaintiff alleges: That on May 3i, 1899, one Edward Baker died intestate in Kingfisher county, owning at the time and residing on as his home and exempt homestead the southwest quarter of section 15, township 18 north, range 5; that the said deceased at his death left surviving him a widow, Lucy Baker, and his six children, Joseph Baker, Christina Baker, Griffith Baker, Edward Baker, Jr., Esau Baker, and Isaac Baker, all of lawful age; that the said Lucy Baker by reason of being the widow of deceased, Edward Baker became at the death of Edward Baker the owner of an undivided one-third interest in the above described land, and each of said children became the owner of an undivided one-ninth interest in said lands; that on October 17, 1901, Lucy Baker applied for appointment as administratrix of the estate of her deceased husband, and, after fixing the date for the hearing thereof, the notice in due form being given, the probate court of Kingfisher county duly appointed her administratrix of said estate; that on November 18, 1901, the probate court ordered notice to creditors in due form to present their claims, and on -August 4, 1902, the probate court entered a finding and decree that due notice had been given; that no claims were filed or presented, and the estate was not indebted; that on August 4, 1902, Lucy Baker filed her petition to -set apart personal property for her use; “that on the same date a petition and application of the said Lucy Baker was filed to have set apart ‘the homestead to hex for her occupancy and that' of her grown son Joseph Baker/ who supported her, and on the same date an order was made that the said land ‘be set apart for the use of the family of the said Edward Baker, deceased, and that the same be not subject to administration.’ ”</p> <p>Plaintiff alleges that on August 15, and August 17, 1903, he purchased and became the owner of the interest of Griffith Baker, Edyard Baker, Jr., and Esau Baker in said land, and that at the time of filing this suit, defendant Lucy Baker was the owner of an undivided one-third interest, while the defendants Christina Wright, Josepli Baker, and Isaac Baker, each had an undivided one-ninth interest, and that plaintiff was the owner of an undivided one-third interest in said lands. Plaintiff alleges that he repeatedly, but in vain, attempted to obtain an amicable division or purchase of the lands; that it was the purpose of the defendant Lucy Baker to occupy the said lands as long as possible, regardless of the rights of this plaintiff or of the law, and plaintiff prayed for an adjudication of the rights of the parties.to the action in the lands and for the partition thereof.</p> <p>Defendants demurred to petition of plaintiff upon- four grounds, but only one ground of the demurrer is presented to this court for consideration, which ground is that the petition did not state facts sufficient to constitute a cause of action. The trial court sustained defendants’ demurrer to plaintiff’s petition, and defendants refused to plead further. Whereupon the court rendered judgment dismissing plaintiff’s petition. '</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by James Bartlett against the Chicago,' Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.

Error from District Court, Oklahoma County; B. F. Burwell, Judge. Action by the Northwestern Consolidated Milling Company against M. C. Bales. Judgment for plaintiff, and defendant • brings error.

<p>1. FORCIBLE ENTRY AND DETAINER — Notice to Quit — Time of Service. In an action of 'forcible detainer, a notice to quit the premises, for the possession of which the action was brought, served on defendants more than 10 months before the action was brought, fails to 'comply ¡with section 5085, Wilson’s Rev. & Ann. St. Okla. 1903, and to give the court jurisdiction of the subject-matter of the action.</p> <p>2. SAME — Waiver , By Lapse of Time. In such action, if any considerable time elapse between the giving of such notice and the commencement of the suit, such lapse of time operates as a waiver of such notice.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Payne County; John H. Burford, Judge. Action by Mary E. Dunmyer against John Maas, by his guardian, G. W. Longan, and others. Judgment for plaintiff:, and Maas, by his guardian, brings error.

Original proceeding by the state of Oklahoma, on relation of Eobert J. Edwards, for a writ of mandamus directed to John E. Millar, as mayor, and A. E. Clement, as city clerk, of Norman, requiring execution and delivery of city bonds.

<p>1. APPEAL AND ERROR — Time of Filing Petition. When an order discharging or dissolving a garnishment is made (section 4759, Wilson’s Rev. & Ann. St. 1903), the .party who obtained such garnishment having excepted to such order for the purpose of having the same reviewed in the Supreme Court upon petition in error, the court or judge granting said order shall, upon application of the proper party, fix the time, not exceeding thirty, days from the discharge or dissolution of said garnishment, within which such petition in error shall be filed with the clerk of the Supreme Court.</p> <p>2. SAME — Delay in Filing — Dismissal. A petition in error, for the purpose of reviewing an order of the district judge made in chambers, dissolving a garnishment, will be dismissed, where it is filed with the clerk of the Supreme Court more than 30 days after the making of such Order.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washita Countyj M. C. Garber, Judge. </p> <p>Action by John Haier against D. J. McDonald and Eli McDonald. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Kingfisher Gountyj G.-F. Irwin, Judge. Action by Ella E. Snowden and James L. Admire against Mathew Clowers and Charity Clowers. Judgment for plaintiffs, and defendants bring error.

<p>EVIDENCE — Weight — Conclusiveness on Party Introducing Document. A party offering in evidence a written instrument is not absolutely bound by the terms of such document so as to prevent him from introducing such further testimony relating thereto as may be necessary to show its connection with the matter in dispute which he is seeking to establish.</p> <p>(Syllabus bv the Court.)</p>

Error from District Court, Comanche County; E. E. Gillette Judge. Action by the Bank of Commerce of Walter against S. K. Royce and others.

<p> Error from, District Court, Blaine County; James K. Beauchamp, Judge. </p> <p>Action by John P. Bowmaker against I. H. Lookabaugh. Judgment for plaintiff, and defendant brings error.</p> <p>This action was brought by John P. Bowmaker, defendant in error (plaintiff below), against I. H. Lookabaugh, plaintiff in error (defendant below), to cancel a certain real estate mortgage. After a jury had been impaneled and -all the evidence of both parties was introduced, upon agreement of both parties to the action, the jury was excused, and the cause submitted to the court upon questions both of law and fact. The court found for the plaintiff, and rendered judgment canceling the mortgage as to the N. W. 14 of section 22, township 16 N., range 12 W., but not as to the S. E. Vi of section 2, township 19 N., range 10 W. From the judgment of the trial court appeal has been taken to this court. The matters presented- by petition of plaintiff in error require a somewhat voluminous statement of the facts which will appear in the body of the opinion.</p>

<p>Error from District Court, Oklahoma County; B. F. Burwell, Trial Judge.</p> <p>Action by D. L. Myers against G. W. Eear and J. N. Eear. Judgment for defendants, and plaintiff brings error.</p>

<p>1. AiPPEAL AND ERROR — Subsequent Appeals — Previous Decisions as Law of the Case. A question decided by the Supreme Court on a former appeal becomes the law of the case in all its stages, and will not ordinarily be reversed upon a second appeal of the same case when the facts are substantially the same.</p> <p>2. SAME — Decisions by Territorial Court. The same rule applies where the former decision was made by the late territorial Supreme Court, this court being the successor of that court.</p> <p>3. SAME — Examination of Record. A record on a former appeal in the same action may be looked into for the purpose of ascertaining what facts and questions were before the court, so as to see to the proper application of the rule that such decision is the law of the case.</p> <p>4. SAME — Trial Court’s Conformity to Decision — Finality. If upon a cause being remanded for a new trial, the court below has proceeded in substantial conformity to the directions of the appellate court, its actions will not be questioned on a second appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Probate Cowrt, Beaver County; H. D. Mees, Judge. </p> <p>Action by T. M. Latham against J. J. McAdams. Judgment for plaintiff. Defendant brings error.</p> <p>On the 13th day of November, A. D. 1905, the defendant in •error, as plaintiff, commenced, against the plaintiff in error, as defendant, in the court below, this action for $148.50, balance due on a pasturage contract in writing, entered into originally between E. 0. Oneal, through the defendant in error, as agent, and the plaintiff in error; said contract having been thereafter duly assigned to the defendant in error.</p> <p>Plaintiff in his petition states that the defendant is a resident of Hardeman county, Tex., and is indebted to him in the sum of $148.50, balance due for the pasturage of certain cattle, under a contract made and dated in the county of Hutchinson, state of Texas, on the 12th day of August, 1904, and signed, “E. 0. Oneal, by T. M. Latham, agent, and J. J. McAdams”; that the said contract was duly executed and delivered on s,aid date at said place; that a copy of said contract is thereto attached as an exhibit, and made a part thereof. Plaintiff further states that he signed said contract as the agent of E. 0. Oneal, but that, by an agreement with said E. 0. Oneal, and by and with his consent, lie, the said plaintiff, was and is the real party in interest, that said plaintiff has faithfully carried out all the provisions of said contract, and that he has received, in payment therefor, all of said money due on said contract; except a balance, of $148.50, and that, since the expiration of said contract, and the notification of the defendant, by the plaintiff, of his readiness to deliver the cattle upon the payment, by said defendant, of the balance due on said contract, he has refused to do so, and that, also, for the care in furnishing a man to look after said cattle, there is a further sum due plaintiff of $30; the said amount, including the pasturage on said cattle, making a total sum due said plaintiff of $178.50. Said complaint was duly verified by said plaintiff.</p> <p>On the 16th day of December, 1905, defendant appeared specially, and filed his demurrer and answer to said petition, demurring thereto on the ground: First, that the court had no jurisdiction of the person of the defendant, in that it appeared therefrom that the defendant was a nonresident of the territory of Oklahoma, and that hé failed to show that the said property was located in the territory of Oklahoma; second, because the court had no jurisdiction of the -said cattle on which plaintiff sought to establish a lien, in that it did not appear from the allegations that said cattle were located within said territory, but that it did appear, from a copy of the contract attached to plaintiffs petition, that the cattle were located and situated in Hutchinson county, in the state of Tesas, and that therefore said court was without jurisdiction ; and third, because said petition did not state facts sufficient to constitute a cause of action. And further for answer defendant, reserving the rights under said demurrer, and appearing specially and solely for the purpose of said plea, alleged that he was a nonresident of the territory of Oklahoma, residing in Cottle county, state of Texas, and that he had no property situated, or debts owing to him, in the territory of Oklahoma; and further alleged that, in the event it happened that he had 18 head of cattle, in the possession of said plaintiff, located in the territory of Oklahoma, then he averred and charged that said plaintiff had stolen said cattle from him, and taken said cattle from the possession of the defendant in Hutchinson county, Tex., without the knowledge or consent of the defendant, and had driven same from the state of Texas into the territory of Oklahoma, for the fraudulent purpose of conferring jurisdiction on said court; and further that if defendant is mistaken in saying that plaintiff had stolen 18 head of cattle from the possession of the defendant in Texas, and driven said cattle into the territory of Oklahoma for the fraudulent purpose of conferring jurisdiction on sa'id court, then defendant averred and charged that the plaintiff had stolen said cattle from Hutchinson county, Tex., and had driven them into the territory of Oklahoma for the purpose of appropriating said cattle to his own use and benefit, and for the purpose of depriving the defendant of the value thereof. The defendant further stated that if he be required to answer further, not waiving the demurrer and special plea to the jurisdiction of the court herein set forth, then he denies all and singular each and every allegation in plaintiff’s petition contained; and further the defendant denied that he bad ever executed the contract attached to plaintiff’s petition, forming the basis of said cause, in the manner and form alleged by plaintiff; and further denied that he had ever executed any similar contract, wherein plaintiff was the real party in interest; and further denied that he had ever executed any contract wherein he employed the plaintiff to do any service for him, and denied that plaintiff had ever performed any services for him, as alleged in said petition, or that, if plaintiff ever performed any service of any kind for defendant, then defendant avers that such service has been paid for in full, and that defendant is not indebted to plaintiff in any amount whatever. The plea in answer of said defendant was duly verified.</p> <p>Thereafter, on the 5th day of January, A. D. 1906, said case came on for hearing, and the plaintiff, T. M. Latham, appeared in person and by his attorney, M. G-. Wiley, but the defendant, J. J. McAdams, failed to appear, either in person or by attorney. The plaintiff asked leave and was permitted by the court, to amend his petition by interlineation, as shown in the record, said amendment being made in the absence of the defendant, and without notice to the defendant, either verbal or written; said amendment by interlineation being in words and figures as follows: “The said cattle being now -in Beaver county, Oída. T,”; and thereupon the following judgment was entered, to wit:</p> <p>“Now on this 5th day of January, 1906, said causé coming on to be heard, and the defendant appearing not, the plaintiff having submitted evidence, and proving to the satisfaction of the court that the sum of $148.50 is due plaintiff from defendant, as prayed for in plaintiff’s bill of particulars in said cause, it is hereby ordered and adjudged by the court that plaintiff have judgment against the defendant for the sum of $148.50.”</p> <p>Thereafter, on the 12th day of January, 1906, the defendant filed what is termed in the record as a “motion for a new trial,” in words and figures as follows, to wit:</p> <p>“Comes now the defendant in. the above-styled cause, and moves the court for a new trial therein, for the following reasons, to wit: First, tbe defendant states that the reason this motion was not filed within the three days from the date of rendering said judgment is because the defendant had employed Duncan G-. Smith to represent him therein, and that said Duncan G-. Smith expected to be present at said trial, but on account of sickness of said Smith it was impossible for him, or the defendant, to be present, and that he was in a hospital in Chicago at the date of the rendering of said judgment; second, the defendant states that there were irregularities occurring at said trial, as follows: That the court continued the said cause from the 3d day of January, 1906, to the 5th day of January, 1906, without notice to this defendant, or his counsel, and without any showing being made by said plaintiff; that the court virtually sustained the demurrer of said defendant to the said petition- of said plaintiff, and the plaintiff confessed the same by asking, and being granted, leave to amend his petition on January 6, 1906, by interlineation, by interlining as follows: ‘And said cattle now being in Beaver county, Okl. T'.’; that after allowing said amendment, the court rendered judgment by default against said defendant, and without giving defendant notice of such amendment, and without giving defendant time to answer to said petition as amended; that hy reason of the foregoing facts, defendant was prevented from having a fair trial, and his substantial rights in the premises were thereby impaired.5’</p> <p>Afterwards, on the 16th day of January, 1906, the following journal entry was entered:</p> <p>“* * * The motion for a new trial therein, made by the said defendant, coming on to' be heard, and said defendant, J. J. McAdams, appearing by his attorney, R. H. Loofbourrow, the said plaintiff appearing not, either in person or by attorney, though counsel for said plaintiff had been notified thereof, the court, after hearing the argument of counsel, and being fully advised in the premises, does find that the court erred in rendering judgment therein in favor of the plaintiff and against defendant, in this, to wit: That plaintiff was permitted to amend his petition, without notice to the defendant on the 5th day of January, A. D. 1906, and to take judgment thereon by default, and without notice to the said defendant on the same day; that the rights of said defendant were materially prejudiced thereby, and that he is entitled, by the reasons stated, to a new trial. It is therefore ordered, adjudged, and considered that judgment heretofore entered in said cause be set aside, and a new trial granted, as prayed for in said defendant’s motion.”</p> <p>Said cause was thereupon set for trial at the regular March term, and was, from time to time, continued by agreement of counsel, for both plaintiff and defendant, until the 1st day of May, 1906, at which time said cause came on for hearing, and thereupon the plaintiff filed the following motion:</p> <p>“Now comes the plaintiff in the above-styled cause, and appearing for the purpose of this motion only, and moves the court to set aside the order granting a new trial in the said above-entitled cause, for the reason that the court’s action in granting said order upon the motion of the defendant was without warrant of law, and contrary to the statute; and further that the said motion was not filed within the statutory time of three days; and further that none of the statutory grounds for a new trial are set forth -in defendant’s motion;-and further that it is not corroborated, by the affidavits of any witnesses, as to- the facts upon which the motion for a new trial was petitioned and granted; further that said motion does not set up any showing of diligence upon the part of the defendant, or that he has complied or attempted to comply with the requirements of law, and for the further reason that when the case was originally set for hearing the defendant defaulted, neither appearing in person nor by attorney, and that the statements made therefor are not under oath, and that there is no showing that the defendant or his witnesses could not have been present, or that he could not have been represented by another counsel; further that no due and proper notice was served on the plaintiff within the time prescribed by law, giving him an opportunity to argue or reply to said motion; further that all of the facts set up in said motion were fully known to defendant at the time of the former trial; and that he rested upon his rights and wholly defaulted, for which default the plaintiff cannot be made to suffer; and further that, if irregularities occurred, as complained of in the motion of defendant, when he appeared for the purpose of said motion, they were in the court, and under the statute he should have taken advantage of such irregularities, and filed his motion within the statutory time.”</p> <p>On said date said motion came on for bearing, and was sustained by the court, to which ruling the defendant then and there excepted and prayed an appeal to the Supreme Court of the territory of Oklahoma, and said cause is now properly before this court for review.</p>

<p>1. APPEAL AND ERROR — Review—Findings of Referee — Evidence —Presumption of Sufficiency. Where the findings of a referee are, in the main, predicated upon the issues joined by the pleadings, it will be presumed, on review in this court, where the evidence has not been preserved by a bill of exceptions for consideration here, that there was sufficient testimony introduced on the trial to warrant the findings,</p> <p>2. JUDGMENT — Res Judicata. A judgment rendered upon a demurrer to a petition or complaint between the same parties and on the same facts pleaded in a subsequent action is final and conclusive until reversed on appeal, and is a bar to any subsequent action based thereon.</p> <p>(Syllabus by the Court.)</p>

Error from District Qourt, Loga/n Gountyj before John II. Bur-ford, Judge. Action by W. P. Eager and others against S. Y. Seeds and another, contractors, -and Julias’ Ward and another, sureties.

<p> Error from District Court, Comanche Countyj before F. E. Gil-lettef Judge. </p> <p>Action by the Wm. J. Lemp Brewing Company against C. A. Secor and others. Judgment for defendants, and.plaintiff brings error.</p> <p>On the 25th day of May, A. D. 1904, plaintiff in error, as plaintiff, commenced this action against the defendants in error, C. A. Secor, Hub Crawford, R. B. Stevens, J. E. Dyche, Elliott F. Hook, as trustee in bankruptcy for M. S. Simpson, bankrupt, J. W. Bozeman, J. A. Pratt, S. L. Cheek, G. D. Ledgerwood, C. E. Bear, Charles Yahn, W. M. Bruce; George S. Bailey, R. R. Pritchard, and J. P. Boetner, as defendants, in the district court of Comanche county, territory of Oklahoma, alleging that on the 4th day of November, 1903, said defendants made, executed, and delivered to said plaintiff their certain obligation and contract in writing, in words and figures as follows:</p> <p>“Know all men by these presents, that I, C. A. Secor, of Law-ton, Comanche county, Oklahoma Territory, as principal, and Hub Crawford, R. B. Stevens, J. E. Dyche, M. S. Simpson, J. W. Bozeman, J. A. Pratt, S. L. Cheek, G. D. Ledgerwood, C. E. Bear, Chas. Yahn, S. M. Bruce, G. S. Bailejr, of Snyder, R. R. Pritchard, of Snyder, J. P. Boetner, Lawton, as sureties, are held and firmly bound to Wm. J. Lemp Brewing Co., of St. Louis, Mo., in the sum of five thousand dollars ($5,000) lawful money of the United States, to be paid to the said Wm. J. Lemp Brewing Company, its successors or assigns, for which pajment well and truly to be made, we bind ourselves, our heirs, executors and administrators, jointly- and severally by these presents. Sealed with our seals and dated this the 4th day of November, 1903. The conditions and consideration of the above obligation is such that, whereas, the said C. A. Secor is now justly indebted to the said Wm. J. Lemp Brewing Company in the sum of five thousand dollars ($5,000) after allowing all demands, counterclaims, and offsets, and whereas, the said C. A. Secor is'desirous of an extension of the time of payment of the said indebtedness in installments as follows: Jan. 1, 1904, $200; Eeb. 1, 1904, $200; March 1, 1904, $200; April 1, 1904, $300; May 1, 1904, $400; June 1, 1904, $400; July 1, 1904, $600; Aug. 1, 1904, $600; Sept. 1, 1904, $600; Oct. 1, 1904, $500; November 1, 1904, $500; Dec. 1, 1904, $500; to be payable at the office of said Wm. J. Lemp Brewing" Co., St. Louis, Mo. Now, it is therefore for value received and in consideration of such an extension of time being granted by the said.Wm. J. Lemp Brewing Company to the said C. A. Secor for the payment of the several sums of money at the different times heretofore mentioned, we and each of us do hereby undertake and obligate ourselves to make and secure the payment and performance of this obligation in accordance with the terms and conditions thereof as stated. Now, if the said C.s A. Secor shall well and truly pay or cause to be paid to the said Wm. J. Lemp Brewing Company the said several sums of money when due as aforesaid, then this obligation is to be null and void, otherwise to remain in full force and effect, but if default is made in the payment of any of said installments at the maturity thereof the said Wm. J. Lemp Brewing Company shall have the right to declare all the other remaining installments due and payable at once by an indorsement in writing on this obligation of words to that effect; and demand of payment upon said C. A. Secor shall be sufficient notice to the sureties of the presentment or nonpayment of any or all of said installments.' If payment is not made of said installments or any part of same when due and same is placed in the hands of an attorney for collection or suit is instituted thereon, we agree to pay ten per cent, additional as attorney’s fees.”</p> <p>Plaintiff further alleged that the defendants, and each of them, obligated" and bound themselves, the said C. A. Secor as principal, and the other defendants as sureties, to pay the said plaintiff the sum of $5,000, on the several days and dates, the several amounts mentioned, as stated in said obligation, and, in addition thereto, 10 per cent, attorney’s fees should default be made in the payment of any of said amounts, when due, if same should be placed in the hands of an attorney for collection, or suit instituted thereon. Plaintiff further alleged that, by the terms of said obligation, upon default being made in the payment of any of said installments at maturity thereof, it had a .right to declare all the other installments due and' payable at once, by indorsing in writing, on the obligation, words to that effect. Plaintiff further alleged that, after the execution and deliver of said obligation, the said defendant C. A. Secor paid to the plaintiff the several amounts on the several dates as thereon indorsed, to wit, November 13, 1903, $104.47; December 30> 1903, $95.53; March 7, 1904, $200; March 9, 1904, $185.81; and April 25, 1904, $149.18. Further, that said defendants, though often requested since due, have not paid the balance due of $165.01 that became due on April 1, 1904, nor said installment of $400, due on May 1, 1904, and that, in keeping with and in accordance with the terms of said obligation, and by reason «of • the nonpayment of said sums, the plaintiff made the following-indorsement in writing on said obligation, to wit: .“By reason of the nonpayment, according to. the terms of this contract and obligation, of the balance due on sai'd installment of $300, falling-due on May 1, 1904, the Wni. J. Lemp Brewing Co., of St. Louis, Mo., mentioned herein, do hereby declare each and all of the remaining said installments due and payable at once. This May 19, 1904-, [Signed] Wm. J. Lemp Brewing Co., by A. Wahlstab, Agent” — when and whereby all of the said amounts, in said obligation and contract, not so paid became due and owing to the plaintiff, to wit, the sum of $4,265.01, together with interest thereon at the rate of 7 per cent, per annum, from May 18, 1904, until paid, and due notice thereof has been given to the defendants of the demand and nonpayment of said obligation, and demand had been made for the payment of the balance, the said sum of $4,265.01; and upon their failure to pay same, or any part thereof, said obligation and claim had been placed in the hands of an attorney for collection and for the institution of suit thereon, and by reason thereof the defendants were justly indebted to the plaintiff in the sum of $4,265.01, with interest thereon at the rate of 7 per cent, per- annum, from May 19, 1904, and an additional 10 per cent, thereon as attorney’.s fees, for which plaintiff now asks judgment against the defendants.</p> <p>The defendants each answered substantially as follows: Admitting the execution of said instrument, but stating that he signed the same with the distinct and special understanding and agreement with the plaintiff’s agent, A. Wahlstab, and the principal, C. A. Secor, that there were to be upon said obligation the names of at least 25 good and solvent sureties, residents of Oklahoma Territory, who should be co-sureties with said surety before said obligation should be delivered or binding upon said defendants, and among said sureties, it was agreed with plaintiff’s agent and the said principal, was to be one Harris anti also one Ed Block, the said Harris and said Block being men of considerable means, but that, in violation of said agreement, the plaintiff, through its duly authorized agent, A. Wahlstab, conspired with the said Secor to injure said surety and to try to hold him liable against his consent, and wrongfully and fraudulently induced said Secor to deliver over to plaintiff’s agent the said obligation without having obtained the signatures of the said 25 solvent sureties, including the said Block and Harris, there being only 14 sureties on said instrument when so wrongfully and fraudulently delivered • to plaintiff’s agent by said Secor; the plaintiff participating in said wrong and fraud.</p> <p>'The obligation was introduced in evidence, and proof of demand made for the payment of the debt, and further proof of the indorsement made by plaintiff declaring all the indebtedness due. Thereupon the defendants introduced evidence tending to prove that one A. Wahlstab, the duly authorized agent of plaintiff, represented and agreed with each of said sureties, in the presence of said Secoi*, the principal in said obligation, as an inducement to secure their signatures to said obligation, that, unless 25 good and solvent sureties, including the said Harris and said Block, should be obtained upon said instrument, the same should not be considered as a completed contract, neither have any binding effect upon any of said sureties, nor was the same to be delivered by Secor to plaintiff.</p> <p>On November 10, 1903, plaintiff, from its home office in St. Louis, Mo., addressed a letter to each of said defendants, the body of which is as follows:</p> <p>“Messrs. Sims & Wolverton: Our Lawton, O. T., attorneys have just transmitted to us the new obligation of Mr. C. A. Secor, for the sum of $5,000 owing us, dated the 4th day of November, 1903, wherein W. M. Bruce, Hub Crawford, R. B. Stevens, J. B. Dyche, M. S. Simpson, J. W. Bozeman, J. A. Pratt, S. L. Cheek, 0. D. Ledgerwood, J. P. Boetner, C. E. Bear, Chas. Yahn, .of Lawton, G. S. Bailey and R. R. Pritchard, of Snyder, O. T., are sureties. The document was mailed to us by Messrs. S. & W. for examination and approval. We have looked over the obligation, and approve of the same, of which please take notice. Yours truly [Signed] Wm. J. Lemp Brewing Co., by Henry Vahlkemp, Sec’y.”</p> <p>It developed in the testimony that J. E. Dyche, M. S. Simpson, and another were on a prior obligation of said Secor to the plaintiff, but it nowhere appears' that said obligation was canceled and surrendered over to said Dyche and his co-obligors thereon; but, so far as appears from this record, same was still retained by plaintiff. The plaintiff’s agent denied that he had made the agreement with each of the sureties,- as contended on behalf of the defendants. It does not appear from the testimony that any of the defendants ever answered dr replied to the letter or notice sent to" each of them by the plaintiff on the 10th day of November, 1903. The issues were submitted to a jury under proper instructions. The plaintiff contends that, as a matter of law, the court should have directed a verdict in its behalf.</p> <p>This cause is now properly before this court, being transferred from the Supreme Court of the territory of Oklahoma, by virtue of the provisions of Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 267) for review.</p>

<p> Error from District Court, Canadian County; Jno. H. Burford, Judge. </p> <p>Action by I. M. Holcomb ahd others against Mary E. Cartwright., Judgment for plaintiffs, and defendant brings error.</p>

<p>1. BASTARDS — Legitimation — Acknowledgement—Reception into Family. Under the terms of section 36, art. 2, a. 59 (section 3795) Wilson’s Rev. & Ann. St. 1903, the father of an illegitimate minor child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he be married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts or legitimates such child, and it acquires the legal status of a legitimate child from birth.</p> <p>2. SAME — Consent of Mother Unnecessary. Such father, desiring to so legitimate or adopt such child, may do so without the consent and against the will of the mother.</p> <p>3. SAME — Effect of Legitimation — Custody—Rights of Father. When such legitimation or adoption takes place, all the reciprocal responsibilities and duties between a father and a legitimate child obtain between him and such adopted child, and he is charged with its support and education, and is entitled to its custody, services, and earnings.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Canadian County; before C. F. Irwin, Judge. Action by J. W. Cordray against H. W. Morgan. Judgment for defendant, and plaintiff brings error. This was a suit brought in the district court of Canadian county by John W. Cordray against H. W. Morgan for the purpose of quieting title in plaintiff to the northwest quarter of section 15, township 11, range 8 W., a tract of land situated in that county.

Appeal from the United States Court for the Western District of the Indian Territory, Sitting at Sapulpaj before Justice Louis Sulzbacher. Action in replevin by Capital T'ownsite Company against. L. Iv. Brown and R. E. Brown. Judgment for plaintiff. Defendants appeal.

<p>1. CORPORATIONS — Foreign Corporation — Process — Service by ¡Publication — Affidavit—Sufficiency. Where the affidavit for service on a foreign corporation by publication (section 4276 Wilson’s Rev. & Ann. St. 1903) does not allege that such corporation had failed to comply with the requirements to do business in the territory of Oklahoma, including the designation of an agent upon whom service may be had, a judgment rendered thereon without further notice upon or any appearance by such corporation is void.</p> <p>2. SAME. Where publication service is relied on solely, and it-is alleged in the affidavit therefor that, with the exercise of due diligence, the plaintiff is- unable to procure service of summons on the defendant within the territory (state), the facts necessary to show that due diligence was used to obtain personal service should -be stated, and, where judgment is rendered against a foreign corporation without such requirements being complied with, it is void.</p> <p>3. JUDGMENT — Vacation of Void Judgment. A void judgment may may be vacated and set aside at any time on motion of the defendant.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Nolle County; B. T. Hamer, Judge. Action to quiet title by K. P. Nicholson and others ‘against the Midland Savings & Loan Company of Denver, Colo. Judgment for defendant, and plaintiffs bring error. On the 19th day of November, 1903, the plaintiffs in error as plaintiffs instituted an- action in the district court of Noble county, territory of Oklahoma, to quiet title to certain real estate located in the city of Perry.

Error from Western ¡District of the Indian Territory; Louis Suh-bacher, Judge. Action, in replevin by John and Ella Flowers against Dunlap & Taylor. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Custer County; M. C. Garber, Judge. </p> <p>Action on insurance policy by W. P. McCorkle against .the Oklahoma Farmers’ Mutual Indemnity Association. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CORPORATIONS — Foreign Corporations — Actions—Service of Process. Section 1227, Wilson’s Rev. & Ann. St. 1903, providing that any action to which a foreign corporation may be the party defendant may be brought in the county where its designated- agent resides or in any county in which the business, or anv part of it out of which the action arose, is transacted, service upon such agent shall be taken and held as due service upon such corporation, not being in conflict with Act Cong. May 2, 1890, c. 182, sec. 10, 26 Stat. 81 (Organic Act), requiring that all actions shall be instituted in the -county in which the defendants or either of them reside or may be found, is valid.</p> <p>2. SAME — Venue—Action Concerning Realty. An action affecting an interest in real estate in this state where the real estate is situated in one county and the defendant is a foreign corporation having a designated agent residing in another county may be instituted in the county where the land' is situated, and service had upon such agent in another county.</p> <p>(Syllabus by the Court.)</p>

Error from Probate Court, Oklahoma County; W. P. Harper,Judge. Action by the Miller & Yidor Lumber Company against the Standard Lumber Company. Judgment for plaintiff, and defendant brings error. This action was instituted in the probate court oí Oklahoma county, Oída.

Gill, Judge. Action by the G. A. Martin Lumber Company against J. W. Forsythe. Judgment for defendant, and plaintiff appeals.

<p> Error from the United States Court for the Western District of the Indian Territory; W. R. Laivrence, Judge. </p> <p>Action by Marcbie Tiger against the Western Investment Company and another. Judgment for plaintiff, and defendants bring error.</p>

Jlrror from District Court, Oklahoma County; B. F. Burnell Judge. Action in replevin by the Street & Harper Furniture & Carpet Company against G. W. Garrison. Judgment for plaintiffs and defendant brings error. Pending appeal plaintiff in error died', and action was revived in name of Kathleen Garrison and Harvey D. Garrison.

jError from the United States Court for the Southern District of Indian Territory, Sitting at Ardmore; Hosea Townsend, Judge. Action by Myra Burgess, joined by lier husband, for personal injuries, against the Choctaw, Oklahoma & Gulf Eailroad Company. Judgment for plaintiffs, and defendant brings error.

<p> Error from the United States Gourt for the Oentral District of Indian Territory, Sitting at McAlester; Wm. H. II. Glayton, Judge. </p> <p>'Action by Edwin D. Sittel and others against the Choctaw, Oklahoma & Gulf Railroad Company. Judgment for plaintiffs., and defendant brings error. On petition for removal to the federal court.</p> <p>This cause came to this court from the United States Court of Appeals for Indian Territory by virtue of' the terms of the enabling act, being one of the cases pending on the docket of said court not finally disposed of at the time of the admission of the state into the Union. The petition or complaint of the defendants in error, plaintiffs in the court below, alleges that the plaintiff in error, defendant in the court below, is a corporation existing under and by virtue of an act of the Congress of the United States. It is further alleged in said petition or complaint that Edwin D. Sittel, one of the plaintiffs therein, is a white man, and has resided in the Choctaw Nation for the past 25 years, and that his coplaintiff, Fritz Sittel, his son, is a member of the Choctaw Tribe of Indians by marriage, and has resided therein for the past 23 years. On the 9th day of January, A. D. 1908, under the directions of this court, the docket was set and assignment of cases made for the first term thereof, this case being set for hearing on the 20th day of January, A. D. 1908, and proper notice of such setting was given to the attorneys of record for both plaintiff and defendants in error. On the 20th day of January, A. D. 1908, this case in due course was reached on the calendar for trial, no attorney for the plaintiff in error appearing at said hearing; but the attorney of record, S. A. Wilkinson, appeared for the defendants in error, and said cause was duly submitted for a final determination and judgment of this court.</p> <p>Thereafter on tire 24th day of January, A. D, 1908, plaintiff in error filed its petition for removal, alleging that by virtue of the terms of the enabling act, approved June 16, A. 'D. 1906, as amended on the 4th day of March, A. D. 1907,’ said cause should be removed to the United States Circuit Court for the Eastern District of the state of Oklahoma for final determination, averring that at the time of the institution of said suit in the lower court the defendant therein, the plaintiff in error in this court, was, and ever since-has been, and still is, a corporation organized under and by virtue of a certain act of the Congress of the United States, to wit, an act entitled “An Act to authorize purchasers of the property and franchises of the Choctaw Coal & Eailway Company to organize a corporation and to confer upon the same all the powers, privileges and franchises vested in that company,” approved August 24, A. D. 1894 (Act Aug. 24, 1894, e. 330, 28 Stat. 502); that its principal place of business is, and at all times therein mentioned has been, in the city of Philadelphia ; and that it has at no time been a resident of the Indian Territory or the state of Oklahoma. Petitioner further avers: That this is a civil cause, pending at the time of the organization of the State of Oklahoma as aforesaid in the United States Court of Appeals in the Indian Territory, and arising under the Constitution, laws, or treaties of the United States, within the meaning of the second section of the act of Congress of the United States of March 3, A. D. 1875 (18 Stat. 470, c. 137 [U. S. Comp. St,-1901, p. 509]), as amended March 3, 1887, (24 Stat. 554, c. 373), and August 13, 1888 (25 Stat. 434, c. 866 [U. S-. Comp. St. 1901, p. 582]), and section 16 of the Enabling Act (Act June 16, 1906, c. 3335, 34 Stat. 276), as amended (Act March 4, 1907, c. 2911, § 1, 34 Stat. 1286). At the same time plaintiff in error tendered a good and sufficient bond, as provided by the statute in such cases. That thereafter, on the 29th day of January, A. D. 1908, the. plaintiff in error filed an amendment to said petition, wherein it is averred that this is a controversy between citizens of -different states, and that more than $2,000, exclusive of interest and costs, is involved therein. All of the foregoing facts appear as a matter of record. On the same date, to wit, the 24th day of January, A. D. 1908, the plaintiff in error, through its attorney, Thos. E. Beman, made application in open court to have the name of C. O. Blake substituted for the name of C. B. Stuart as attorney of record in said cause, which was granted.</p> <p>Thereafter, on the 2d day of March, A. D. 1908, said Thos. R. Beman filed his affidavit in said cause, deposing that C. 0. Blake, Esq., of El Reno, Okla., was the attorney at that time of the above-named Choctaw, Oklahoma & Gulf Railroad Company, and that he was assistant attorney for said company, ánd that as such assistant attorney he was given charge of this case, and filed in this court on the 24th day of January, A. D. 1908, and prior to the opening of its session, a petition and bond for the removal of said cause to the United States Circuit Court for the Eastern District of the state of Oklahoma, and that thereafter, in open court, during the argument-of the motion for removal of another cause, he first learned that this cause had theretofore, on the 20th day of January, A. D. 1908, been submitted upon argument made by counsel for the appellee for final determination, and that actual notice of such assignment had been given to counsel or attorney of record for plaintiff in error in said( cause, to wit, C. B. Stuart, Esq., of McAlester, Ind. T., now the state of Oklahoma. Whereupon he moved said court in behalf of the plaintiff in error that the said C. 0. Blake be substituted as attorney of record in said cause, in lieu of said C. B. Stuart, as well as in all other cases pending in said court wherein the said C. B. Stuart appeared as attorney of record for said plaintiff in error. It is admitted that the said C. B. Stuart, as attorney of record, was duly notified of the assigning and setting of said cause for hearing, but that neither the said C. • 0. Blake nor Thos. R. Beman had any actual notice thereof. It is further admitted that under the rules of this court when a cause is briefed on the part of the plaintiff in error — and in this case it had' been so briefed— and the same' being reached regularly on the docket for hearing, though the plaintiff in error failed to make appearance in person or by counsel, the same should be submitted for final decision and judgment of this court.</p>

Application by the state, on the relation of Edward E. Rear-don, for writ of mandamus to Henry M. Scales, mayor of the city of Oklahoma City, and others. Held: by the same election officers, an election at which should be voted for the various elective officers provided for in said charter, to wit, a board of council, consisting of five members, a board of education, consisting of five members, and a mayor of said city.

Error from the United States Court for the Central District oj the Indian Territory; Wm. H. H. Clayton, Judge. Action by Edwin D. Sittel and others against Allen Wright, the Choctaw, Oklahoma & Gulf Railroad Company, and another for an accounting. Judgment for complainants as against defendant railroad company and dismissing the case as to the other defendants, and both parties bring error.

Suit by tlie city of Pond Creek and others against 0. N. Haskell, Governor, and others, to restrain the Governor from canvassing the returns and from declaring the result of an election to determine the removal of the county seat of Grant county from Pond Creek to Medford, and restrain the county officials during the pendency of the suit from removing their offices, and that the temporary injunction be made perpetual. On demurrer to the bill.

Application by tbe state, on the relation of C. N. Haskell, Governor, for a writ of prohibition to A. H. ITnston, Judge, and Charles West, Attorney General.

Original proceeding by tbe state, on relation of Rutherford Brett, county attorney of Washita county, against H. A. Ken-ner and others, to restrain defendants, as county commissioners, from issuing certain warrants, and making a tax levy against the property of the county to redeem such warrants.

Error from Probate Court, Cleveland County; N. E. Sharp, Judge. Action by the Oklahoma City National Bank and others against the State Life Insurance Company of Indianapolis, Ind. Judgment by default against the insurance company, and it brings error.

Error from District Court, Comanche County; F. E. Gillette, Judge. Action by the City National Bank of Lawton against O. Gr. Sparks. Mary E. L. Sparks intervened. Judgment for plaintiff, and Mary E. L. Sparks brings error.

<p>1. PRINCIPAL AND AGENT — Authority—Question for Jury. The apparent authority of an agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury.</p> <p>2. BANKS AND BANKING — National Banks — Authority of Agents. A national bank has power under the banking laws of the United States, to intrust to its agents such authority as is required to meet all the legitimate demands of its authorized 'business and to conduct its affairs within the scope of its charter safely and prudently.</p> <p>3. PRINCIPAL AND AGENT — Authority of Agent — General Scope. Authority, whether general or special, conferred upon an agent, is to be construed as including only the usual means 'appropriate to the end. Even if a general discretion is vested in an agent, it is not deemed to be unlimited. It must be exercised in a reasonable manner, and cannot be 'resorted to to justify acts Which the principal could not be presumed to intend.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Gourt, Cleveland County; C. F. Irwin, Judge. </p> <p>Action by P. M. Sullivan against Albert E. Williamson and others. . Judgment for defendants, and plaintiff brings error.</p>

Error from Probate Court, Lincoln County; Fred A. Wagoner, Judge. Action by the Maer Manufacturing Company against W. E. Cox. Judgment for defendant, and plaintiff brings error.. This is an action on an account, originally brought in the justice court of Cimarron township, Lincoln county. The amount of the account for which judgment was sought was $15. In the trial of the case in the justice court a jury was summoned, but was never sworn to try the case.

Error from the United States Court for the Western District of the Indian T'emtory, at Muskogee; William B. Lawrence, Judge. Action by Harry L. Stevens against Martha Hawkins. Judgment for plaintiff. Defendant brings error.

Error from the United States Court for the Central District of the Indian Territory, at Poteau; W. II. E. Clayton, Juftge. Action by J. S'. Stigler against W. A. Pugh. Judgment for plaintiff. Defendant brings error.

Error from District Court, Pottawatomie County; B. F. Burwcll, Judge. Action by Marcus Daugherty against Mary A. Meek for the contract price for the construction of a wall. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Presumptions — Incomplete Record. In the absence of a complete record on appeal, the presumption is that the action of the trial court was correct.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Gourt for the Southern District of the Indmn Territory, at Ada; Joseph T. Dickerson, Judge. Action by Tom Hope against Frances BonrlancL Judgment for defendant, and plaintiff brought error to the United States Court of Appeals in the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma.

Error from the United, States Court for the Central {District of the Indian Territory; W. H. H. Glayton, Trial Judge. Action by J. M. Cox against the Arkansas Insurance Company. Judgment for plaintiff, and defendant appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred, under the Enabling Act, to the Supreme Court 'of the state of Oklahoma.

B. Lawrence, Judge. Suit by Edward Porter and others against Eck E. Brook. Judgment for defendant, and plaintiffs appeal. This is a suit in equity for partition, brought by appellants against appellee in the United States Court of the Indian Territory at Muskogee.

<p>APPEAL AND ERROR — Time of Taking Appeal — Ind. Ter. Procedure, Under Act. Cong. March 3, 1905, c. 1479, sec. 12, 33 Stat. 1081 (U. S. Comp. St. Supp. 1907, p. 208), providing that appeals and writs of error shall be taken from the United States Courts in the Indian Territory to the United States Court of Appeals of said territory in the same manner that cases are taken by appeal and writ of error from the Circuit Courts of- the United States to the Circuit Court of Appeals of the Eighth Circuit, a writ of error must be sued out within six months after the entry of the judgment sought to be reviewed.</p> <p>(Syllabus by the Court.)</p>

R. Laivrence, Judge. Action by Mineóla Walker against Silas Roberson. Judgment for defendant, and plaintiff appeals. This suit was brought in the United States Court of the Indian Territory, at Muskogee, by appellant, Mineóla Walker, against appellee, Silas Roberson. Plaintiff by her bill asks for a declaration of trust. Both plaintiff and defendant are minor Creek citizens, and both appear in this action by their fathers and natural guardians.

<p>Action by the incorporated town of Lehigh and others against' J. C. Thomas and others.</p>