Volume 23 — Oklahoma Reports

<p>1. CONSTITUTIONAL LAW — Amendment of Constitution — Submission to Popular Vote — Uniting Two Distinct Propositions in One. Where a proposition, submitted to the people to amend the Constitution, in fact contains two separate and distinct propositions — one 'for the amendment of the Constitution, and the other for thie approval or reiection of an act. or a certain portion thereof, or the repeal of the same — the two propositions cannot be united in the submission so as to have one expression of the voter answer both propositions, as voters thereby might be induced to vote for both propositions who would not have done so if the questions had been submitted singly.</p> <p>2. SAME — State Agency — Enforcing Act. While a proposition to amend the prohibition article of the Constitution relating to the sitarte agency, so as 'to extend it to towns within this state of 1,000 population or more, or one Such agency at any other place within this state where the public necessity exists therefor, to be ■determined bv the superintendent with the approval of the Governor, and a proposition for the approval or rejection or repeal of article 1 of the enforcing act (Laws 1907-08, p. 594, c. 69), may be submitted at the same election, the two cannot be united in one proposition, so as to have one expression of the voter answer 'both propositions.</p> <p>(Syllabus by thfe Cou-rt.)</p>

<p>APPEAL AND ERROR — Commencement of Proceedings — Dismissal. A petition in error was filed and summons in error issued two days before the expiration of one year after the rendition of the judgment appealed from. The service of the summons in error which was served after the expiration of said period of one year was guashed. An alias summons was not issued and served until after the expiration of 60 days a-Ster the issuance of the first summons. Held, that the proceeding was not commenced within one year from the date of the rendition of the judgment appealed from, as required by section 4748, Wilson’s Rev. & Ann. St. 1903.</p> <p>(Syllabus by the Court.)</p>

<p>1. TRIAL — Appeal and Error — Verdict—General and Special— Waiver of General Verdict — Estoppel to Assert Error. In all cases triable by a jury, t'he parties thereto are entitled to have a general verdict returned, and at the request of any party there- . to, in addition to the general verdict, to have the jury directed to find upon particular questions of fact, to be stated in writing by the party or parties requesting the same. la. When any party to an action triable by a jury permits the general vei-diet <to be dispensed with by order of 'the court, and the answers or findings upon the particular questions of fact to be returned into open court and recorded, without any objection and afterwards files a motion for judgment in bis favor thereon, he will not be permitted thus to induce the court to commit an irregularity, and, after speculating upon its result in seeking a judgment thereon in his favor, be heard on review here to com: plain because no general verdict was returned, but same will be treated as waived. ' . :</p> <p>2. TRIAL — Special Verdict — Judgment. When a jury return their answers to the particular questions submitted, and no motion for a new trial is filed for a re-examination of the facts or to set same' aside, the only question for the trial court is to determine whether or not it is proper to render judgment on the facts as found, as applied to the pleadings.</p> <p>2a. Where a party moves for judgment in his favor on a special verdict, no motion for a new trial oar to set aside such findings 'having been made, and excepts to the action of the court in rendering judgment on such findings, he thereby admits, so far as such action of the court is concerned, that the special findings state the facts fully and correctly.</p> <p>3. APPEAL AND ERROR — Presentation and 'Reservation of Error —Motion for New Trial — Necessity. A general verdict not having been returned, but answers to specific questions, both sides having filed and presented motions for judgment thereon, in the absence .of a timely objection with proper exceptions, and the assigning of such action as error in a motion for a new trial, the ■same will not be reviewed here</p> <p>4. TRIAL — Special Verdict — Signing by Foreman — Waiver. Wihen the special answers or findings are returned, the jurors each being polled ad seriatim answered that the same as read 'by the clerk were his. No objection was made by either party, or request, that such special findings or answers should be signed, and each party filed and presented a motion for judgment in his or their favor on such special findings. Held, that this was a waiver of the irregularity, in the foreman not signing the answers or findings as required by the statute.</p> <p>5. BILLS AND NOTES — Consideration—Effect of Partial Illegality. If the consideration of a note is partly illegal, the whole note is void; and, where- the note is given in settlement of pre-existing .debts, in addition to certain sums of money advanced to one of the makers at the time of signing sjme, and also for the agreed purpose of discontinuing a pending prosecution against one of the makers thereof for a crime, such note, being entire and indivisible, is void, and there can be no recovery thereon.</p> <p>6. CONTRACTS — illegality of Consideration Not Cured by Ratification. Where a part of the consideration for an agreement is for the discontinuance of a prosecution for a crime, the ratification of such agreement is opposed to public policy, and cannot be permitted.</p> <p>6a. Where a contract is void on the ground that it involves the commission or compounding of a crime, there ca.n be no confirmation or ratification of same without it being affected with the original taint. Auy subsequent ratification of same between the same parties is illegal.</p> <p>(Syllabus by the Court.)</p>

<p>1. NEW TRIAL — Motion—Time For. Application for a new triad, unless unavoidably prevented, except for the cause of newly discovered evidence, material far the party applying-, Which he could not with reasonable diligence have discovered and produced at the trial, shall be filed wiitliin three days after -the verdict or decision is rendered.</p> <p>2. APPEAL AND ERROR — Dismissal—Motion for New Trial Out of Time. When it appears from the record that such application was filed on the fourth day after the verdict or decision was rendered, and thereafter the court makes an order striking said motion from the files, and neither is there any exception reserved to such action nor any additional motion for a new trial filed, and subsequently the court enters an order reciting that the motion for a new trial is overruled and exceptions saved, and there are no -other questions presented by -the record that are properly reviewahle in this court -without first having been assigned in a motion for a new trial, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — “Brief” Defined — Requisites of Brief. A “brief” is a written presentation of t'he questions Involved in a •forensic controversy and of the matters of fact and of law which 'demanó investigation. The primary object is to convey information to the court, and this cannot be done without clearly stating the manner in which the controverted points arise, the facts which constitute the groundwork of the legal dispute, and the governing propositions of law.</p> <p>2. SAME — Necessity of Pointing Out Error. This court will not examine the record in search of prejudicial errors which are not ■clearly pointed out and insisted on in the brief of the complaining party, and it is not enough to assert in general terms that the ruling of the trial court is wrong, for on this the point will not be considered as having been made; but counsel should support the same with argument and citation of authority where possible.</p> <p>(Syllabus by the Court.)</p>

Error from District Coürí, Cleveland Countyj C. E. Irwin, Judge. Action by D. S. Wade against W. R. Cornish and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Logan County; J. II. Burford, Judge. </p> <p>Action by tbe Aetna Building & Loan Association against Dora Eandall and others. Judgment for plaintiff for part of tbe sum demanded, and it brings error.</p> <p>Necessary allegations and evidence in defense of usury: Gould v. Horner, 12 Barb. 601; Ease v. Bennett, 54 N. J. Eq. 97; Manning v. Tyler, HI N. Y. 568; Pillsbury v. McNally, 22 Ark. 409; Baker v. McGrath, 106 6a. 419; Bank v. Barton, 21 111. App. 404; B^oagni v. Pickett, 28 La. Ann. 606; Babcock v. Murray, 58 Minn. 385; McCready v. Phillips, 56 Neb. 446; Mc-Cauley v. Bid’g & Sav. Ass’n (Tenn.) 35 L. E. A. 244; Bevfj v. BakTcen, 36 Minn. 333; Mosely v. Smith, 21 Tex. 441; Powers v. Chaplain, 30 N. J. Eq. 17; Mattock v. Mallory, 19 Ala. 694; Mastuson v. Grubbs, 70 Ala. 406; Balfour v. Davis, 14 Or. 47; Cooper v. Nock, 27 111. 301; Bush v. Bush, 23 3£y. 53.</p>

<p> Error from, District Court, Lincoln County; J. H. Burford, Trial Judge. </p> <p>Action by H. M. Johnson against Shédrick Taylor and others. Judgment for plaintiff, and defendants Shedriek Taylor and Nancy Taylor bring error.</p> <p>This action was brought by the defendant in error H. M. Johnson to recover on a non-negotiable promissory note, and to foreclose a mortgage given to secure the same. He alleges in his petition that the note and mortgage were executed by the plaintiffs in error, and that the note is past due and unpaid. Plaintiffs in error in their answer make a general denial, and specifically deny that they executed and delivered the note to the payee therein, and further allege that if said note and mortgage were obtained from them they were obtained by fraud, and without their knowledge or consent. Upon a verdict in favor of defendant in error judgment ivas rendered by the trial court, from which plaintiff in error appealed.</p>

<p>APPEAL AND ERROR — Insufficient Record — Review of Evidence. Where the record upon appeal does not show that it contains all the evidence presented at the trial', it presents no error that can be reviewed by this court, when such assignment requires an examination of the evidence.</p> <p>('Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Presentation and Reservation of Grounds of Review — Motion to Suppress Depositions. There is no reversible error in the failure of a trial court to pass on a motion to suppress certain depositions, where the record does not affirmatively show that the motion was called to the attention of the court or that the depositions were introduced in evidence or used on the trial.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Garfield County; M. C. Garber, Judge. J. P. Renshaw presented a claim before the Board of Garfield County Commissioners, and from an order disallowing part of the same appealed to the district court, where judgment was rendered in his favor, and the Board of County Commissioners brings error.

Error from United States Court for Northern District of the Indian Territory; Luman F. Parker, Jr., Judge Action by Bandolph Ballard against the United States Fidelity & Guaranty Company and others. Judgment for plaintiff, and the guaranty company brought error to the United States Court of Appeals in the Indian Territory, whence the cause was transferred, under the Enabling Act, to the Supreme Court of the state of Oklahoma.

Error from District Court, Kingfisher County; C. F. Inuin, Judge. Action, by William H. Goldsborough and Louisa Caldwell against Robert Hewitt. Judgment for defendant, and plaintiff's bring error. On March 23, 1904, William H. Goldsborough and Louisa Caldwell, plaintiffs in error, plaintiffs below, brought suit against Robert Hewitt, defendant in error, defendant below, in the district court of-Kingfisher count}', Okla.

Appeal from the United States Court for the Western District of the Indian Territory, al Wagoner; Louis Sulzbacher, Judge. Eeplevin by the Western Investment Company against Harvey A. Mayberry. Judgment for defendant, and plaintiff brings error.

Error from District Court, Garfield County; M. C. Garber, Judge. Action by the Mountain Park Stock Farm Company against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.

<p> On Certificate from the Criminal Court of Appeals. </p> <p>William Schwedes was convicted of conveying intoxicating liquor from one place in the state to another, such liquor not having been lawfully purchased as authorized by the Constitution of the state, and he brought error to the Criminal Court of Appeals which court certifies the question to the Supreme Court as involving the construction of Const., art. 1, § 9 (Bunn’s Ed. § 499), prohibiting the shipment or conveyance of intoxicating liquor from one place in a state to another, except the conveyance of a lawful purchase.</p> <p>This cause was certified from the Criminal Court of Appeals to this court, as involving the construction of that part of the Constitution of the state of Oklahoma which prohibits the shipment or conveyance of intoxicating liquors from one place in the state to another place therein, except the conveyance of a lawful purchase. Section 499 of Bunn’s Edition of the Constitution, (section 9, art. 1, of the Constitution).</p> <p>The plaintiff in error was convicted on the 30th day of December, 1907, in the county court of Grant county, in a prosecution by information which charged that he, the defendant in the •trial court, did on the 20th day of December, 1907, in Grant county, unlawfully and wilfully carry and convey certain intoxi-' eating liquors, to wit, 12 quarts of whisky, from one place in said state, to wit, the depot of the Chicago, Rock Island & Pacific Railway Company, in Pond Creek, in Grant county, to another place in said state, to wit, the livery barn of said Schwedes in Pond Creek, said liquors not having been lawfully purchased as authorized by the Constitution of the state of Oklahoma.</p> <p>The defendant. in said court asked for several instructions, which were refused by the court,,in words and figures, as follows, to wit:</p> <p>“No. 7. If you find the liquor charged to have been carried by the defendant had just been imported by a common carrier, from some person in another state of this Union, and that the same was imported for the personal use of the defendant, then the defendant had a right to receive and ear^ and convey the same to his own house or apartment, in the original package, for his personal use, as long as there was no intent on his part to sell or dispose of the same contrary to law or to put the same to an unlawful \ise.” “Refused: Exception to defendant. H. H. Rogers, Count31' Judge.”</p> <p>“No. 8. If you find that the liquor which was charged to have been carried by the defendant was in the original package and the property of the defendant, and -had been imported from another state or foreign country by a common carrier for his own personal use and consumption, and not for the purpose of sale, barter, or exchange, then you should find the defendant not guilty.” “Refused: Exception to' defendant. H. H. Rogers, County Judge.”</p> <p>“No. 10. You are instructed that if you find that the defendant did carry the intoxicating liquors charged in the information, and that the same was imported from a foreign state or countary, for his own use and consumption and not for the purposes of barter, sale or exchange, then the defendant had a right to receive the same and carry it to his own apartments, in the original package that it was shipped in, so long as he did not convert the same for any other use.” “Refused: Exception to defendant. H. H. Rogers, County Judge.”</p> <p>These instructions were based upon the testimony of the defendant himself, which is substantially to the effect that he had gotten a box of liquor at the depot at Pond Creek, and had started to take it to his home, and whilst he was on his way thereto he was arrested by the sheriff of Grant county and taken to his livery barn, where the box was opened and the contents seized by the officer; that the liquor he was carrying was shipped to him by Stulz Bros., liquor dealers, at Kansas 0%, Mo.; that said liquor .was shipped to him by said Stulz Bros, in the pursuance of an agreement had with a salesman in the employ of said Stulz Bros., who stated to said defendant that he would send 'him something to drink Christmas; that he got the liquor for himself and family, for their own use, for a “Christmas drink,” as saicUby the defendant.</p> <p>The requested instructions on the part nf the defendant in the trial court presented the question of the right of a person to purchase in good faith for his own use, intoxicating, liquors in a foreign or another state, and have same sent to him by express or other means of transportation, and whether the consignee might go to the express office or depot and receive the liquor so purchased and carry same to his residence for his use.</p> <p>The refusal of the trial court to give the instructions requested is assigned as error in the Criminal Court of Appeals, and it was considered by that court that the construction of tire Constitution is brought into question, and this proceeding is, by virtue of the provisions of section 2, art. 1, c. 28, p. 291, of the Session Laws of Oklahoma, 1907-08, certified to this court.</p> <p>No copies of briefs.reached the reporter.</p>

Action by the State, the Apache Milling Company, and the Miller Grain Company against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error. The Constitution of Oklahoma, art. 9, § 33, provides the manner and terms for securing the side track demanded by complainants, the track being sought for a private and not a public use.

Error from District Court, Washita County. Action by the State, on relation of R. Brett, County Attorney of Washita County, against A. 0. Held: and no vote of the people of said county taken on the re-location of the county seat of said county, and that said contract provides for the expenditure of the public moneys of said county for the construction of said courthouse prior to the 1st day of April, A. D. 1909; that if said board of county commissioners and said county…

Error from, District Court, Pontotoc County; A. T. West, Fried Judge. Action by C. C. Cummings and others against the London & Lancashire Fire Insurance Company. Judgment for plaintiffs, and defendant brings error. This( action was brought in the trial court by defendants in error against plaintiff in error to recover upon a fire insurance policy. Judgment was rendered in favor of defendants in error on the 4th day of May, .1908.

<p>AP1PEAL AND ERROR — Record—IReservatron of Questions. Motk._s presented in the trial court, the ruling® thereon, and exceptions thereto are not properly a pant of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same in the bill of exceptions or case-made.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Logan County; C. F. Irwin, Judge. Action in the probate court by William Barringer against the '.Bes Line Construction Company. From a judgment for defendant in the district court on appeal from the probate court, plaintiff brings error. This action was commenced originally in the probate court of Logan county and afterwards on appeal to the district court was tried by the court upon an agreed statement of facts without the intervention of a jury.

Error from Logan County Courtj J. C. Strang, Judge. Action by the Ft. Smith & Western Railroad Company against O. P. Cooper. Judgment ior plaintiff, and defendant brings error. On November 26, 1901, the Ft. Smith & Western Railroad Company, defendant in error, plaintiff below, sued 0.

Error from District Court, Ijogan County, A. II. Huston, Judge. Action by B. F. Berkey against Arthur B. Armstrong, local agent for the sale of liquors. Judgment for plaintiff, and defendant brings error.

<p> Error from the United States Court for the Northern District of the Indian Territory; Joseph A. Gill, Judge. </p> <p>Action by Jud Cogswell against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brought error to the United States Court of-Appeals in the Indian Territory, and plaintiff filed a cross-bill, and the cause was from that court transferred to the Supreme Court of Oklahoma under the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267).</p> <p>This action was brought by Jud Cogswell, plaintiff, against the Atchison, Topeka & Santa Fe Railway Company, defendant, in the United States District Court for the Northern District of the Indian Territory at Bartlesville, for damages sustained on account of personal injuries by him received at defendant’s station platform in the town of Bartlesville, caused by the alleged negligence of the railway company. The negligence alleged by plaintiff on account of which he seeks to recover his damages is as follows:</p> <p>“That on or about the 28th day of December, A. D. 1906, said defendant, disregarding its duties, negligently and carelessly permitted the said platform at said station or depot house to be in improper and dangerous condition, and to be and remain in an unsafe and dangerous condition, and said station and platform Avere by defendant negligently and carelessly operated, kept, and maintained, in that said defendant suffered, alloAved, and permitted a large hole to be in said platform of said station, which was by defendant negligently and carelessly covered by a loose and unnailed board, and that on said date the plaintiff while lawfully, rightfully, and necessarily Avalking along and over said platform, for the purpose of meeting a friend whom he expected on an incoming train, did, betAveen the hours of 8 and 9 o’clock in the evening of said day, step and fall into and through said hole; that in order for the plaintiff to enter said station, or to meet said train it was necessary for him to pass over said platform wherein Avas said defective portion and hole; that the said platform Avas not lighted, and on said evening was dark, and that said unsafe and dangerous condition of said platform was Avell known to said defendant.”</p> <p>He alleged that, solely by reason of said negligence of defenddant in permitting said hole and loose board to remain as alleged, he Avas precipitated into and through the hole in the platform, and bis leg was seriously and permanently injured. Defendant in its answer specifically denies all the allegations of the petition. The case was tried to a jury, who returned a verdict for plaintiff, and assessed his damages at $1,600. On motion for a new trial the court required the plaintiff to elect to accept a judgment for $1,-000 in lieu of the amount fixed by the jury, which plaintiff declined to do. The court then remitted $600 upon his own motion from the amount fixed by the jury, and rendered judgment in favor of plaintiff for ~$1,000. From this judgment defendant appealed to the United States Court of Appeals of the Indian Territory, and plaintiff has filed his cross-appeal, complaining of the court’s action in reducing the judgment. The case is now be-for this court for final disposition under the provisions of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 267).</p> <p>No copies of briefs reached 'the reporter.</p>

■Original application by the Atchison, Topeka & Santa Ee Railway Company for a writ of mandamus to be directed to J. E. Love, chairman, and the Corporation Commission of the state of Oklahoma. • - On the 19th day of December, A. D. 1908, the Atchison, Topeka & Santa Fe Railway Company filed its petition in this court, alleging: (1) That it is a corporation organized under the laws of the state of Kansas, and owning and operating a line of railway in the state of Oklahoma,…

Error from District Court, Logan Countyj A. E. Huston, Judge. Mandamus by J. F. Hill against C. M. Barnes as mayor and E. W. Kinnan as clerk of tlie city of Guthrie. Judgment for plaintiff, and defendants bring error.

Petition by the State and others before the Corporation Commission, against the Atchison, Topeka & Santa Fe Railway Company. From the order entered against the Railway Company, it appeals. On the 8th day of May, A. D. 1908, the patrons of the Blacltburn-Skedee Telephone Company petitioned the Corporation Commission to require the Atchison, Topeka & Santa Fe Railway Company to install and maintain a telephone in its station or depot at Skedee, Okla.

<p>Application by the Kansas City Southern Railway Company for an order to J. E. Love, chairman, and the Corporation Commission, to certify facts on which a certain order issued by the commission was based.</p> <p>Original application for an order directing the chairman of the Corporation Commission, or said commission, to certify, under the seal of said commission, to this court, all of the facts upon which order No. 105 was based, and which may be essential for a proper decision of the appeal from said order, together with such evidence introduced before or considered by the commission in making said order as may be selected, specified, and required to be certified by any party in interest, as well as such other evidence so introduced or considered as the commission may deem proper to certify, and also a written statement of the reasons upon which the action sought to' be appealed from is based, and a copy of the complaint and answer and of the order in said action, and further for a supersedeas. Awarded on condition.</p>

<p>1. CORPORATION COMMISSION- — 'Telegraphs and Telephones— Regulation of Rates — Appeals—Procedure. By section 22 of article 9 of the Constitution (Bunn’s Ed. sec. 23li), it is made the duty of the State Corporation Commission, upon hearing a petition for an order to reduce the rates charged by a telephone company tor services on its local exchange, to make finding of facts upon which the order of the commission is based, and, on appeal to the Supreme 'Court from such order, to certify the. facts found by it to the Supreme Court.</p> <p>2. SAME — Remand. When the Corporation Commission upon making an order prescribing the rates which a telephone company may charge for services on its exchange fails to make a finding of facts and to certify the same to the Supreme Court on appeal from its order, the Supreme Court may under said section of the Constitution remand the case to the commission, with directions to find the facts upon which the commission bases its order, and to certify the same to the court, before the appeal is finally decided.</p> <p>(Syllabus by the Court.)</p>

Action by the State, and others against the Atchison, Topeka & Santa Fe Railway Company before the Corporation Commission. From the judgment, the Railway Company appeals.

<p>Application of E. S. Wilhite for a writ of mandamus to M. R. Mansfield and others. Writ awarded.</p> <p>On the 7th day of August, A. D. 1908, the plaintiff, E. S. Wilhite, of Alfalfa county, for himself and all other resident taxpayers similarly situated, instituted this action for peremptory mandamus to compel M. R. Mansfield, John Zimmerman, and J. C McWilliams, as the board of county commissioners of Alfalfa county, to appoint trustees for what is alleged to be the high school of Alfalfa county, situated at Helena therein. He alleges that ever since the 16th day of November, A. D. 1907, he has been an actual resident and taxpayer of Alfalfa county, Okla., having a son and daughter who are entitled to- attend the county high school at Helena in said county, and that prior to the 16th day of November, A. D. 1907, he has been an actual resident and taxpayer in the then county of Woods, territory of Oklahoma, for more than four years; that prior to November 16, A. D. 1907, the territory embracing Alfalfa county was a part and parcel of Woods county, Okla. T., and that, under and by virtue of the provisions of the Constitution of Oklahoma, Alfalfa county embraces territory which prior to November 16, A. D. 1907, was included in Woods county, Okla. T.; that prior to the 8th day of November, A. D. 1904, the then board of county commissioners of Woods county, Okla. T., having investigated the matter of the establishment of a high school near Helena in said county, and having exercised their discretion and judgment in the matter regarding the matter to be submitted to the voters of said county according to law, after resolution duly passed to give due and legal notice of the submission of the question as to whether or not the high school should be established at the town of Helena in said county to the qualified voters therein, as required by section 2, art. 1, c. 28, p. 187, of the Session Laws of said territory for 1901; that at said election held in said county on the 8th day of November, A. D. 1904, said proposition as to the establishment of said high school at said place was submitted to the qualified voters of said county, and was duly and legally voted upon by the electors, and that the returns of said election have been duly canvassed by proper officers and made to the then board of county commissioners of Woods county in said territory, and the result of said election announced and made of record; that at said election there were cast, canvassed, and counted' for the establishment of said high school for the county of Woods at Helena 2,509 legal votes, and against the establishment of said high school 2,140 votes, a majority of the votes of what is now Alfalfa county having been cast in favor of the establishment of said high school, and said question as to the establishment of said high school carried by a majority of 369 votes; that the result of said election was duly announced, and tire high school established at the town of Helena in said county, under and by virtue of the provisions of chapter 28, p. 187, of the Session Laws of the territory of Oklahoma for the year 1901. He further alleges that six qualiñed property owners were appointed a board of trustees, and that they qualified and entered upon the discharge of such duties, procured a site for the erection and construction of said high school building, and caused the building to be constructed in which to conduct the school, and purchased the supplies, materials, and equipment for said school; that ever since said building was constructed and said school furnished with the necessary equipment it has been a going and flourishing institution, located in the town of Helena; that said board of trustees of said high school contracted for an expenditure of about $20,000, which was a reasonable, legal, and proper expenditure; that since the 16th day of .November, A. D. 1907, vacancies have occurred in the office of the board of trustees of said school, and that at the present time there is no board of trustees authorized to act as such for said high school, and that it is necessary that a board of trustees for said school be appointed immediately in order that said board may immediately reorganize and employ a suitable person to take charge of said school as principal and employ such assistant teachers as may be necessarj', provide salaries therefor, and appoint a secretary and treasurer, who shall perform such duties' devolving upon such officers as required by law, and that they shall proceed to make an itemized estimate of the amount of funds needed for the payment of teachers’ wages and contingent expenses, and other necessary expenses which may be incurred in the conduct of said school for • the coming year, and that they shall present to the board of county commissioners of Alfalfa county certified estimate of the rate of tax required to raise the amount necessary for such purpose, as required by law.</p> <p>It is further alleged that under the provisions of the act of the Oklahoma Legislature, approved April 10, A. D. 1908 (Laws 1907-OS, p. 280, c. 26, art. 2), the title to the high school building erected at Helena has become the property of Alfalfa county, and that the school located at Helena became and is a part and parcel of Alfalfa county, and that the board of county commissioners of said county should appoint a board of trustees as provided by law, in order that such high school may lie a going and existing institution.</p> <p>Plaintiff further alleges that he made demand for the appointment of the trustees of said high school, and that the board of county commissioners refused to make such appointment.</p> <p>The county attorney of Alfalfa county, acting for the board of county commissioners, entered into an agreed statement of facts, which supports the foregoing allegations.</p> <p>L. A. Salter, F. N. Winslow, W. T. Barrett, A. ,1. Titus, A. H. Stroud, Luther Martin, J. W. Howard, and S- B. McFadden, having obtained leave of this court, intervened in this action, and alleged that they were residents of Alfalfa county, and owners of property aggregating the value of $250,000, which was subject to taxation. They demurred to the sufficiency of plaintiffs complaint and tile agreed statement of facts, insisting.that on the facts alleged and agreed to by the county attorney the plaintiff was not entitled to the writ of mandamus to compel the board of county commissioners of Alfalfa county to appoint trustees for the alleged high school, and that there is no high school in Alfalfa county..</p> <p>The county high school in cpiestion — the institution as well as the buildings — became the property of Alfalfa county: Winslow y. France, 20 Olda. 303; Corn’s of Lwramie County v. Corn’s, 92 U.' S. 307; Parsons v. Winslow, 1 Grant’s Cas. (Pa.) 159; County of Lackawanna■ v. Stevens, 105 Pa. St. 465; Endlick, Interpretation of Statutes, § 73; Bunn’s Const. §§ 275, 450, 451; Sess. Laws Olda. 1901, p. 187; Sess. Laws Olda. 1907-08, p. 280.</p> <p>contended that, though the high school building became the property of Alfalfa county, the school as an institution did not, and no legal authority existed for the operation and maintenance of such high school by Alfalfa county — citing Atty. Gen. ex rel. v. Fiizp abide, 2 Wis. 397; People v. Morrow, 21 Wend. (N. Y.) 563.</p>

<p>1. APPEAL AND ERROR — Presumption Against Error. Error is never presumed by the Supreme Court; it must always be shown affirmatively by the record, or it will be presumed that no prejudicial error was committed by the trial court, and the judgment will be sustained.</p> <p>2. SAME — Overruling Motion for New Trial Pro Forma. The overruling of a motion for a new trial pro forma by a trial court is not in itself, and in the absence of any claim that the judgment of the court on the merits of the cause is erroneous, sufficient to require a reversal of the cause.</p> <p>(Syllabus by the Court.)</p>

Error from ■District Court, Comanche County; F. E. Gillette, Judge. Action by Freda Richards against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. On tender of return of consideration for release as a prequisite to suit for damages: Wilson’s Rev. & Ann. St. 1903, § 827; Hill el al. v. N. P. By. Co., 113 Fed. 914; Harrison v. A. M. B. Co. (Ala.) 40 South. 394; Ilarkey v. M. é T. Ins.

<p>Application by George W. McNaught for a writ of habeas corpus. Writ dismissed.</p> <p>On the 11th day of January, A. D. 1909, the relator filed his petition in this court, alleging that on the 28th day of September, A. D. 1908, at a regular term of the district court of Kingfisher county, state of Oklahoma, the county attorney of said county filed in said court a certain information in two counts, charging him with the crime of murder and manslaughter. That thereafter, to wit, on the 29th day of September,. A. D. 1908, re-' lator appeared in open court, and entered his plead of “not guilty” to the charge under said information. That during said term of court the relator was placed on trial, and on- the 20th day of October. A. D. 1908, the jury returned into open court its verdict in said cause, in words and figures as follows, to wit: “We, the jury in the above entitled cause, do upon our oaths find the defendant, George W. McNaught, guilty of manslaughter in the first degree, as charged in the second count of the information.” That on the 23d day of October, A. D. 1908, relator’s motion for a new trial was overruled by said court, and exceptions allowed, and sentence was then and there pronounced against him upon the verdict of the jury, sentencing him to imprisonment in the state prison for the term of his natural life. Thereupon the relator was notified-by the district court of his right of appeal to the Criminal Court of Appeals of the state of Oklahoma, and his bail fixed in the sum of $15,000, and allowed 30 days from that date within which to give said bond, -with sufficient sureties, to be approved by the, clerk of said court, and he was further allowed 120 days from said date within which to file petition in error in said Criminal Court of Appeals, and was further allowed 90 days therefrom within which to make and serve case-made for such appeal, with 10 days thereafter to the state of Oklahoma to suggest amendments thereto; said case-made to be settled and signed upon 5 days’ notice in writing by either party thereto.</p> <p>On the 7th day of December, A. D. 1908, relator applied to the Criminal Court of Appeals of the state of Oklahoma for a writ of habeas corpus, which rvas issued 'and made returnable before said court, and on the 11th day of January, A. D. 1909, said court discharged said writ, and remanded relator to the custody of the sheriff of Kingfisher county, state of Oklahoma. Thereupon said prisoner applied to this court for a writ of habeas corpus.</p> <p>contend that the provision of the Constitution relating to prosecution of felonies by information is not self-executing to the extent of authorizing such procedure without supplementary enactments by the Legislature: Const, art. 5, § 45;' Schedule, art. 24, § 2; Wilson’s Rev. & Ann. St. 1903, § 5304; State v. Ah Jim (Mont.) 23 Pac. 76; In re Durban (Mont.) 25 Pac. 442.</p> <p>The Oklahoma Constitution and laws in force provided a complete procedure for prosecution of felonies by information: State v. Kyle, 166 Mo. 287; Davis v. Burlce, 179 U. S. 339; People v. Hodge, 55 Cal. 612; State v. Babcoclc, 19 Neb. 230; 8 Cyc. 754; 10 Cent Dig., title Const. Law, § 33.</p>

<p>Error from Jefferson County Court; C. E. Davis, Judge Pro tempore.</p> <p>Action by J. H. Bettis against A. C. Cargile and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error frdm Kingfisher County Court. </p> <p>Action by Pauline Lemley against the Board of County Commissioners of Kingfisher County and Kingfisher County. Judgment for plaintiff, and defendants bring error.</p>

Lawrance, Judge. ‘ Ejectment by Gertrude Hensley against James R. Capps and others. Judgment for plaintiff, and defendants appealed to the United States Court of Appeals of the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma.

Error from District Court, Jefferson County; F. M. Bailey, Judge. Action by W. A. Eakin and others against School District No. 8 and others to restrain, the changing of the site of the school of that district. From an interlocutory order denying a motion to dissolve the injunction granted, defendants bring error, and plaintiffs move to dismiss the petition in error.

<p>DIVORCE — Appeal—Notice. Where on appeal from a judgment granting a divorce, plaintiff in error has failed to file, within 10 days after the rendition of such judgment, written notice of his intention to appeal, in the office of the clerk of the court in which the judgment was rendered, as prescribed by section 4840, Wilson’s Rev. & Ann. St. Okla. 1903, this court is without jurisdiction to hear and determine the appeal, and same will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>.Action by Wallace D. Diamond against Eliza Irving and others. Judgment for plaintiff. Defendants bring error.</p> <p>31 Stats. U. S., c. 676, § 28; 32 Stats. IJ. S. 500, c. 1323, § 6'; Stats. Ind. Ter., c. 21, § 1820; DeGraffenried v. Iowa Land & T. Co., 20 Okla. 687.</p>

<p> Error from District Court, Custer County; C. F. Irwin, Judge. </p> <p>Action by Frank Kraft against Charles W. Goodwin. Judgment for plaintiff, and defendant brought error to the Supreme Court of the territory of Oklahoma, whence the cause is transferred to the Supreme Court of the state of Oklahoma.</p> <p>On August 26, 1905, Frank Kraft, defendant in error, plaintiff below, hereafter called plaintiff, sued Charles W. Goodwin, plaintiff in error, defendant below, hereafter called defendant, in the district court of Custer county, Oída. T., the petition stating, in substance, that he was a resident of the city of El Reno, and in 1901 had several thousand dollars to loan at a reasonable rate of interest upon fihst class improved mortgaged security; that defendant was engaged in the business of bank and loan broker in Arapaho, in said county, and solicited plaintiff to permit him to act as his agent in making loans in said county, representing the same to be a good locality for that purpose; that he was familiar with land titles therein, “and would look after loans of plaintiff in tlie same manner that he would transact his own business, and make for the plaintiff loans upon good farms” in said county, “and obtain as security therefor first mortgages”; that with this understanding defendant negligently and carelessly made a loan of $700 of plaintiff’s money to certain parties, which through his negligent and careless action in making the loan was lost, and prayed judgment against defendant in the sum of $700, with interest thereon from the date of the loan, and for the cost of the action. On October 10, 1905, defendant filed answer, and pleaded a general denial and the statute of limitation. On November 28, 1905, plaintiff filed repty, which was, in effect, a general denial, and on April 6, 1906, in open court, both parties waived a jury and submitted the cause to the court “for decision and judgment upon the pleadings,” and the following agreed statement of facts:</p> <p>“(1) That on or about September 25, 1901, the plaintiff placed in the hands of the defendant the sum of $2,000 to be loaned by the defendant for the plaintiff, in the plaintiff’s name, on first real estate mortgages upon farm lands in the county of Custer, in the territory of Oklahoma.</p> <p>“(2) That said loans were to be made by the defendant without expense to the plaintiff, but that the defendant might charge a commission to borrowers in compensation for his services,' if he saw fit.</p> <p>“(3) That the defendant had been and was at said time engaged in the business of making loaPs in Custer county, and was known by the plaintiff to be in that business. That defendant, learning that the plaintiff had money which he desired to loan, proposed and offered to lend money for the plaintiff in Custer county, and assured plaintiff that he would use such care in making said loans as he used in transacting his own business in like character.</p> <p>“(4) That plaintiff, relying solely and entirely on the capabilities of defendant to safely secure loans that he should make for the plaintiff in said county, accepted said offer and turned over to him the said sum of $2,000 to loan for him in said county upon farm securities as provided and upon the terms set forth in paragraphs 1, 2, and 3 of this statement of facts.</p> <p>“(5) That thereafter, and on November 3, 1901, the defendant negotiated a loan for the sum of $700 in plaintiff’s name with one W. S. Wishard, and accepted as security for said loan a real estate mortgage, purporting to be a first mortgage lien upon lots 1 and 2, and the S. 1/2 of the -N. E. 1/4, of section 1, township 12 north, of range 15 west, of the Indian Meridian, in Custer county. That the evidence of indebtedness secured by said mortgage consisted of three promissory notes — one for $100 due in six months, one for $100 due in one year, and one for $500 due in five years — each bearing interest at the rate of 10 per cent, per annum, and conditioned that upon the failure to pay interest semiannually the holder of said-notes might elect to declare the whole sum of said indebtedness due, said notes being signed by W. S. Wishard and Florence M. Wishard, his wife, payable to the plaintiff, and the said mortgage was executed by the same parties.</p> <p>“(6) That the plaintiff at the time of said loan was made had no personal knowledge of the circumstances of its being negotiated and at no time thereafter had anjr knowledge concerning the same, except the fact that the notes and the said mortgage, after the same had been recorded, and the abstract of title were transmitted to the plaintiff at his home in El Reno, O. T., that upon the receipt of said purported securities the plaintiff placed the same in his safe, without examining them further than to see what the same purported to be, relying wholly upon the judgment, capabilities, and the confidence he had in the defendant to transact said business safely.</p> <p>“(7) That the said Wishards at the time said loan was made were financially irresponsible, and owned no other property subject to execution of any value outside of such title as they had in and io the aforesaid real estate by virtue of the deeds hereinafter referred to, and two lots in the town of Clinton, in said county of Custer, subject to execution.</p> <p>"(8) That the property referred to, to wit, the farm mentioned in said mortgage, was originally entered in the United States Land Office by one Stop Evans, and that the said Emma Evans was his wife at said time, and was thereafter settled upon under the homestead- laws of the United States, and was resided upon and improved under the homestead laws of the United States in full requirement with said laws, and thereafter was proved up as a homestead under said homestead laws by the said Stop Evans, and at all times from the time of making settlement thereon by the said Stop Evans was occupied by him and his wife, Emma Evans, as a homestead, and was during all the times referred to herein occupied and resided upon by them as a homestead. That the final receiver’s receipt to the said Stop Evans bears date of November 21, 1900, and was filed for record October 11, 1901.</p> <p>"(9) That on the 4th dajf of October, 1901, Stop Evans by his deed of general warranty deeded said land to W. S. Wishard, said deed being filed for record on the 11th day of October, 1901, and fully recorded in Book D of Deeds, at page 276. That said deed was acknowledged before L. A. Love, probate judge of Custer county. That thereafter, on October 30, 1901, Emma Evans, the said wife of Stop Evans, conveyed by quitclaim deed the said premises to W. S. Wishard, which said deed was filed for record on November 1, 1901, at 7:50 p. m., and duly recorded in Book D. at page 343. That the same was acknowledged before J. W; Lawter, justice of the peace. That the foregoing instruments of conveyance were the only instruments relating to said lands of record in the county of Custer up until two o’clock p. m. of the 2d day of November, 1901.</p> <p>“(10) That on the 2d day of November, 1901, the said W. S. Wishard and Florence M. Wishard, his wife, executed the said real estate mortgage hereinbefore referred to, to Frank Kraft, and the real estate mortgage was filed for record on the 2d day of November, 1901, at 2 p. m.</p> <p>“(11) That thereafter, the said Wishard having failed to meet said notes as they became due and the interest thereon, the defendant suggested to the plaintiff that the said mortgage had better be foreclosed, and an action commenced in the district court of Custer county to foreclose said mortgage, and said action was commenced, the plaintiff herein being plaintiff in said action, and the said W. S. Wishard and Florence M. Wishard being defendants therein. That pending said action the said Stop Evans and said Emma Evans came into court, and asked leave to intervene in said action, and such leave was given, that by such intervention they set up and claimed paramount title to said, real estate. That said action proceeded to final judgment, and the following judgment was entered in said action. (Here followed judgment of the district court, decreeing among other things the deeds from the said Stop Evans to Wishard to be null and void, and rendering judgment in favor of plaintiff against defendant for $1,040 and costs.)</p> <p>“(12) That the plaintiff had no knowledge of the condition of said title or the rights and interests of the said Stop and Emma Evans therein, until the said intervention by the said Stop and Emma Evans in said action. That said plea of intervention was made by the said Stop Evans and Emma Evans on the 25th day of March, 1903.</p> <p>“(13) That the defendant knew at the time he accepted said mortgage that the said land was at the time of the execution of the said deed by the said Stop Evans and Emma Evans, the homestead of the said Evans.</p> <p>“(14) That thereafter, in due course, execution was issued against the said W. S. Wishard and Florence M. Wishard, directed to the sheriff of Custer county,, and the same was levied upon the said two lots in the town of Clinton, which were thereafter offered for sale according to law, but, there being no bidders for said property, said execution was returned showing such facts.</p> <p>“(15) That the said W. S. Wishard and Florence M. Wishard are and have at all times since the rendition of said judgment been without property from which said judgment could be satisfied in whole or in part, except said two lots, which are of the value of about $100.</p> <p>“(16) That plaintiff’s expenses and court costs incurred by reason of the prosecution of said foreclosure proceedings amount to the sum of $40.</p> <p>“(17) That the said homestead of the said Stop Evans and wife, at the time the said mortgage was executed by the said Wishards to the said plaintiff herein, was of the reasonable value of $2,500.</p> <p>“(18) That at the time the said W. S. Wishard and wife applied to the defendant for the said loan they furnished to said defendant an abstract of title to said land, which abstract of title was made by a duly qualified and bonded abstracter in and for the county of Custer, in the territory of Oklahoma. That said abstract of title showed the conveyance hereinbefore mentioned from said Stop Evans and Emma Evans to the said W. S. Wishard, and also the final "receipt from the United States to said Stop Evans issued upon final proof having been made by him under the homestead laws of the United States.- That said abstract of title did not show any other instruments affecting real estate, except those nereinbefore mentioned.</p> <p>“(19) That in making loans in said county in his own business the said defendant always required an abstract to be furnished by the borrowers exhibiting their titles in and to said lands proposed as real estate security, and upon inspection and examination of said abstracts for the purpose of determining, and satisfying himself as to the title of the proposed borrower in and to the land proposed as security, the defendant passed upon the sufficiency of the title in and to the lands. That, upon the presentation of the abstract by the said W. S. Wishard, the said defendant examined the same for the purpose of passing upon the same, and satisfying himself as to the insufficiency and legality of the title of the said Wishard in and to the land proposed to he given as security for the payment of the said loan, and exercised the same degree of care, skill, and diligence in passing upon said title that he was accustomed to exercise in his own brrsiness of like and similar na.ture, and it was his honest judgment that said abstract of* title showed good title in the said W. S. A¥ishard in and to the said farm hereinbefore mentioned.</p> <p>“(20) That the said title of said Wishard was not defective in any respect, if at all, save and except that the said Emma Evans did not join with her husband. Stop Evans, in his deed to said Wishard, and the said Stop Evans did not join with his wife, Emma Evans, in her said deed to Wishard, and it was upon said facts that the court rendering the final judgment declared the said deeds void and the mortgage of the said Wishard to the said plaintiff herein also void.</p> <p>“(21) It is further stipulated that any facts hereinbefore or hereinafter stipulated between the parties hereto, which would not be susceptible to proof under the issues of this case, are not to he considered.</p> <p>“(22) That the defendant received no compensation from either the plaintiff herein, or from the said Wishard or Wishards, for the making of the said loan.</p> <p>“(23) That at the time the defendant examined the said, abstract, and the title of the said W. S. Wishard in and to said farm, as shown by such abstract, he was familiar with the chapter on conveyances of the Session Laws of 1897 of Oklahoma, now chapter 16 of Wilson’s Revised and Annotated Statutes of Oklahoma of 1903, and upon examination of said chapter was of the opinion that, where both husband and wife execute separate deeds of conveyance of the homestead of the husband, they are concluded by such deeds by virtue of said chapter of the statute, and was of such opinion at the time he examined said title and abstract as aforesaid.”</p> <p>There was judgment for the plaintiff, and, defendant having brought the case to the Supreme Court of the territory of Oklaboma by proceedings in error, tlie same is now before ns for review as successor of that court.</p> <p>A cause being submitted upon an agreed statement of facts, the court cannot supply an omitted fact by inference: Gray v. Crockett (Kan.) 1 Pac. 57; Gillett v. Board of Trade (Mich.) 9 N. W. 428; Morse v. Fraternal Ass’n (Mass.) 77 N. E. 491; Collins v. Waltham (Mass.) 24 N. E. 327; Old Colony B. Co. v. Wilder, 137 Mass. 538.</p>

<p>APPEAL AND ERROR — Record—Motion to Vacate Judgment. A motion to vacate and modify a judgment, not being preserved in the transcript by bill of exceptions, so as to make it a part of the record, can not be considered.</p> <p>(Syllabus by the Court.)</p>

<p> Error .from. District Court, Washita County; M. C. Garber, Judge.. </p> <p>Action by W. F. Chester and another against A. D.- Berry. •Judgment for plaintiffs, and defendant brought error.</p>

Error from the United States Court for the Southern District of the Indian Territory at Pauls Valley; J. T. Dickerson, Judge. Action by Mrs. J. B. Richardson against W. B. Lowrance. Judgment for plaintiff, and defendant brought error to the United States Court of Appeals in Indian Territory, whence the cause was transferred to the Supreme Court of the State of Oklahoma.

<p>INDIANS — Removal of Restrictions — “Alienation of Lands” — Mining Leases. An oil and gas mining lease is an ‘.‘alienation oí lands,” within the meaning of an act of Congress approved April 21, 1904 (Act April 21, 1904, c. 1402, 33 Stat. 204), providing that “all restrictions upon the alienation of lands of all allottees of either of the Five Civilized Tribes df Indians who are not of - Indian blood, except as to minors are, except as to homesteads, hereby removed.”</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Southern District of the Indian Territory, at Ardmore; Hosea Townsend, Judge. Application bj Rual F. Taylor for the probate of the will of Maggie Taylor, deceased. From a decree in favor of contestants, W. L. 0.

<p>CORPORATIONS — Action by Foreign Corporation — Petition. A foreign corporation need not allege due compliance with the laws of Oklahoma as respects doing business in the state, and the petition if otherwise sufficient is not subject to demurrer.</p> <p>(Sjdlabus by the Court.)</p>

Error from District Court, Muskogee County; John Pi. King, Judge. Action by Eula Olentine against Charles Olentine for divorce. The action was settled by an agreement, and from an allowance of attorney’s fees to George K. Powell and Howell Parks, Charles Olentine brings error. Ford, v. McIntosh et al., 22 Okla: 423.

Error from District Court, Muskogee County.. Action by the Ahren-Ott Manufacturing Company and others against C. H. Condon and others. Judgment for defendants, and plaintiffs bring error, and defendants move to dismiss the writ of error.

On Mandate from Circuit Court of Appeals, Eighth Circuit. Action by Ed. D. Sittel against Yancey Lewis and others. Judgment for plaintiff, and defendants brought error to the United States Circuit Court of Appeals for the Eighth Circuit, where the judgment was affirmed (165 Fed. 157), and Lewis and such others move to dismiss the mandate of that court and hold the same for naught.

<p>1. APPEAL AND ERROR — Dismissal—Defects in Proceedings for ■Review — Estoppel. When parties have tried a ease as an equitable proceeding, before a master .in chancery, -without objection, they cannot, in this court, object that the case was an action at law, and that an appeal taken as from an equitable proceeding be dismissed for failure to comply with requirements of appeals in law cases.</p> <p>2. SAME — Bill of Exceptions — Necessity—Probate Matters in Federal Courts. Proceedings in the United States courts in the exercise of the customary jurisdiction of probate courts are proceedings in equity. They are reviewable by appeal and not by writ of error, and no bill of exceptions is necessary to bring the evidence, affidavits, and other proceedings therein upon the record, because they are a part of it.</p> <p>3. SAME — Report and Findings — Conclusiveness. When the parties to a suit in equity consent to a reference thereof to a master to hear and decide all the issues therein and report his findings, both of fact and of law, such findings of fact should have been treated as so far correct and binding as not to be disturbed, unless clearly in conflict with' the weight of the evidence upon which they were made.</p> <p>4. BASTARDS — Presumption of Legitimacy. In controversies involving heirship and the legitimacy of children, the presumption of law is in favor of legitimacy, and the reason back of this presumption is that the law encourages decency and morality and right living.</p> <p>5. SAME. After a long lapse of time, where proof is given that certain persons are the children of a certain man and woman and were so recognized and treated by the parents and other members of the family, legitimacy will be presumed, even though there was no direct evidence of the marriage of the father and mother.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Cleveland County; C. F. Irtvin, Judge. Ejectment by Neal Smith and another against Elizabeth Kramer, executrix of the estate of C. Kramer, deceased-. Judgment for plaintiffs, and defendant brings error. cited Wade v. Crouch el al., 14 Olda. 593; Hanenhratt v. Hamil, 10 Olda. 219; Lowensiein v: Sexton, 18 Olda. 322; Weelcs v. MerTele, 6 Olda. 714.

<p>1. EVIDENCE — Parol Evidence Affecting Writings — Merger of Prior or Contemporaneous Negotiations. The execution of a contract in writing supersedes all the oral negotiations or stipulations concerning its terms and subject-matter which preceded or accompanied the execution of the instrument, in the absence of accident, fraud, or mistake of fact; and any representation made prior to or contemporaneous with the execution of the written contract is inadmissible to contradict, change, or add to the terms plainly incorporated into and made a part of the written contract.</p> <p>2. EVIDENCE — Parol Evidence Affecting Writings — Notes—Consideration. Where by the terms of a written contract it is specifically stated that it is executed and delivered for and in consideration of the credit granted by one of the parties to a third person on the purchase price of certain machinery bought of said party by said third person, such provision in relation to the consideration binds the parties within the rules applicable to written contracts and can no more be altered or varied by oral evidence than any other part of the contract, in the absence of fraud, accident, or mistake.</p> <p>3. CONTRACTS — Validity—Fraud. If a party is induced to sign a contract by fraud, he can, of course, avoid it for that -reason. It is, however, clear that merely falsely representing to a man in possession of his faculties and able to read that a writing embodies their verbal understanding is not the fraud the law means.</p> <p>4. PLEADING — Motions to Strike Pleading — Insufficient Allegations. Where a motion to make an answer more definite and certain is sustained, and the amended answer measurably complies with the order of the court by making the answer more definite and certain in the particulars thereby required, it is error to sustain a motion to strike such amended answer from the files, although it may not state facts sufficient to constitute a defense.</p> <p>(Syllabus bv the Court.)</p>

<p>1. APPEAL AND ERROR — Review—Questions of Fact — Verdict When there was evidence introduced on the trial of a cause reasonably tending to establish the negligence of the defendant, the verdict of the jury on that point is conclusive and will not be set aside by the Supreme Court.</p> <p>2. SAME — Determination and Disposition of Cause — New Trial. If, upon a .cause being remanded for a new trial, the court below has proceeded in substantial conformity with the directions of the appellate court, its action will not be questioned on a second trial.</p> <p>(Syllabus by the Court.)</p>

<p>ATTACHMENT — Bond Discharging Attachment — Liability of Obligor. An obligor on a bond to discharge an attachment, under the provisions of section 4404, Wilson’s Rev. & Ann. St. Okla. 1903, conditioned that the defendant will perform the judgment of the court in the action in which the attachment -is issued, is absolutely liable in an action against him on the 'bond for the amount recovered in the action in which the bond was given, without reference to the question whether the attachment was rightfully or wrongfully issued, and the defendant is precluded by such bond from controverting the grounds of the attachment.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Review Ineffectual. 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>

F. Bunvell, J udge. Suit by the territory of Oklahoma, on relation of R. G. Hays, County Attorney of Oklahoma county, against B. H. Powell and another to enjoin a nuisance. From an order overruling defendant’s motion to dissolve the temporary restraining order and their demurrers, and granting a temporary injunction, defendants appeal.

<p> Error from District Court, Washita County. </p> <p>" Action by Homer S. Timmons, by bis next friend, against J. B. King. Judgment for plaintiff in the probate court, and, on appeal, judgment for plaintiff in the district court, and defendant brings error.</p> <p>On the 30th dajr of August, A. D. 1906, the defendant in error, as plaintiff brought suit in the probate court of Washita county, territory of Oklahoma, against plaintiff in error, as defendant, to recover the sum of $53.25, for labor alleged to have been performed by him. Fred Burrell was also made a defendant in the court below, but no service was ever had upon him. The petition contained two counts, one against J. B. King and Fred Burrell as partners, and one against J. B. King individually, each count being for the same amount and based upon the same cause of action.</p> <p>The ease was tried before a jury in the probate court, and judgment rendered against said J. B. King, individually, in the sum of $10. Thereafter said J. B. King appealed the ease to the district court, and on the 9th day of November, A. D. 1906, the case was tried before a jury, and a verdict rendered against said J. B. King in the sum of $53.25, the amount prayed for in the petition, and judgment was rendered upon the verdict of the jury. A motion for a new trial in due time was filed and overruled, and exceptions saved, and an appeal taken to the territorial Supreme Court, and the same is now properly before this court, by virtue of the provisions of the Enabling Act and the Schedule to the Constitution, for review.</p> <p>The only evidence in the record to sustain the verdict of the jury for $53.25 is the following:</p> <p>“Q. Now, Mr. Timmons, how long did you work under the contract you had' with Mr. King — how many days’ work did you do? A. Seventeen days and a half. Q. What did you use in laboring for him — I mean with reference to teams and wagons? A. I run a bundle wagon. Q. You furnished, then, a wagon and team and yourself? A. Yes, sir. Q. For how much? A. Two dollars and a half a day. Q. Do you know the total amount, Homer? A. Yes, sir. Q. State the total amount if you know it. A. $53.35.”</p> <p>The plaintiff was required to elect upon which count he would proceed, and stood upon the second count, which was against J. B. King individually, and not as a partner with the said Burrell.</p> <p>The following special interrogatory was requested by the plaintiff in error, to wit: “Do you find that Fred Burrell and J. B. King were partners in the operation of the threshing machine in question in this case ?” which was denied by the court, and exceptions to such action properly saved and reserved in the motion for a new trial.</p> <p>The following instruction was requested by the plaintiff in error, and was refused by the court, and exceptions saved and proper assignment thereof made in the motion for a new trial, to wit:</p> <p>“The jury are instructed that if they find from the evidence that J. B. King, the defendant, and Fred Burrell were partners in the operation of the threshing machine in question, and that defendant employed said plaintiff to perform services on behalf of said partnership and for the partnership, then the defendant, King, would not be liable as an individual, and you will find for defendant.”</p> <p>This instruction was not covered in the general charge.</p>

Appeal from the United States Court for the Southern District of the Indian Territory, at Ardmore; Hosea Townsend, Judge. Chattel mortgage foreclosure by the First National Bank of Cadiz, Ohio, against W. R. Smith, W. N. Taliaferro, and others. Judgment for plaintiff, and Taliaferro appeals. cited: Bank of Indiana v. Anderson, 14 Iowa, 544; Bickford v. Beetles (S. D.) 63 N. W. TTO; Heirs v. Hays, 60 Ind. 452; Williams v. Jackson, 107 IT.

<p> Error from District Court, Kay County. </p> <p>Action by John F. Weaver against Henry Kuehler and another. Judgment for plaintiff, and defendants brought error to the Supreme Court of the territory of Oklahoma, whence the cause was transferred to the Supreme Court of the state of Oklahoma.</p> <p>In the fall of 1900, the plaintiffs in error leased 3 acres of land in the S. 1/2 of the S. E. 1/4 of the N. E. 1/4 of section 22, township 28 N., range 2 E., of the Indian Meridian, in Kay county, Okla. T., and located a slaughterhouse thereon, and used it continuously for that purpose until restrained by a temporary writ, issued in a certain action instituted in the district court of Kay county, Oída. T., on the 25th day of October, 1905, by John Weaver, as plaintiff, the defendant in error in this court, against Henry Kuehler and Amelia Kuehler, as defendants, the plaintiffs in error in this court. In the fall of 1905 said defendants purchased 20 acres of land, including said 3 acres, for the purpose of having a suitable place to feed and keep their live stock in conjunction with their slaughterhouse, the location of which was within less than half a mile from the corporate limits of the city of Newkirk, and of a tract of land platted into lots and blocks as College addition to said city, and within less than half a mile of lands platted to be sold as residence iots, and which were actually sold for that purpose.</p> <p>The plaintiff resided with his family about three-eighths of a mile from the defendants’ slaughterhouse on the S. E. 1/4 of section 27, township 28 N., range 2 E., of the Indian Meridian, a tract contiguous to defendants’ 20 acreg, and outside the corporate limits of the city of Newkirk and its additions. A creek, called Spring creek, ran through and across the premises of both parties,' the plaintiff’s dwelling house being downstream from the defendants’ slaughterhouse, and situated about 20 rods back from the creek. Near the dwelling house is a spring, from which plaintiff and his family procured their water for family purposes. Plaintiff averred the location of defendants’ slaughterhouse to be within less than half a mile from the corporate limits of the city of Newkirk, and from a tract of land platted into lots, etc., and of special injury to himself, in that defendants permitted to remain upon the premises, in and near the slaughterhouse and creek, the offal, refuse, and unsalable portions of the animals slaughtered, a part of which, through the creek, becomes scattered over and upon his premises, causing the water in the spring to become unwholesome and unfit for use, and that the decay and decomposition on the premises of both parties creates a foul, unwholesome stench and odor. arofind his dwelling house, endangering the health of plaintiff and his family.</p> <p>A permanent injunction against the defendant from using their premises for slaughterhouse purposes was prayed for, and a temporary restraining order issued out of the probate court of Kay county on the 25th day of October, 1905, the date of the filing of the petition in said action in the district court. On the 20th day of November, 1905, the defendants filed their answer, which contained a general denial; also a demurrer to that part of plaintiff’s petition alleging the location of defendants’ slaughterhouse to be within less than half a mile from the corporate limits of the city of Newkirk and its additions. On the 26th day of November, 1905, the defendants filed a motion to dissolve the temporary writ, 'upon the grounds as set forth in their answer, which was attached to and made a part of said motion. A partial hearing was had on the 1st day of December, 1905, and both parties • ordered to submit additional evidence in the form of affidavits. On the 30th day of December, 1905, the matter came on for final hearing, and the court rendered judgment modifjdng the temporary order issued, and permitting the defendants to operate their slaughterhouse, but enjoining them from permitting any offal, refuse, or unsalable matter of said business in any manner to be conducted into the stream running through the defendants’ slaughterhouse yard, and enjoining said defendants, their agents, and employes, from permitting any offal or refuse matter to accumulate in, about, or near the said slaughterhouse premises, and from permitting any bones, carcasses, or other objectionable matter resulting from the slaughter of cattle and hogs at said slaughterhouse to remain and decay upon any part of said slaughterhouse premises.</p> <p>From the judgment modifying the temporary order the plaintiff appealed to the Supreme Court of the territory of Oklahoma, and on the 5th day of September, 1906, the order of the trial court permitting the defendants to conduct and operate their slaughterhouse, but restraining them from such usage as to create a nuisance to the plaintiff or the public, was affirmed on the ground that it was not averred that the plaintiff was the owner *of any real estate, as required by section 624, 626, Wilson’s Eev. & Ann. St. 1903 (chapter 15, art. 11, §§ 1, 3, St.-1893), and therefore did not bring himself within the provisions of said chapter in order to have such nuisance as was declared against therein abated, it being provided in said sections that “it shall be unlawful for any person to maintain a slaughterhouse within less than one-half mile of any tract of land platted into lots and blocks as an addition to any town or city within the territory of Oklahoma, or to maintain such slaughterhouse within one-half mile of any tract of land platted into acre tracts for the purpose of being sold for residence and in which tracts of land have actually been sold for residence purposes,” and that the maintaining of any slaughterhouse in violation of the provisions of said act is declared to be a nuisance, and any persons owning real estate within any such addition, or within lands platted and set apart to be sold for residence purposes, may maintain an action in the courts to abate such nuisance*, and to enjoin its continuance. Weaver v. Kuchler, 17 Okla. 189, 87 Pac. 600.</p> <p>On the 28th day of September, A. D. 1906, after the Supreme Court had affirmed said judgment, the plaintiff made application to the district court for leave to file an amended petition in said cause, which was granted, a portion of said order being in words and figures as follows:</p> <p>“This cause came on for hearing on application of the plaintiff for leave to file an amended petition herein, setting forth in said amende^ petition that the plaintiff was, at the time of the bringing of the action and the filing of his original petition, the owner of lots eleven (11), twelve (12), and thirteen (13) in'block eight (8), lots one (1), two (2), and three (3) in block twenty-one (21), lot nine (9) in block fourteen (14), and lot one (i) in block twenty-three (23), all situated in the Academy addition to the city of Newkirk, and within the corporate limits of said city.”</p> <p>To the granting of said order defendants objected and duly excepted. The amended petition was accordingly filed on the same day. On the 29th day of September, A. D. 1906, defendants filed their motion in said cause, in words and figures as follows:</p> <p>“Come now the defendants, and move the court to require the plaintiff to separately state and number his two causes of action attempted to be set forth in his amended petition filed herein.”</p> <p>Said motion was overruled by the court, defendants saving their exceptions. On the 11th day of October, A. D. 1906, the plaintiff filed his application for an injunction against said defendants. On the 20th day of October, A. D. 1906, the defendants filed their answer, setting up that on the 25th day of October. A. D. 1905, the plaintiff filed his petition, and' caused summons to issue thereon against the defendants, and each of them, which was duly served; that pursuant thereto defendants, on November 20, A. D. 1905, filed their answer to said petition, and thereby and therein joined issue with the plaintiff as to the matters and facts in said petition contained; that on the 28th day of November, A. D. 1905, the defendants filed their motion to dissolve the temporary injunction theretofore granted by the judge of the probate court, acting in the absence of the district judge, and cause notice of tire hearing of said motion to be served on plaintiff, as provided bjr law; that said cause having been heard, the district court rendered its judgment, as hereinbefore appears in the statement of facts.</p> <p>Defendants further alleged that each and all of the matters and facts charged and alleged in plaintiff’s amended petition existed at and prior to the filing of their original cause of action, and that the judgment of the court therein is pleaded as a bar to the matters and facts set out in the plaintiff’s amended petition, that no new facts are pleaded in said, amended petition that did not exist, and that were not well known to the plaintiff at and prior to the time of the filing of his original petition in this cause, and that the plaintiff is therefore estopped from recovering any relief as prajrfed for in his amended petition. Defendants further deny each and every allegation in said petition, except they admit that they own and control’ the S 1/2 of the 1ST. E. 1/4 of the N W. 1/4 of section 27, township 28 N, range 2 E., of the Indian Meridian, in Kay county, Oírla., and that said premises are located and situated immediately north of, and contiguous to, the premises owned and occupied by the plaintiff; that the city of Newkirk, Okla. T., is a city of the first class, organized and existing under and by virtue of the laws 'of the territory of Oklahoma, and that the land described and owned by defendants is situated within less than one-half a mile from Academy addition to said city of New-kirk; that the plaintiff is at this time, and was prior to the filing of his original petition, the owner of the lots described in his amended petition, which lots are located in the Academy addition to said city of Newkirk.</p> <p>Defendants further admit that a creek, called Spring creek, runs through the premises of the plaintiff and defendants, as set out in plaintiff’s amended (petition, and that defendants have erected, maintain, occupy, and operate, a slaughterhouse on the premises owned and controlled by them, and that said defendants kill and butcher on said premises, and in the slaughterhouse, beeves, hogs, etc. The defendants further adroit that they are engaged in the retail butcher business in the city of Newkirk, and do a large and -extensive business and since the filing of the mandate set forth in their first defense, all of their animals killed for their butcher business are slaughtered on their premises above described. The defendants further allege that they erected their slaughterhouse, and were using the same as such, slaughtering animals for their butcher trade, some two months prior to the time the plaintiff purchased the tract of land aforesaid adjoining the premises of the defendants on. the south, and more than two months prior to the time the plaintiff commenced to occupy said land; that said slaughterhouse was erected, operated, and maintained by the defendants on said premises long prior to the platting of the aforesaid lots and blocks known as College or Academy addition to the city -of Newkirk, and long prior to the time the plaintiff purchased said lots in the Academy addition to the city of Newkirk. The defendants further allege that they have made valuable and lasting improvements on the land occupied by them for slaughterhouse purposes long prior to the time that the Academy addition was platted into lots and blocks, and long prior to the time that the plaintiff purchased said lots in said addition. Defendants further allége that since the dissolution of the injunction herein, they have placad upon' said slaughterhouse grounds other valuable and lasting improvements, and placed the same there prior to the time of the filing of plaintiff’s amended petition.</p> <p>The defendants further allege that the statute under which this suit is brought, to wit, article 11, c. 15, St. 1893 (Wilson’s Rev. & Ann. St. 1903, §§ 624-, 626), was repealed by section 4, c. % p. 107, Sess. Laws 1903, that said statute is in conflict with the power to regulate and prevent nuisances given to cities of the first class, and that said statute, to wit, article 11, c. 15, St. 1893 (Wilson’s Rev. & Ano. St. 1903, §§ 624, 626), is void, under the fourteenth amendment to the Constitution of the United States.</p> <p>On tlie 24th day of November, A. D. 1906, the court granted a temporary injunction on said amended petition, as prayed for, and on the 12th day of April, A. D. 1907, the same was made perpetual. An appeal was duly prosecuted to the Supreme Court of the territory of Oklahoma, and, by virtue of the provisions of the Enabling Act and Schedule to the Constitution, is now properly before this court for review.</p> <p>in error, contended the amendment sh«uld not have been allowed since it pleaded a statutory nuisance, whereas the original petition alleged common-law grounds: 1 Encyc. PI. & Pr. 556, Note 2; Snyder v. Harper, 24 W. Ya. 206, On question of res judicata: Kaufman v. Schneider, Ill. App. 262; Austin v. Walicer (Iowa) 16 N. W. 65. On the question of police power: Yates v. Milwauhee, 10 Wall. 505; Du Bois v. Budlong, 15 App. Pr. N. Y. 445.</p> <p>The amendment presented no new cause of action, and its allowance was clearly within the discretion of the court: 1 Enc. Pi. & Pr. 524, 565. On question of res judicata: Herring v. Wiggins, 7 Olda. 312. On question of repeal by implication: Carpenter v. Russell, 13 Okla. 277. On scope of the police power: The Slaughter House Cases, 16 Wall. 36; City of N. O. v. Stafford, 27 La. Ann. 417; Stone v. Mississippi (U. S.) 25 L. Ed. 1079.</p>

<p>1. PLEADING — Judgment on the Pleadings. A motion lor a judgi ment on the pleadings is a common and permissible practice, but, in a case where filed by the plaintiff to a defendant’s answer, it should :be granted only when such answer, allowing every reasonable intendment in its favor, does not deny or state a defense to the material allegations of the petition.</p> <p>2. CONTRACTS — Legality of Object — Breach of Trust — Railroad Bonus. In an action by a railroad construction company to recover on a note given it as a bonus to induce it to build the line of road it was engaged in constructing for a railroad companj- to a certain town, it is error to render judgment on the pleadings, where the answer alleges that the construction company was the agent of the railroad company for the construction of the road, and was employed to construct the same on a cer1 tain survey, but for the consideration of the bonus sued on moving to it it agreed to and did construct the same off said survey and to said town.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pottawatomie County; James B. Tolbert, Judge. Action by the State, on the relation of Virgil B. Biggers, County Attorney, and others, for writ of mandamus to Frank P. Stearns, mayor of city of Shawnee, and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Pottawatomie County; B. F. Burwell, Judge. </p> <p>Action between tbe Grand Lodge Ancient Order of United Workmen of Oklahoma and Gertrnde Hobbie and Mabel Hobbie, by next friend. From the judgment, the Grand Lodge brings erroT.</p>

Error from the United States Court for the Western District of the Indian Territory. Action by J. N. Baker against Ellis H. Hammett and others, copartners, trading as the Coweta Realty Company. Judgment for defendants, and plaintiff brings error.

Error from District Court, Osage County; L. M. -Poe, Judge. Action by Orial A. Hunt, by bis next friend, Mary A. Hunt, against Hazel May Crabbe Hunt and others. Judgment for defendants, and plaintiff brings error. cited: Wilhite v. Wilhite, 41 Kan. 154; Penn v. Bowman et al., 102 Ill. 523; Powell v. Powell, 18 Kan. 371; McDeed v. McDeed, 67 Ill. 545; Conale v. People, 177 Ill. 219; Loveren v. Loveren (Cal.) 35 Pae. 87; Bordeaux v. Bordeaux (Mont.) 75 Pac. 359. cited: 13 Enc.

Petition oí T. R. Palmer for writ of certiorari to W. R. Harris. This is an original. action for a writ of certiorari to the district court of Muskogee county, and grows out of an election contest filed in that court by plaintiff against defendant.

<p> Appeal from the Corporation Commission of the State of Oklahoma. </p> <p>Proceedings by the State and others against the Atchison, Topeka & Santa Fe Railway Company for the erection and maintenance of a side track and flag station. From an order grant ing the petition, the railroad company appeals.</p> <p>■ On the 29th day of May, A. D. 1908, a petition was filed with the Corporation Commission, asking that the appellant be required to erect and maintain a side tract or switch and flag station at the town of Civit, in the county of Garvin, and for such othei and further order as the commission should deem necessary and just. The appellant, after due notice, answered. Witnesses on the part of appellees testified, in effect, that Civit is a town iy<¿ miles from Pauls Yalley, about midway between Iroquois and Boudinot; that both of said towns are inaccessible; that as to Iroquois it is in a mountanous or hilly country, and, on account of washouts, same cannot be reached in any reasonable degree by a conveyance; that it has no loading track, just a small passing track, and there are no houses or stores at said place; that such is the condition at Boudinot, with the exception that in addition to the passing track there is a section house, there being no loading facilities at either place except a stock pen at Boudinot, to which there are no tracks laid; that Civit is about 2% miles south of Boudinot and 3% miles north of Iroquois; that the town of Civit consists of a cotton gin, a general store, post office, drug store, a vacant store building, six residences, a schoolhouse, in which is maintained a public school, the buildings all being small frame structures, with the exception of the store building, which is two stories high made of cement blocks, the upper story being used as a residence; that there are seven families in the town of Civit, and the total population is about 40 persons: that the town-site consists of 10 acres, but the greater portion of it is still covered with a growth of small trees, and has never been completely cleared; that during the past two years there have been ginned at Civit between 410 and 430 bales of cotton; that Civit is more accessible than either Iroquois or Boudinot, being located on the country road between Wynnewood and Byars; that, if a flag station was established and maintained there, business would be developed for the railroad at said point; that sand could be shipped profitably from that place to Pauls Valley, there being a good supply of sand of a high quality easily accessible to said place, and a demand for it at Pauls Valley; that the cotton seed product is hauled by dirt road to Wynnewood, and that cattle are driven to Wayne from that section of the country for shipment that otherwise would be shipped from Civit; that at Iroquois and Boudinot the hills and canon are on one side and the creek on the other, and from the creek it overflows, and neither place is desirable to establish a village or places for residences; that the roads are being constructed to Civit, and not to Boudinot or Iroquois; that the railroad has been in operation five or six years, and there never has been any disposition among the .people to build up a town either at Boudinot or Iroquois; that Civit is located in a section of country between Pauls Valley and Byars that is thickly populated, and where roads are opened up from the standpoint of population and accessibility to the public, there being no other place between Pauls Valley and Byars that compares with Civit.</p> <p>In addition thereto, J. M. Lee, the chief engineer for the Corporation Commission, testified that he had examined appellant’s line between Pauls Valley'and Byars, and that is was reasonably practicable to Sestablish and maintain a flag station at Civit, and stated the facts on which he based his judgment. He testified as an expert of over 30 years’ experience as an engineer. The testimony of the witnesses on the part of the appellant on the main points at issue was contradictory to that on the part of the appellees.</p> <p>On the lfth day of August, A. D. 1908, the commission entered its order in said cause, a portion of which is in words and figures as follows:</p> <p>“* * * The commission finds from the evidence that about six years ago the defendant built this line of road from Pauls Valley to Shawnee, and that it established a station at the towns of Iroquois and Boudinot, and that Iroquois is about four or five miles from Pauls Valley, and that Boudinot is about the same distance from Byars. The evidence further showed that these switches and stations had been established for the period above mentioned and that no towns or depots have been established during all this time; that the same had been used very little, if- any, by the shipping public; that Iroquois is located, near the Washita river and is a place from the evidence that will never'be inhabited by people so as to make a town; and that it is in a very inaccessible place to reach by country roads. The evidence further showed that Civit was something near one-half way between Boudinot and Iroquois, and favorably located from a standpoint of convenience to the people and the making of a town. There is now located at said point a cotton gin and several families, and by the establishment of shipping facilities at this place the commission is of the opinion that the same will become an active shipping center for that community, and that Boudinot and Iroquois would probably never be used by the public for shipping purposes except in a very limited way. The defendant contends that it should not be required to establish shipping facilities at Civit because of the maximum grade of this road and of a curve. The evidence shows that Civit is located on a five-tenths of 1 per cent, grade, which, in the opinion of the commission, is not an excessive grade for the establishment of switching facilities and depot purposes, and that the curve ■ is only a slight curve, and would in no way greatly impair the use of that location for a switch track apd other shipping facilities. It is therefore ordered by the commission that the defendant, the Atchison, Topeka & Santa Fe Eáilway Company, build and operate a switch track at the town of Civit, and that it stop its passenger trains at Civit for the purpose of transacting such business as is usually done by passenger trains, and that the town of Civit be made a prepay station for the shipment of freight, and that freight shall be received and loaded at said station in the -usual manner as is done at all stations where an agent is not maintained; that said passenger trains shall stop on and after the 15th- day of September, 1908, and that said switch shall be established and ready for use by October 1, 1908; and that the same shall be maintained until further ordered by the commission.”</p> <p>An appeal was duly prosecuted from said order, and it is now properly before this court for review; the appellant making the following assignments of error: (1) That the commission had no jurisdiction; (2) that the order is unreasonable and unjust, and imposes an unnecessary burden upon the appellant; (3) that the commission erred in its opinion that Iroquois is loc’ated near the Washita river’ and is a place which, from the evidence will never be inhabited by the people so as to make a town, and being inaccessible to reach by country roads, because such finding is largely speculative, in so far as it deals with the future, and in direct conflict with the evidence, in so far as it deals with the present; (4) that the commission erred in finding that Boudinot and Iroquois, being located in the Washita valley, are unfit places for residences, etc., because the same is not sustained by the evidence; (5) that the commission erred in requiring appellant to move and maintain its depots where good public roads are located, thereby holding that it was the duty of the appellant to remove its depot to the public roads rather than for the public to look after the construction of roads to its depots; (6) that the commission erred in holding that Civit is not on an excessive grade for the establishment of switching and depot facilities, and that the curve is only a slight curve same being in conflict with the evidence; (7) that the commission erred in directing appellant to build and operate a switch track at the town of Civit, said order being unreasonable* unnecessary, and practically impossible of performance, and imposes an unnecessary burden on appellant; (8) that the commission erred in ordering appellant to stop its passenger trains at Civit for the purpose of transacting such business as is usually done by passenger trains, said order being unreasonable, unnecessary, and practically impossible of performance and imposes an unnecessary burden on appellant; (9) that the commission erred in ordering that Civit be made a prepay station for the shipment of freight, etc.; (10) that the commission erred in providing' that passenger trains should stop at said station on and after the 15th day of September, 1908, and that a switch be established and ready for use by October 1, 1908, said order being unreasonable and unjust.</p> <p>cited: Railroad Commas v. Railway Co. (Texas) 38 S. W. 751; St. L. & I. M. Ry. Co. v. Adcock (Ark.) IS S. W. 874; Ohio & M. Ry. Co. v. People, ISO Ill. S00; State v. Yazoo & M. V. R. Co. (Miss.) 40 South. "265; State ex reí. v. Ry. Co. (Minn.) 79 N. W. 510; Ry. Co. v. State, 193 TJ. S. 53; Raihuay Co. v. Dusian, 14S U. S. 49S.</p> <p>cited: .1., T. & S. F. Ry. Co. v. D. & N. R. Co., 110 U. S. 667; Comm. v. R. R. Co., 103 Mass. S54; Railroad Comm’s v. R. R. Co., 63 Me. 270; State v. R. R. Co., 17 Neb. 647; M. & St. L. R. Co. v. State ex rel., 193 IÍ. S. 5S.</p>

.Proceedings by the State and others against the Gulf, Colorado & Santa Fe Railway Company and the Atchison, Topeka & Santa Fe Railway Company to require additional train service. From an order granting the petition, the railway companies bring error.

<p> Error from District Court, ICay County; Bayard T Hairier, Judge: </p> <p>■ Action between Horse Chief Eagle and Mary P King. From the judgment, King brings error.</p>

<p> Error from District Court, Comanche County; F. E. Gillette, Judge. </p> <p>Action by the Union Investment Company against T. P. Mahaney. Judgment for plaintiff. Defendant brings error.</p>

Error from Probate Courts Kay Countyj B. L. PLowsley, Judge. Action by H. A. Ingels against T, M. Hartshorne. Judgment for plaintiff. Defendant brings error.

Error from District Court, Custer County; F. E. Gillette, Judge. Application by G. H. Erickson for a liquor license. J. H. Albright and others filed remonstrance.” From a judgment affirming the judgment -granting a license, Albright and others bring error. On the 12th day of November, A. D. 1906, G-. H. Erickson filed his application in the effiee of the clerk of Custer county, Okla.

Error from District Court, Muskogee County; John H. King. Judge. Proceedings by I. N. Ury for writ of mandamus against W. P. Miller and J. E. Wyand. From a decree granting the writ, defendants bring error.

<p> Error from District Gourt, Comanche County; F. E. Gillette, Judge. </p> <p>Action by the City National Bank of Lawton against Frank McMaster. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Blaine County; M. C. Garber, Judge. Action by Yasey Bros, against T. L. Capps. Judgment for plaintiffs, and defendant brought error to the Supreme Court of the territory of Oklahoma, whence the cause is transferred to the Supreme Court of the state of Oklahoma.

Error from District Court, Woodward County; J. L. Pancoast, Judge. Action, by J. W. Martin and another against R. E. Howe and another. Judgment for plaintiffs, and defendants bring error. Chas. B. Alexander and Hoover & Swindall, for plaintiffs in error, contended, inter alia, thaf to constitute actionable fraud the false representation must be made by a party knowing them to be false/ citing: Southern Develop.

<p>CONTRACTS — Validity—Public Policy — Location of Post Office. A contract providing for the payment for services and expenses incurred in procuring the establishment of a post office in a city in and upon a certain block therein, the payments thereunder to continue so long as said post office shall be there maintained not to exceed ten years, is contrary to public policy and void.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Appeal and Error — Amendment—Discretion of Court. The imposition of terms upon granting leave to amend is a matter resting in the sound discretion of the trial court, and its action in the exercise of this discretion will not be disturbed on appeal except where a clear showing of abuse is made.</p> <p>2. SAME — Failure to Comply With Order — Dismissal. Where, on the trial of a cause, a jury is impaneled, and the court sustains an objection to the introduction of evidence on the ground that plaintiff’s petition does not state facts sufficient to constitute a cause of action, and plaintiff is given leave to amend upon the payment of the costs accrued at that term, and avails himself of such leave by filing an amended pleading, the judgment of the court thereafter rendered, dismissing said cause for failure or refusal to pay such costs, will not be disturbed in this court on the claim of plaintiff that the ruling of the court upon the sufficiency of the pleading was erroneous.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Review—Conflicting Evidence. Where controverted questions of fact are submitted to a jury, and the evidence reasonably tends to support the verdict, the appellate court will not disturb the verdict.</p> <p>2. BROKERS — Right to Commissions — Termination of Contract. Where the contract provides that certain land shall be left for sale with B. for two weeks from the date thereof and thereafter until - days’ written notice of the withdrawal of said land from his hands, and that should defendant, who signed said contract, through any other agency sell said land, B. should receive a certain commission on said sale, and where B., acting thereunder, failed to sell the same within said two weeks, and at the expiration thereof verbally acquiesced with defendant that his time to make a sale thereof had expired by virtue of the terms of said contract, and at the same time stated to him that there was no use to destroy said contract which' defendant wanted to do, and neither B. nor defendant acted further under said contract, held, in a suit by B. against defendant for commissions earned on a subsequent sale of said land by him, that such constituted on the part of B. a waiver of said written notice of withdrawal, thereby terminating said contract at the expiration of said two weeks.</p> <p>(Syllabus by the Court.)</p>

<p>1. CARRIERS — Carriage of Passengers — Freight Trains. Where a railroad company carries passengers for hire on its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains; the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.</p> <p>2. SAME — Negligence. Plaintiff took passage for hire on defendant’s freight train from S. to L., and took a seat in the “caboose.” Just before reaching 'C., an intermediate station, the engine stopped at a water tank about 150 yards from the depot, when plaintiff, thinking it had reached the station, stepped out on the rear platform to talk to a friend seated on the car steps. Finding it had not reached the station, plaintiff, when the train started again, stepped back in the “caboose” on the way to his seat, and turned and was standing with his hands against the casings of the rear door when the train suddenly stopped at the depot with such jar that he was knocked off his feet and injured. Held, that from these facts no inference of negligence on the part of the railroad company could be legitimately drawn, and that a motion to direct a verdict for defendant should have been sustained.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County; Stillwell H. Bussell, Judge. </p> <p>Action between H. C. McMurtry and Ed Byrd and others. From the Judgment, McMurtry brings error.</p>

Error from District Court, Oklahoma. County; B. F. Bunvell, J udge. Action by Kathaline Garrison, administratrix, ana Harvey D. Garrison, administrator, of the estate of G. W. Garrison, deceased, against A. F. Latham and others, in which action William T. Hales intervened. Judgment for defendants, and intervener and plaintiffs bring error.

<p>Error from District Gourt, Pottawatomie County; B. F. Burwell, Judge.</p> <p>Action by Louise Eeed against John Clinton and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by Johann Garbow against William McCracken and wife. Judgment for defendants, and plaintiff brings error.

Error from District Gourt, Kay County. Action by John Eeed against Eoy Hill before a justice.- On appeal an amendment to the complaint, showing that the action was prosecuted by George Eeed, next friend of plaintiff, was allowed. Judgment for plaintiff, and defendant brings error. This action was originally instituted in the justice court of IV.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by Edward L. Hodgins against Maud E. Hodgins. Judgment for plaintiff, and defendant brings error. cited the following authorities: Lockhart v. Wills (N. Mex.) 54 Pac. 336; Hall v. Rockwell (Colo.) 6 Pac. 927; Groome v. Almsiead (Calif.) 35 Pac. 1021; 3 Cyc. 221, 327; Brown v. Donnelly (Oída.) 91 Pac. 859; Couch v. Orie (Oída.) 41 Pac. 368; 22 Cyc. 763, 776, and cases cited; 7 Enc.

Error from the United States Court of Appeals of the Indian Territory, Northern District, Sitting at Vinita. Action by the International Bank & Trust Company against Samuel A. Farmer, administrator, and William Goddard. Judgment for defendants, and plaintiff brings error. cited: Muller v. Ehlers, 91 U. S. 249; St. L. I. M. & S. By. Co. v. Holman, 45 Ark. 102.

<p> Error from District Court, Kingfisher County; C. F. Irwin, Judge. </p> <p>Action by George W. McNaught against Alfred L. Birch. Judgment for plaintiff, and defendant brings error.</p> <p>cited: 23 A- & E. Enc. Law 906, 909, 921; Butler v. Baker, 17 R. I. 582; Wilson v. Mason, 158 111. 304; Mallott v. Downing, 39 Or. 218; Front v. Chisholme, 47 N. Y. Supp. 376; Hoyden v. Grill, 35 Mo. App. 647; Alvard v. Cook, 174 Mass. 120; Hegenmyer v. Magics, 37 Minn. 6.</p>

'Error from District Court, Oklahoma County; B. F. Burwell. Judge. Petition by Eva Holt against Frank R. Holt. Judgment for plaintiff; and defendant brings error. The opinion contains copious references to brief of counsel. On disqualification of referee: People v. Edmonds, 15 Barb. 529; McF addin v. Preston, 54 Tex. 403.

Error from Prolate Court, Kay County; R. L. Howsley, Judge. Action by the Barteldes Seed Company against the Border Queen Mill & Elevator Company and others. Judgment for defendants, and plaintiff brings error.

Error from Pottawatomie County Court; E.'D. Beasor, Judge. Action by T. J. Engle against W. H. Tennison before a justice. From an order dismissing an appeal in the district court, defendant brings error.

<p>EVIDENCE — Laws of Other State — Presumptions. Where the question arises as to what laws are in force in another state or territory, and the same are neither pleaded nor proved, it will be presumed that such laws are the same as those oí our domicile.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Grant County; M. C. Garber, Judge.</p> <p>Action by W. J. Hicks against the Town of Jefferson and others. Decree for plaintiff, and defendants bring error.</p> <p>Gass v. Dix (Wash.) 44 Pae. 113; Mo. Pac. R. Go. v. Keys (Kan.) 40 Pac. 275; Jones v. 8t. L. R. Go., 84 Mo. 151; Munkres v. K. G. R. Go., 72 Mo. 514; Gray v. McWilliams, 98 Cal. 157; McDaniels v. Cummings, 83 Cal. 515; 30 A. & E. Ene. L. 324, and cases cited.</p> <p>Cole v. M., K. & T. Ry. Go., 20 Olda. 227; Crawford v. Rambo, 44 Ohio St. 279; Byrne v. Minneapolis & St. Louis Ry. Go., 38 Minn. 212; Bur-well v. Hobson, 12 Grat. (Ya.) 322; Barden v. City of Portage, 79 Wis. 126; 13 A. & E. Ene. L. (2d Ed.) 686.</p>

Error from District Court, Kay Countyj Bayard T. Hainer, ! Judge. Action by tbe Farmers’ State Bank of Arkansas City, Kan. against Benjamin 0. Stephenson and others. Judgment for defendants, and plaintiff brought error to the Supreme Court of the territory of Oklahoma, whence the cause was transferred to the Supreme Court of the State of Oklahoma.

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

<p> Error from District Court, Craig County; T. L. Brown, Judge. </p> <p>Action by the Pioneer Telephone & Telegraph Company against the Incorporated Town of Chelsea. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; Bayard T. Ilainer, Judge. Mortgage foreclosure by the Citizens’ State Bank of Mediapolis and others against Seymour S. Price and wife. From the judgment Price and wife bring error. On the 22d day of December, 1905, a motion was filed by the Citizens’ State Bank of Mediapolis to confirm the sale of certain real estate, to wit, lots 9, 10, 11, and 12, block 5, -in Military addition to the city of Oklahoma City, Oklahoma county, Okla.

<p> Error from District Court, Logan County j A. H. Houston, Judge. </p> <p>Action„by Mary M. Wallace and another against the Court of Honor. Judgment for plaintiffs, and , defendant brings error. Plaintiffs move to dismiss the petition in error.</p>

Error from District Court, Logan County; John H. Burford, Judge. ■ . • . Action by Charles E. Castanien and others against the Choctaw, Oklahoma & Western Railroad Company. Judgment for plaintiffs, from which both parties brought error to the Supreme Court of the territory of Oklahoma, whence the causé is transferred to the Supreme Court of the state of Oklahoma.

Error from Prolate Court, Logan County; J. G. Strang, Judge. Action by James B. Elder against J. D. Kernodle. Judgment for plaintiff, and defendant brought error to the Supreme Court of the territory.

Error from District Gourt, Kioiua County; F. E. Gillette, Judge. Action by Wiley P. Seawell against Felix J. Kyndak and others. Judgment for plaintiff, and defendants brought error to the Supreme Court of the territory of Oklahoma, whence the cause is transferred to the Supreme Court of the state of Oklahoma.

<p> Error from District Court, Comanche Countyj F. E. Gillette, Judge. </p> <p>Action by the Citizens’ State Bank of Lawton against the 'Chattanooga State Bank of Chattanooga and others. Judgment for defendants, and plaintiff brings error.</p> <p>On the 27th day of November, A. D. 1903, the Citizens’~State Bank of Lawton, as plaintiff, commenced its action in the probate court of Comanche county, Okla. T., against the Chattanooga State bank of Chattanooga, as defendant, alleging in its petition: That about the 5th day of September; A. D. 1903, one John Masoner (who was attempted to be made a party defendant in that action, but upon whom no service was had) made, executed, and delivered to the plaintiff at Lawton, Comanche county, his certain = promissory note of said date in the sum of $500. That he secured the same by a chattel mortgage on 50 head of coming three year old steers, branded “K” on left hip; 34 head of -mixed cattle, branded “K H” and “J O P” on left side; 11 head of dry cows, branded “T F F” on left side; and 43 coming three year old steers, branded “0” on left side — ■ which property was then in Comanche county and owned-by and in the possession of said John Masoner. That said mortgage was duly filed.in the office of the register of deeds of said county on said date, and on the 23d day of November, A. D. 1903, the defendant wrongfully took said property from the possession of said John Masoner and still detains the same from the plaintiff without its consent, and to its damage in the sum of $500. Then follows a prayer for judgment against the defendant for the recovery» of said cattle and for damages, etc. The defendant, the Chattanooga- State Bank, answered and claimed said property by virtue of a certain subsequent mortgage, in which was set up a different description of the cattle. Said case was tried in the probate court, each party claiming under its respective mortgage, and judgment was rendered in favor of the plaintiff. Said cause was duly appealed to the district court of said count]», and on the 26th day of September, 1906, same was tried in the district court and judgment rendered in favor of the plaintiff. Afterwards, in due time, a motion for a new trial was filed, and the court sustained the same and set aside the verdict therein, to which action of the court the plaintiff duly excepted and prosecuted its appeal therefrom to the Supreme Court of the territory of Oklahoma, and, by virtue of the provisions of the Enabling Act and the Schedule to the Constitution, same is now properly before this court for determination.</p> <p>Demand in replevin unnecessary where defendant contests case on its 'merits: Shinn on Replevin, p. 407; George v. Hewlett, 70 Miss. 1; Pealce v. Goulan, 43' Iowa, 207; Heagney v. J. I. Case Co. (Neb.) 96 N. W. 175; Cal. Fruit Ass’n v. Stalling, 141 Cal. 713; Baper et al. v. Harrison (Kan.) 15 Pac. 219; Kuykendall v. Fisher (W. Va.) 56 S. E. 48; Byrne v. Byrne, 89 Wis. 659; Bunoe v. McMahon, 6 Wyom. 24; Guthrie v. Olson, 44 Minn. 404; Seattle Nat. Bank v. Meerwaldt, 8 Wash. 630; Webster v. Brunswick-Balke Co., 37 Ela. 433; Brietenwischer v. Clough, 111 Mich. 6.</p> <p>—On necessity of demand: Shinn on Replevin, pp. 259, 260; Brown v. Holmes, 13 Kan. 366; Smith v. Woodleof, 21 Kan. 517; Discretion of court in granting new trial — burden upon party alleging abuse of discretion: City of Sedan v. Church, 29 Kan. 190; Ford v. Bearson, 37 Kan. 554; State v. hockey, 88 Pac. 528; Pencóte v. Sharp, 57 Pac. 645.</p>

Frror from District Court, Oklahoma County; B. F. Burwell, ' Judge. Action by J. B. Wheeler against C. G. Jones. Judgment for plaintiff. On the death of plaintiff, James H. Wheeler and others, his executors, revive the action, and Jones brings error. cited: St. Olda. 1893, §§ 1334, 1335; Belloc v. Rogers, 9 Cal. 128; Payne v. Butler, 18 Cal. 303; Fallon v. Butler, 21 Cal. 31; White v. Moore, 21 Cal. 44. cited: O'Keefe v. Bank, 49 Kan. 347; Carnahan v. Lloyd, 4 Kan.

Error from Prolate Court, Pawnee County; G. T. Graves, Judge. Action by W. E. Diem and others against J. M. Burress and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Pawnee Countyj Bayard T. Hainer, Judge. Forcible detainer by G. W. Parsons against T. M. Poison. Judgment for plaintiff, and defendant brought error to the Supreme Court of Oklahoma Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma. On question of jurisdiction: 13 A. & E. Enc. Law (2d Ed.) 768; Kassing v. Keohane, 4 Ill.

Error from District Court, Pittsburg County; P. B. Cole, Judge. Mandamus by tbe State, on the relation of R. C. Lee, against George M. Chaney, as Mayor, and others, as Councilmen, of the City of McAlester, and others. Judgment for defendants, and relator brings error.

<p>APPEAL AND ERROR — Reversal—Procedure Below — Amendment of Pleadings., Where a cause is reversed and remanded hy the Supreme Court, with directions to the trial court to "take such other and further proceedings in the matter as shall accord with said Supreme Court opinion,” it stands in the court below ■ the same as if no trial had 'been had. Pleadings could be amended, supplementary pleadings filed, and new issues formed under proper restrictions. If the parties could amend their pleadings in such a way as to conform to the views of the Supreme Court in relation to the allegation of facts necessary to entitle them to the relief sought, they ought not to be deprived of that right merely because they and the trial court had previously been in error as to the theory of the case. The court below in justice to the parties should permit such amendments upon such terms' as to costs as it thought just, and it was reversible error to refuse to do so.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Washita County, James B. Tolbert, Judge. Action by William H. Yarborough against Myrtle M. Spangler and others. Judgment for plaintiff.

Appeal from the United States Court for the Western District of the Indian Territory; William B. Liawrence, Judge. Suit By Leonard G. Beck and others against Lizzie Jackson and others. Judgment for defendants, and plaintiffs appeal.

Appeal from the United States Court for the Western District of the Indian Territory; William R. Lawrence, Judge. Action by J. T. Lipscomb against D. R. Allen and others. Judgment for defendants, and plaintiff appeals.

Error from District Court, Caddo County; Frank M. Bailey, Judge. Action by M. N. Gish and others, co-partners, doing business under the name of Gish, Brook & Co., against the Springfield. Eire and Marine Insurance Company. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss the petition in error. Time in which to make and serve ease-made — order of extension — insufficiency of record: Devauli v. Merchants’ 'Exc.

<p>Error from District Court, Caddo County; Frank M. Bailey, r Judge.</p> <p>Action by Gish, Brook & Co. against the Insurance Company of North America. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washita County; M. C. Garber, Judge. Action by S. II. Copeland against the St. Louis & San Erancisco Railroad Company. Judgment for plaintiff, and defendant brings error. Negligence, question for jury: Wallace v. Lake-Shore & M. S. By. Co. (Mich.) 95 N. W. 750; Buppel v. Allegheny, etc., By. Co. (Penn. 46 Am. St. Rep. 666; 4 Cye. 437, note; Hutch. Carriers (3rd Ed.) 419; Wilson’s Rev. & Ann. St. § 706.

<p>1. COURTS-Supreme Court — Jurisdiction—Appeals From Territorial Courts. Section 18 of the enabling act (Act June 16, 1906, c. 3335, 34 Stat. 277), confers upon the Supreme Court of the state ■ just such jurisdiction to review judgments rendered and entered '• in actions ih the United States courts of the Indian Territory prior to the admission of the state from which, no appeal .had been taken ás the United States Court of Appeals for the Indian Territory could have taken if it had not been dissolved by the advent of statehood,</p> <p>2. SAME — Time of Taking Appeals. A judgment in an action in a United States court of the Indian Territory, rendered and entered less than six months before the admission of the state, may be reviewed by this court on appeal taken within six months after the entry of judgment.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from, the United States Court for the Western District of the Indian Territory at Tulsa; William R. Lawrence, Judge. </p> <p>Action by J. A. Friend and others against Nora B. Roth and others. Judgment for defendants, and plaintiffs appeal.</p>

Appeal from, the United States Court for the Western District of the Indian Territory at Tulsaj William B. Lawrence, Judge. ' Action by J. A. Friend and others against Nora B. Roth and Others. Judgment for defendants, and plaintiffs appeal.

Error from the United States Court for the Western District of the Indian Territory at Muskogee; William B. Lawrence, Judge. Action by Sarah McCombs and others against Kobert Kelley and others. Judgment for plaintiffs. Defendants bring error. This action was originally brought by defendants in error against plaintiffs in error Robert Kelley and Frederick Severs in the United States Court for the Western District of the Indian Territory at Muskogee.

<p>BRIDGE'S — Construction and Repairs — Powers of Commissioners— Statutes. Even where two acts are not in express terms repugnant, yet, if the later act covers the whole su'bjfect of the first and embraces new provisions plainly showing that it w^s intended as a substitute for the first-act, it will operate as a repeal of that act.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Grady County; Frank M. Bailey, Judge. </p> <p>Action by A. Davidson against Horace Humphreys. 'Judgment for plaintiff. Defendant brings error.</p> <p>citing: Amis v. Goober, 25 Ark. 15; Bailway Go. v. Hall, 44 Ark. 375; Bailway Go. v. Bichter, 48 Ark. 349.</p>

F. Irwin, Judge. Action by W. R. Haines against S. A. Horton and others. Judgment for. plaintiff,,■ and defendant Horton brings error. On requisites of summons: George v. Hatton, 2 Kan. 333; Weaver v. Gardner, 14 Kan. 348; Beverly v. Fairchild (Kan.) 27 Pac. 985. On sufficiency of petition: Short >u. Nooner, 16 Kan. 227.

Error from District Court, Kay County; Bayard T. Ilaine/r, Judge. Action by C. De Roberts against the Town of Cross. Judgment' for defendant, and plaintiff brings error. On the 10th day óf February, A. D. 1906, the plaintiff in error as plaintiff began his action in the district court of Kay-county, Oída.

<p> Error from District Court, Greer County; C. F. Irwin, Judge. </p> <p>Action by Van Arsdale & Osborne, a partnership composed of W. 0. Van Arsdale and II. L. Osborne, against the Olustee School District No. 35 of Greer County. Judgment for defendant, and plaintiff brings error.</p> <p>citing: Johnson v. Board of Corners, 7 Olda. 686; Rollins v. Board, 90 Eed. 575, 33 C. C. A. 181; Western Town Lot Co. v. Lane (S. D.) 65 N. W. 17; Heffieman v. Pennington Co. (S. D.) 52 N. W. 851; Board v. Btandley (Colo.) 49 Pac. 23; People v. Board (Colo.) 52 Pac. 748; Wilder v. Board, 41 Eed. 512.</p>

<p>Error from District Court, Washita County j M. C. Carter, Judge.</p> <p>Action by McCollum & Baker against the St. Louis & San Francisco Eailroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Muskogee County. </p> <p>Action by Ollie Divine against Bent T. Harmon and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Case-Made — Settlement — Power of Judge to Extend Time — Special Judge. A special judge or judge pro tempore, while possessing the power to sign and settle a case-made after he has ceased to sit as judge, has no power to extend the time for its settlement and signing, and, where he attempts to do so, his act is a nullity.</p> <p>2. APPEAL AND ERROR — Dismissal—Failure to File Brief in Time. A case will 'be dismissed in this court on motion where counsel for plaintiffs in error file no briefs within the time, and no stipulation in reference thereto is made, and no extension is either asked or allowed when such motion is properly served and filed asking such dismissal.</p> <p>(Syllabus by the Court.)</p>

<p>1. PROCESS — Collateral Attack — Service by Publication — Defective Notice. In obtaining service by publication, if there is a total failure to state in the notice any material matter retro'red by Wilson’s Rev. & Ann. St. Okla. 1903, sec. 4278, the service is void, , and sub.iect to collateral attack: but where there is not such an entire omission of a material matter from the notice, and it is inferentially or insufficiently set forth therein, the service is merely voidable, and can be successfully attacked only on a direct proceeding.</p> <p>2. JUDGMENT — Collateral Attack — Affidavit for Publication — Presumption in Favor of Proceedings. In a collateral attack upon a judgment of foreclosure, where the record discloses 'that an affidavit for publication for the non-resident defendant assailing said judgment was made, and, because destroyed, was not produced, but which was approved by the court, which upon it rendered said decree of foreclosure as all presumptions are in favor of the validity of the orders and proceedings of a court of general jurisdiction, said notice will be presumed to be sufficient under the statute until the contrary is shown.</p> <p>3. • LIS PENDENS — Prosecution of Action — Service of Summons. Where, upon petition in foreclosure filed on December 29, 1897, summons issued, and was returned “Not found” as against a nonresident junior mortgagee, and first publication of notice to him as such was made March 17, 1898, who, without actual knowledge of the pendency of said suit, on March 9, 1898, assigned said mortgage to an innocent purchaser for value, held that the lis pendens establish by the filing of said petition (Wilson’s Rev. & Ann. St. Okla. 1903, sec. 4285) was rendered of no avail against said assignee, who took said mortgage unaffected by said subsequent decree of foreclosure against his said assignor. Held, further, that on reassignment thereof on April 18, 1903, in good faith and for value by said assignee to said assignor, he took the same likewise unaffected.</p> <p>4. LIMITATION OF ACTIONS — Computation of Period — Accrual- of Cause of Action. Where a note, payable two years after date, with interest payable semi-annually, secured by mortgage providing, “but if said sum or sums, or any part thereof, or any interest thereon, is not paid when the same is due, and if the taxes and assessments of every nature, which are or may be assessed and levied against said premises, or any part thereof, are not paid when the same are by law made due and payable. then the whole of said sum or sums and interest thereon, shall and by these presents become due and payable,” is in default for nonpayment of interest and taxes on the third Monday in January 1898, held that a cause of action upon such default does not accrue within the meaning- of the statute of limitation (Wilson's Rev. & Ann. St. Okla. 1903, sec. 4216), so as to start the running of said statute.</p> <p>5. MORTGAGES — Payment—Resale to Mortgagor. Where mortgaged premises are sold under a prior mortgage, and bought in by the mortgagee at foreclosure sale, who sold again to the mortgagor, the rights of the assignee of a junior mortgagee not a party to said foreclosure suit are not thereby impaired; so far from it, said resale and purchase by the mortgagor will operate as a payment of said prior mortgage. Held, also, that a purchaser of said lands from said mortgagor took the same discharged of said prior mortgage, subject to the right of foreclosure of said assignee or of his assignor to whom said mortgage had been reassigned.</p> <p>(Syllabus by the Court.)</p>