Volume 25 — Oklahoma Reports

<p>Motion to retax costs.</p>

<p>1. STATUTES — Implied Repeal. Where a section, expressly amend-atory to another section of a statute, purports to' set out in full all that it is intended to contain, any matter which was in the original section, but not in the amendatory section, is repealed by the omission.</p> <p>2. CONSTITUTIONAL LAW — Obligation of Contracts — Tax Ferret —Contract with County — Nature of Agency. A contract, made under authority of Act May 29, 1908, p. 729, c. 81, art. 9 (Sess. Laws 1907-08), by a board of 'county commissioners with an individual, to assist the proper officers of the county in the discovery of property not listed for taxation, and to receive as full compensation 25 per cent, of all taxes recovered under said act,' does not confer upon the agent a power, coupled with an interest in the subject of the contract, which makes the contract of agency irrevocable.</p> <p>o. MANDAMUS — Nature of Act Commanded — Repeal of Statutory Authority — Tax Ferrets. Where an application was made to this court by an agent, under contract with a board of county commissioners to assist the proper officers of the county in the discovery of property not listed for taxation from 1897 to 1907, inclusive, entered into pursuant to Act May 29, 1908 (Sess. Laws 1907-1908, p. 729, c. 81, art. 9), to mandamus the county treasurer to give certain taxpayers of the county, in whose name it was proposed to list and assess certain property alleged to hav» been discovered by said agent, the 10 days’ notice in writing required by said act, fixing the time and place when and where objections thereto might be made, and where, pending a hearing, said act was repealed by the Act March 8. 1909 (Sess. Laws 1909, p. 626, c. 38, art. 3), to the extent of revoking the authority of said board of county commissioners to employ said agent to assist said officers in the discovery of such pro'perty not listed and assessed for taxation prior to November 16. 1907, and also revoking his agency under said contract, held, that all the power of the county treasurer to do and perform the acts sought to be required of him in the business was destroyed by that part of said act repealed, and the mandamus was denied.</p> <p>4. MANDAMUS — Discretion of Court — Useless Acts. Mandamus is not a writ of right, but one resting within the sound judicial discretion of the court, and will not be granted to compel the performance of a useless act. ' ■</p> <p>(Syllabus by the Court.)</p>

<p> Error from, District Court, Canadian County; C. F. Irwin. Judge. </p> <p>Action by George W. Bellamy against the Washita Valley Telephone Company and others. From a judgment for defendants, plaintiff brings error.</p> <p>Citing: Frick v. Fritz, 124 Iowa, 428; Lamon v. Niles, 13 Pac. 417; Hembree v. Dawson. 23 Pac. 264.</p> <p>Citing: Wilson’s Rev. & Ann. St., secs. 683-585; Frick v. Fritz¡ supra; Beach on Receivers, sec. 773; McAnrow v. Martin (Ill.) 56 N. E. 168; Howe v. Jones (Iowa) 23 N. W. 376-378; Verplanck v. Insurance Co., 2 Paige (N. Y.) 438; Moyers v. Coiner, 22 Fla. 422; Myres v. Frankenthal, 55 Ill. App. 390; Railway Co. v. Wear, 135 Mo. 230'.</p>

<p>Error from District Court, Logan County.</p> <p>Action by Mary Schoner against E. Jefferson Allen and Jerome McCarthy, partners as “Allen & McCarthy.” Judgment for defendants, and plaintiff brings error.</p>

<p>1. PRINCIPAL AND AGENT — Sales by Agent — Undisclosed Principal — Rights of Parties. If the purchaser of coal does not know, and has not good reason to know, that he Is dealing with the agent of the owner, he is justified in treating the agent as owner, and in a suit by the .owner for the purchase price he must take the contract of sale as he finds it, subject to such rights as the purchaser might avail himself of against the agent, assuming him to be the owner.</p> <p>2. SAME. If the purchaser of coal does not know, and has not good reason to know, that he is dealing with the agent of the owner, he is justified in treating the agent as owner, and in a suit by the owner for the purchase price is entitled to credit thereon for the amount of loss by said purchaser sustained on the sale of a suit of clothes agreed by the agent to be by him received in part payment therefor, but which was not delivered on account of said agent’s death.</p> <p>(Syllabus by the Court.)</p>

<p>PLEADING — Neoessity of Reply. Where, prior to the admission of the state into the Union, in an action of replevin by L. C. & C. A. Van Ness, partners as L. C. Van Ness & Co., to recover certain personal property in which they claimed a special ownership by virtue of certain chattel mortgages securing certain promissory notes, there was for answer a general unverified denial and allegations in effect that plaintiffs were a partnership with its principal place of business at E., in Oklahoma Territory, and were transacting business under a fictitious name in violation of Wilson’s Rev. & Ann. St. 1903, sections 3901, 3903, and no reply was filed, and defendant on the trial objected to the introduction of any evidence because of no reply, held, that a reply was necessary; that, none being filed, the material allegations of the new matter set forth in the answer uncontroverted by a reply should have been taken as true and as constituting a complete defense to the action; and for that reason the judgment in favor of plaintiffs was contrary to law.</p> <p>(’Syllabus by the Court.)</p>

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by Rosanna Cooper against the St. Paul Fire & Marine Insurance Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Williams v. Albany Ins. Co., 19 Mich. 451; Equitable Ins. Co. v. Harvey (Tenn.) 40 S. W. 1092; Houston v. Insurance Co.. (Neb.) 89 N. W. 635; Insurance Co. v. Coleman (Dak.) 43 N. W. 693; Insurance Co. v. Garbacz (Neb.) 67 N. -W. 864; Insurance Co. v. Bachelder, 49 N. W. 217; Curtain v. Insurance Co. (Cal.) 21 Pac. 370; McElroy v. Insurance Co., 65 N. Y. 888; 16 A. & E. Ene. L. 861.</p> <p>Citing: Smith v. Insurance Co. (Dak.) 23 N. W. 355; Schoenman v. Insurance Oo. (Neb.) 20 N. W. 284; Insurance Go. v. Lansing (Neb.) 20 N. W. 22; Joliff v. Insurance Go., 39 Wis. Ill; Garlock v. Insurance Go. 138 Ill. 215; 19 Cye. 800; Insurance Go. v. Shader, 93 N. W. 972; Insurance Go. v. Eaddin, 120 IT. S. 506; Insurance Go. v. Gheiv (Ind. App.) 38 N. E. 417; Insurance Go. v. Liggett, 16 Ind. App. 598; Insurance Go. v. Bowen, 40 Mich. 149; Insurance Go. v. Moreland (Ky.). 56 S. W. 653; Insurance Go. v. Beppond (Tex.) 81 S. W. 1012.</p>

<p> Error from District Court, Oklahoma County; B. F. Burwell, Judge. </p> <p>Action by the State National Bank of Memphis, Tennessee, against W. W. Bierce. Judgment for plaintiff, and defendant brings error.</p>

<p>1.' DIVORCE — -grounds—Extreme Cruelty — Mere incompatibility. In an action for divorce, where the cause of action is predicated upon extreme cruelty for conduct other than physical violence, either actiial or threatened, it is not sufficient that there should simply btj danger that such conduct, operating through the mental faculties, may produce injury or bodily hurt to the physical system, but it must be shown that such in fact is the effect, or at leasj( that such effect is to be reasonably apprehended as imminent a» a result thereof. And to entitle a party to the remedy of divorcement on the ground of extreme cruelty, It is not enough that the grounds be the result of incompatibility of tastes or temperament or estrangement produced by differences of opinion and conduct growing out of the administration of household affairs, as these must be endured along with the other minor misfortunes of life. They are the things which under the law parties who marry take into consideration on entering matrimony, and divorce will not be granted on their account. The remedy of absolute divorce is an extraordinary remedy for evils which are unavoidable and unendurable, and which cannot be relieved by any proper and reasonable exertion of the party seeking the aid of the courts.</p> <p>1. DIVORCE — Grounds—Duty to Bear and Forbeari Husband and wife are bound to exercise greater efforts for removing misapprehension, allaying quarrels, smoothing the road to concord, and effecting reconciliation than are people in other relations of life. The mai’riage status is not a mere contract status, In which each of the parties may be justified in demanding the strict letter of the bond. It is a status wherein the law operates upon the weakness, as well as the strength, of human nature, and it will not be dissolved except for grave and substantial causes.</p> <p>(Syllabus by the Court.)</p>

Lawrence, Judge. Action by Robert J. Manuel, guardian of Lizzie Manuel, against J. P. Paulter and the Oklahoma Land Company. Decree for plaintiff and defendant Paulter appeals, and plaintiff brings cross-appeal against the Oklahoma Land Company.

Error from District Court, Oklahoma County. Action by J. B. Sherwood against John Sumner and others. Judgment for plaintiff in the Probate Court and appeal to the District Court dismissed, and defendants bring error.

<p>APPEAL AND ERROR — Case-Made—Settlement—Time—Expiration. Where the extension of time granted by the district court or judge thereof has once expired, said court or judge has no power then to extend the time for serving a case-made, and a case-made served, signed, and settled after the expiration of time is void.</p> <p>(Syllabus by the Court.)</p>

<p>INTEREST — Usury—Regulation—Rate—Statutes. The 8 per cent, rate of interest prescribed by the proviso to Act Cong. February 18, 1901, c. 379, sec. 8, 31 Stat. 795, entitled “An act to put in force in the Indian Territory certain provisions of the laws of Arkansas relating to corporations, and to make said provisions applicable to said territory,” is restricted to banks or trust companies organized under the laws of Arkansas or any other state and transacting business in the Indian Territory as foreign corporations by virtue of said section, and does not apply to a bank organized as a domestic corporation in the Indian Territory under certain laws of Arkansas extended in force in said territory by virtue of said act.</p> <p>(a) A contract or note between a banking company organized as a domestic corporation under the laws in force in the Indian Territory and an individual, providing for a rate of interest greater than 10 per cent., was void as to both the principal and interest.</p> <p>Hayes. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — State Appellate Courts — Criminal Jurisdiction. Upon the creation of the Criminal Court of Appeals, all criminal jurisdiction theretofore vested in this court ceased and vested in that court, together with the authority to express an opinion on matters referred pursuant to Wilson’s Eev. & Ann. St. Okla. 1903, sections 5588, 5589, should said sections by that court he held constitutional.</p>

<p>Motion to set aside order of dismissal and reinstate case.</p>

<p>APPEAL AND ERROR — Record—Statement as to Evidence — Review. Where the case-made upon appeal does not contain a statement that it contains all the evidence presented upon 'the trial, no error assigned which requires an examination of the evidence „ can be reviewed by this court.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Record—Statement as to Evidence — Review. Where the case-made upon appeal does not contain a statement that it contains all the evidence presented upon the trial, no error assigned which requires an examination of the evidence can be reviewed by this court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court. Lincoln County: -John IT. Burford, Judge. </p> <p>Action bjr the Chandler Cotton Oil. Company against the Ft. Smith & Western Bailroad Companj'’. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by Harley & Willis, against P. Stanley. Judgment for defendant, and plaintiffs bring error.</p> <p>Citing: 6 A. & E. Enc. Law (2d Ed.) 455, and cases cited; Savely v. Revinal, 2 L. R. A. (N. S.) 96; Tufts v. Griffin,, 107 N. C. 47; Burnley v. Tufts, 66 Miss. 48; Owensby v. Swan, 59 S. W. 378; Cole v. Hines, 81 Md. 476 ; First Cong. Church, v. Furniture Co., 15 Colo. App. 46; Phillips v. Ilollenberg Music Co., 82 Ark. 9; Marion Mfg. Co. v. Buchanan, 118 Tenn. 238.</p> <p>Citing: Arthur v. Blackman (C. G.) 63 Fed. 536; Bishop v. Minderhout. 128 Ala. 162; Randle v. Stone, 77 Ga. 501; Swallow v. Emery, 111 Mass. 355; Cobb v. Tufts, 2 Willson, Civ. Cas. C't. App., sec. 154; La Valley v. Ravenna, 6 Am. & Eng. Ann. Cas. 684; Morris v. Cohn, 55 Ark. 401.</p>

Error from, the United States Court for the Northern District of the Indian 'Territory; L. F. Parker, Judge. Action by William Taylor against the Insurance Company of North America. Judgment for defendant, and plaintiff brings error. Citing: Poor v. Hudson Ins. Co., 2 Fed. 432; Mohr & Mohr v. Ohio Ins.

Error from District Court, Comanche County; J. T. Johnson, Trial Judge. Action by J. D. Cotney and others against the Queen Insurance Company of America. From an order dismissing an appeal from the probate court y.on appeal from ’a judgment for plaintiffs, defendant brings error. Citing: Railway Co. v. Hurst (Kan.) 35 Pac. 211; Haas v. Lees, 18 Kan. 449; Siruber v. Rohlefs (Kan.) 12 Pac. 830; Patrie v. Colter, 10 Okla. 257; Swoop v. Smith, 1 Okla. 283.

<p> Error from Pottawatomie County Court; E. D. Beasor, Judge. </p> <p>Action between the Et. Smith & Western Railroad Company and the State .National Bank of Shawnee. Prom the judgment the Railroad Company brings error.</p>

Error from District Court, Pottawatomie County; A. H. Huston, Judge. Action between the Cunningham Commission Company and the Eorer Mill & Elevator Company. From a judgment for the latter, the former brings error.

<p> Error from District Court, Nolle County; Bayard T. Hainer, Judge. </p> <p>. Action by Charles E. Dennis against May. Alcorn and others. Judgment for plaintiff, and defendants bring error.</p> <p>Citing: Cague v. Bank, 86 Ill. 371; McGeagh v. Nordberg, 53 Minn. 234; 12 Enc. PI. & Pr. 271; 24 Cyc. 172; Ileiuiti v. Week, 51 Wis. 368; Han-cheti v. Ives, 49 N. E. 207; Hopkins v. Landfond, 2 N. W. 39; Fano ell v. Murray (Cal.) 38 Pac. 199; Chessman v. Hale, 79 Pac. 255; Biggs v. Lloyd, 11 Pac. 831; Hart v. Cascade Timber Co. (Wash.) 81 Pac. 738; Alworth v. Railway Co. (R. I.) 60 Atl. 884; Corley v. McElmell (N. Y.) 43 N. E. 628.</p> <p>Citing: Hand v. Kennedy, 83 N. Y. 149; Landhan v. Heaver (Md.) 20 L. R. A. 759; 24 Cyc. 171; Thompson v. King. 173 Mass. 439; 12 Enc. Pi. ■& Pr. 272; Haley v. Bank (Nev.) 12 L. R. A. 819; Hutchinson v. Ward, 99 N. Y. 708; State v. Packenham (Wash.) 82 Pac. 597; Town v. Leake (S. C.) 50 S. E. 541; West v. Bank (Mo.) 85 S. W. 601; Zilke v. Woodley (Wash.) 78 Pac. 299.</p>

<p>• Error from Olcmulgee County Court; J. L. Newhouse, Judge.</p> <p>Action by Douglass Perryman against Kookey Brown. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Seminole County; A. T. West, Judge. </p> <p>Action by Henry M. Tate against Phoebe Gaines. Judgment for defendant, and plaintiff brings error.</p> <p>Citing: Devins v. Dox, 34 N. Y. 307; Wheeler v. Reynolds, 66 N. Y. 232; Ohio Life Ins. Co. v. Merchants’ Ins. & Trust Co., 11 Humph. 1, 53 Am. Dec. 742; Story, Eq. Jurisp., see 298; Johnson v. Evans, 8 Gill ’(Md.) 155; Hunt v. Turner, 9 Tex. 385; Bernard v. Taylor, 23 Ore. 416; Brooks v. Martin, 2 Wall. 70; Blair v. Gills, 17 How. '232.</p> <p>Citing: Lindsay v. Rotiaken, 32 Ark. 618; U. 8. Bank v. Parsons, 2 Pet. 627; Creek Treaty approved February 26, 1901, sec. 7.</p>

Error from District Court, Garfield County; M. G. Garber, Judge. Action by Eritz Wehrman against the Chicago, Rock Island &' Pacific Railvray Company. Judgment for plaintiff, and defendant brings error. This action was commenced bjr defendant in error, hereinafter called plaintiff, in the district’court of Garfield county, on April 20, 1905, before the admission of the state, against the Chicago, Rock Island & Pacific Railway Company, plaintiff in error, defendant below.

<p>BILLS AND NOTES — Action on Note — Consideration—Burden of Proof. Where the maker of a promissory note seeks to avoid the same upon the ground that it was executed without consideration, or for a consideration that was void under a statute, the burden of proof is upon him to show that the note was without consideration, or that it was given for a consideration prohibited by the statute.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County: B. F. Burwell, Judge. Action by M. V.'Clogston against L. C. Stone. There was a judgment dismissing an appeal by defendant to the district court from an adverse judgment rendered by- the probate court, and he brings error.

Error from District Court, Woods County; Jno. L. Pancoast, Judge. Unlawful detainer by D. H. Powers against E. C. Myers. From an order of the district court dismissing the cause on appeal from a judgment of the probate court in favor of plaintiff, he brings error. Citing: Hall v. Jaclc-son, 77 Iowa, 201: Malloy v. Malloy, 40 TST. W. 285; Ish v. McRae; 48, Ark. 413; 21 A. & E. Ene. L. (2d Ed.) 9.24, note 1. No brief reached the reporter.

<p>APPEAL AND ERROR — Defect of Parties — Lack of Jurisdiction. The absence of a party to a joint judgment who will necessarily be affected by a reversal thereof defeats the jurisdiction of the appellate court, and prevents a review of the judgment.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the State Publishing Company for writ of mandamus against Frank P. Stearns, Mayor, and others.</p>

JSrror from Distmct Court, Muslcogee County; John PL. King, Judge. Application of Laura /Argaubright for writ of prohibition against John G. Leiber;, Justice of the Peace in and for Harris Township, Muskogee County. From an order granting the writ, defendant brings error. No copies of briefs reached the reporter.

Error from‘District Court, Logan County; J. C. Strang, Special Judge. ■ Action by the State, tin the relation of Charles West, Attorney General, against the Journal Company and others. Application for injunction denied, and relator brings-error.

Error from District Court, Craig County; J. H..King, Special Judge. Action by J. A. Leforce and others against E. L. Haymes. From an order setting aside a judgment in favor of plaintiffs on ■special verdict and rendering judgment for defendant, plaintiffs bring error.

<p>1. APPEAL AND ERROR — Subsequent Appeal — Law of the Case. As a general rule, a question decided by the Supreme Court on appeal becomes the law of the case in all its stages’ and is not open for consideration on a second appeal.</p> <p>2. MORTGAGES — Redemption—Defenses—Fraudulent Conveyances. A conveyance by a mortgagor in fraud of creditors cannot be attacked or set up as a defense by the grantee of the purchaser at a void foreclosure sale in a proceeding by the grantee of the mortgagor and her assigns to redeem the premises after foreclosure decree is vacated, where such conveyance was made subject to the lien of the mortgage attempted to be foreclosed.</p> <p>3. MORTGAGES — Foreclosure—Persons Bound by Decree — Fraudulent Conveyances. A decree of foreclosure against a mortgagor, who, before the institution of the foreclosure proceeding, had conveyed his title to a third person, although it be in fraud of creditors, does not foreclose the rights of the grantee if such grantee is not made a party to the proceeding by valid service.</p> <p>4. APPEAL AND ERROR — Proceedings After Remand — Effect of Decision of Appellate Court. The conclusions of the. Supreme Court of the territory upon questions, arising upon appeal to that court from whose decision an appeal was_ taken to the Supreme Court of the United States, which was' dismissed because the decision of the Supreme Court of the. territory did not dispose of the merits of the case, are binding upon the trial court where the same questions arise in the subsequent proceedings in that court.</p> <p>5. APPEAL AND ERROR — Review of Instructions Unnecessary. "Where, on an issue of accounting, the court gives the jury instructions to control it in arriving at a general verdict and no general verdict is returned, but answers to special interrogatories propounded by the court are returned, and upon them and facts found by the court judgment is rendered, the appellate court will not review the instructions given to ascertain whether there was error therein when such instructions did not pertain to any of the special interrogatories propounded.</p> <p>6. APPEAL AND ERROR — Harmless Error — Accounting—Omission of Items. Although it appears from the statement of the trial judge on rendering judgment on an issue of accounting that plaintiff in error was charged with an item not properly chargeable to him, if it appears from the imcontroverted evidence of the plaintiff in error that there were other items properly chargeable to him omitted by the court which, if considered, would have increased the amount of the judgment rendered against him, the judgment of the trial court will not be disturbed.</p> <p>7. MORTGAGES — Redemption—Right of Owner of Equity — Sale of Premises. In a proceeding by the owner of the equity of redemption against a mortgagee in possession for an accounting and to redeem, where the value of the mortgaged premises is greatly in excess of the amount of the mortgage debt and the improvements placed on the premises by" the. mortgagee, and where the mortgagee has been in possession for 10 years, and the rents and profits have not decreased the amount of his claim, a decree fixing a time within which the owner of the right of redemption may redeem, and.if redemption is not made within that time, ordering a sale, is not error.</p> <p>8. CONSTITUTIONAL Law — Due Process of Law — Proceedings to Set Aside Foreclosure Decree. A motion to vacate and set aside a decree of foreclosure and sale thereunder was made by the owner of the equity of redemption upon whom no valid service was had in the foreclosure proceeding. The grantee of the' purchaser at the invalid foreclosure sale (who was the mortgagee). who was served with the notice of such motion, appeared, filed his answer thereto denying the grounds of the same, made himself a party to' the proceeding, filed his affidavit in opposition to the motion to vacate, and filed a motion to dismiss the motion to vacate upon the grounds it did not state facts sufficient to entitle the movant to relief, and actively conducted the defense against the motion, and appealed from the decree of the trial court vacating the foreclosure judgment to the .'Supreme Court of the United States. Held, a decree of the court which set aside the judgment of foreclosure and permitted the owner of the equity of redemption to appear, plead, , and set up her defense did not deny to such grantee due process of law.</p> <p>(Syllabus by the Court.)</p>

<p>PLEADING — Reply—Admissions—Judgment on Pleadings. Where an action is brought against a railroad company to recover damages for deterioration in the value of a shipment of live stock, alleged to be caused by the carrier negligently delaying and failing to forward said shipment with reasonable dispatch, and where the petition alleges that said live stock were shipped under a special contract with the carrier, but that the plaintiff could not set out a copy thereof in his petition for the reason that the same was in writing and in the possession of said carrier, and where the 'contract thus referred to is set up in the answer of the defendant and a copy thereof is attached to said answer as an exhibit, and where such contract contains a provision “that, as a condition precedent to a recovery for any damage or delay, loss or injury to live stock covered by this contract, the second party will give notice in writing of the claim therefor to some general officer, or the nearest station agent of the first party, or to the agent at destination, or some general officer of the delivering line, before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such written notification to be served within one day after the delivery of such stock at destination, to the end that such claim shall be fully and fairly investigated, and that a failure to comply with the provisions of this clause shall be a bar to the recovery of any and all such claims,” and where it is alleged in said answer that this provision of the contract has not been complied with, and where the plaintiff files a reply setting up only a general denial, such written contract is thereby admitted; and where neither the petition nor the reply contains an allegation of compliance with the conditions of the contract, and the said pleadings on the part of the plaintiff contain no allegation of waiver of such contract, and no facts are alleged therein tending to show an actual or substantial compliance with the said contract, and no excuse is offered or set up in the pleadings, for the noncompliance, said pleadings do not state a cause of action in favor of the plaintiff, and a motion for judgment for the defendant on the pleadings should be sustained, in the absence of any request for leave to amend by the plaintiff.</p> <p>(Syllabus by the Court.)</p>

<p>ANIMALS — Trespassing Animals — Actions for Damages — Waiver of Lien on Animals. Under that part of section 11, art. 1, c. 1, p. 43, Laws 1903, which provides: “The owner of any stock or domestic animal prohibited by law. from running at large, or prohibited by police regulation of any such district from running at large within the district at any of the times adopted by said vote, shall be liable for all damages done thereby while wrongfully remaining at large upon the public highway or upon the lands of another; which may be recovered by action of law; ■ or the party injured may at his option distrain the trespassing animals and retain the same in some safe place at the expense of the owner until damages are paid” — where a party elects to recover damages alleged to have been incurred by a violation of the foregoing provision, by action at law, he waives any lien. that might have attached to the stock doing the injury, if he had proceeded to distrain the trespassing animals, so far as a prior incumbrancer by chattel mortgage' was concerned.</p> <p>(Syllabus by the Court.)</p>

<p>GAME — Receiving for Transportation — Recovery of Statutory Penalty — Venue—“Offense.” The violation of section 4, c. 15, p. 168, Laws Okla. T. 1903, which provides: “It shall be unlawful for any railroad company, express company, or other common carrier, their officers, agents, or servants, to accept or receive within this territory any of the game mentioned in section 1 of this act for the purpose of carrying or transporting the same to any other place, either within or beyond the limits of this territory, or in any manner handle the same in any way. Any railroad company, express company, or other common carrier. or private individual who shall, through itself, himself, or its agent, servant or employee violate any of the provisions of this section, shall forfeit and pay to the territory of Oklahoma, for each violation thereof, the sum of five hundred dollars, to go to the common school fund of said county, together with all costs of suit, including a fee of one hundred dollars to go to the county attorney bringing said suit, to be recovered in a civil action to be instituted by the county attorney of the county wherein said suit is brought, which sum of five hundred dollars, and costs of said suit shall be collected upon execution as in civil cases” — constitutes an offense within the meaning of section 10 of the Organic Act (Act Cong. May 2, 1890, c. 182, 26 Stat. 87), and a civil action brought'for the recovery of the statutory penalty must be prosecuted and tried within the county where the violation is alleged to have occurred.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from District Court, Coal County; A. T. West, Judge. </p> <p>Action by Jesse Bross against the Coalgate Company and another. Judgment for plaintiff, and defendants appeal.</p> <p>Citing: Charman v. Latee Erie & TF. B. Co., 105 Fed. 449.</p>

Error from District Court, Oklahoma County; C. W. Clark, Judge. Action by W. N. Kaufman against Lawrence Boismier, as administrator, and others. Judgment for defendants, and plaintiff brings error. In case of inconsistent allegations, those most unfavorable to the pleader will be deemed to override the others: Board of Education v. Shaw, 15 Kan. 35; Bierer v. Fretz (Kan.) 4 Pac. 284; Wiley v. Keokuk, 6 Kan. 59.

<p>T. APPEAL AND ERROR — Review—Defects in Petition. Upon a petition in error to reverse a judgment by default, such defects in the petition as could have been taken advantage of before judgment by general demurrer may be reviewed.</p> <p>(a) If the judgment would have been arrested on motion if made because the petition did not state facts sufficient to constitute a cause of action, it may be reversed for the same reason upon a proceeding in error.</p> <p>2. PLEADING — Sufficiency—Judgment—Default. Where there la no averment of facts in the petition from which the conclusions of law are drawn, the same will have no force in a pleading; no issue being presented by such averment and no proof being admissible thereunder.</p> <p>2(a) Pacts not alleged, though proved, cannot form the basis of a judgment by default.</p> <p>2(b) The only allegations of the petition fixed by the default are those traversable, and issues cannot be joined On mere conclusions of law.</p> <p>3. APPEAL AND ERROR — Review—Record—Necessity of Exceptions. Where an error is apparent upon the judgment roll or record of the trial court, the same will be considered on review here, although no exception was taken thereto.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Coal County; A. T. West, Judge. </p> <p>Action by Vogel & Son against T. L. Braudrick. Judgment for defendant, and plaintiffs bring error.</p> <p>Citing: Union Compress Co. v. Nunally, 67 Ark. 284; Railway Co. v. Henson, 61 Ark. 302; McTombler v. Koelling (Ark.) 27 Jj. E. A. 502; Prince v. State Fair (Ala.) 28 L. E. A. 716; Bunnell v. Stern (N. Y.) 10 L. E. A. 480; Woodruff v. Painter (Pa.) 16 L. E. A-450.</p>

<p> Error from Bryan County Court. </p> <p>Action by E. Schlegel against J. B. Link. • Judgment for plaintiff before a justice was reversed on appeal, and plaintiff brings error.</p>

<p> Error from District Court, Craig County; T. L. Brown, Judge. </p> <p>Action by the Verdigris Eiver Land Company against Wade S. Stanfield and another. Judgment for defendants, and plaintiff brings error.</p> <p>Citing: Beale on Foreign Corporations, § 141; 2 Morawetz on Private Corporations, § 665; 19 Cye. 1306; U. S. Express Go. v. Lucas, 36 Ind. 361; Rockford Ins. Co. v. Rogers, 9 Colo. App. 121.</p>

<p> Error from, District Court, Pittsburg County; Preslie B. Cole. Judge. </p> <p>Action by Robert Kirk against the Bolen-Darnell Coal Company. Judgment for plaintiff. Defendant brings error.</p>

Error from District Court, Greer County; C. P. Irwin, Judge. Proceedings by the Colorado, Texas & Mexico Kailway Company and others against' C. Laeik and others. From a judgment, Laeik and others bring error. Citing: Denielt v. Leonard, 19 How. Prac. (N. Y.) 182; Rogers v. Hoskins. 14 Ga. 166; Colo. Fuel & Iron.Co. v. Railway Co. (Colo.) 66 Pac. 902; Ald-redge v. School Disi., 10 Olda. 694.

Error from Kioiva County Court•; J. W. Mansell, Judge,. Action between the Farmers’ & Merchants’ National Bank of Hobart and School District No. 56 and others. From the judgment, the bank brings error.

<p>1. STATUTES — Enactment—Referendum Petition — Sufficiency of Filing. When referendum petitions are offered, under the provisions of the act of the Legislature approved April 16, 1908 (Sess.'Laws 1907-1908, p. 440, c. 44), to the Secretary of ’¡State for filing, and are received by said officer for such purpose, and retained in his custody among the records of his office, the same will be deemed to have been filed although no indorsement of filing is made thereon by said officer, and although he failed to detach the sheets containing the signatures and affidavits, and cause them all to be attached to one or more printed copies of the measure in the presence of the Governor and of the person' offering the same for filing as directed by section 3 of said act.</p> <p>2. STATUTES — Enactment—Referendum Petition — Filing—Mandatory Provisions. The provisions of section 3 of said act requiring the Secretary of State, when any referendum petition shall be offered for filing, to detach, in the presence of the Governor and the person offering the same for filing, the sheets containing the signatures and affidavits, and cause them all to be attached to one or more printed copies of the measure proposed by the referendum petition, are mandatory as to the Secretary of State, but directory as to the public, and the failure of the Secretary of 'State to perform such duty does not invalidate the petition.</p> <p>3. STATUTES — Enactment—Referendum—Acts Subject — Constitutional Provisions. The provision of section 1, art. 5, of the Constitution, reserving to the people the “power at their own option to approve or reject at the polls any act of the Legislature" is modified and limited by sections 2, 3, 4. and 58 of said article, so as to apply only to acts which have not become operative.</p> <p>4. STATUTES — Time of Taking Effect — Initiative and Referendum —Constitutional Provisions — Construction. Section 58, art. 5, of the Constitution provides: “No act shall take effect until ninety days after the adjournment of the session at which it was passed except enactments for carrying into effect provisions relating to the initiative and referendum, or a general appropriation bill, unless, in case of emergency, to be expressed in the act, the Legislature, by a vote of two-thirds of all members elected to each house, so directs. * * *” Held, that the clause of exception reading: “Except enactments carrying into effect provisions relating to the initiative and referendum” — should be strictly construed, and includes only acts whose sole purpose is to carry into effect provisions relating to the initiative and referendum.</p> <p>5. MANDAMUS — Executive Officers — Ministerial Acts. A writ of mandamus may lawfully issue, from a court having jurisdiction, to compel an executive officer to perform a mere ministerial act, which does not call for the exercise of his judgment or discretion, but which the law gives him the power and imposes upon him the duty to do.</p> <p>S. MANDAMUS — Executive Officers — Exercise of Discretion. A writ of mandamus may issue to require an executive officer to act and decide even though his act and decision involve an exercise of his judgment and discretion, but it may not direct in what particular way he shall act or decide.</p> <p>7. MANDAMUS — Secretory of State — Filing Referendum Petition. The duties of the Secretary of State to file referendum petitions when presented to him, and to detach in the presence of the Governor and the person offering them for filing the signatures and affidavits, and cause them all to be attached to one or more-printed copies of the measure proposed by the referendum petition, are purely ministerial; and, upon refusal to perform same, he may be compelled to do so by mandamus.</p> <p>8. MANDAMUS — Secretary of State — Contest of Referendum Petition — Hearing. The power conferred and duty imposed upon the Secretary of State by section 6 of the act of the Legislature approved April 16, 1908 (Sess. Laws. 1907-1908, p. 444, c. 44), whenever a referendum petition shall have been filed with him, to proceed at once- to examine into its sufficiency, and, upon objections being filed to the sufficiency thereof, to hear evidence and argument in support of and in opposition to the petition, involve the exercise of judgment which cannot be controlled by mandamus; but if said officer, upon the referendum petitions having been filed with him and objections made thereto, refuses, upon request of the parties filing the petitions, to proceed to hear the protests and examine the sufficiency of the petitions, he may he compelled by mandamus to act and decide, hut can» not be directed in what particular way he shall decide.</p> <p>(Syllabus by the Court.)</p>

<p>JUDGMENT — Default—Vacation—Unavoidable Casualty or Misfortune. In a proceeding, under section 4760 (chapter 66, art. 22, sec. 562) Wilson’s Rev. & Ann. St. 1903. the petition must be duly verified by affidavit setting, forth the judgment or order, the grounds for vacating or modifying the same, and the defense or defenses to the action.</p> <p>The petitioner’s counsel, on the. 13th day of May, 1907, the day on which the term of court convened at which the action stood for trial, having written, to the clerk of the court at Hobart, Okla., from Wichita, Kan., requesting to be advised by return mail on what day such case had been assigned for trial, no reply being received, on the 15th or 16th of the same month petitioner received a letter from a party at Hobart advising him that the case would be reached the latter part of the next week. Petitioner immediately wrote such party to advise him by wire on what day the case was set for trial. On the 18th he received a telegram as follows: “Your case is set for the first.” Petitioner immediately took the letter to. his attorney in Wichita, and they construed it to mean that the ease was set for the 1st of June, and set about to get ready for the trial of the cause. About the 23d of May petitioner received a letter froih the same party at Hobart that judgment had been rendered on default on the 21st. On investigation, it was revealed that the telegram had been filed with the company at Hobart reading, “Your case is set for the 21st,” but that by mistake in transmission, when delivered, it was made to read as above stated. If the telegram had been correctly transmitted, petitioner and his counsel would have been present on the 21st and defended the action. Held, that the construction of the telegram as delivered was reasonable, and, the petitioner and his counsel having exercised ordinary diligence, that this amounted to' an unavoidable casualty or misfortune.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kiowa County; Lafe Knowles, Special Trial Judge. </p> <p>Action by Arthur E. Nettleton against Ciarles E. McLaughlin and others. Judgment for plaintiff, and defendants bring error.</p>

The Missouri, Kansas & Texas Eailway Company was , required by the Corporation Commission to stop certain trains at the town of Norfolk, and appeals from the order. Citing: Illinois Cent. R. Co. v. Illinois, 163 TJ. S. 142; Atlantic C. L. R. Co. v. Wharton, 207 TJ. S. 328; Miss. Railroad Com. v. Illinois Cent. R. Co., 203 TJ. S. 335; Cleveland, etc., R. Co. v. Illinois, 177 TJ. S. 514. Citing: State -v. Gladson, 57 Minn. 585, 166 TJ.

Error from District Court, Tuilsa County; J. H. Pitchford, -Judge. Action between Cleveland Grayson and Legus Perryman, guardian. From the judgment, Grayson brings error. Judgment was rendered in this action in the district court of Tulsa county on the 26th day of May, A. 1)? 1909.

Error from District Court, Johnston County; A. T. West, Judge. Action by James E. Jones against Balsley & Rogers and others. Judgment for defendants. Plaintiff brings error.

Appeal by Certified Record from, District Court, Oklahoma County; George W. Clark, Judge. Action by D. W. Walker against E. H. Burks. From an order of the District Court transferring the cause to the Superior Court of the county, defendant appeals.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by Ered B. Hannan against the Board of Education of the City of Lawton and others. Judgment for defendants, and plaintiff brings error. Citing: Mazet v. Pittsburg, 137 Pa. 548; Frones v. Erb, 54 Ark. 645; State v. Commissioners (Neb.) 12 N. W. 816; Chippewa Bridge Co. v. City of Durand (Wis.) 99 N. W. 603; Diamond v. City of Mampato (Minn.) 93 N. W. 912; Rickeison v. City of Milwaukee, 81 N. W. 864.

Error from District Court, Pontotoc County; Robert Rainey, Judge. Action by the Spaulding Manufacturing Company against W. II. Hill and others. Judgment for defendants, and plaintiff brings error. Dismissed. brings error.

<p> Error from District Court, Commche County; J. T. Johnson, Judge. </p> <p>Action .between the City of Lawton and Elizra J. Connor. From the judgment, the City brings error.</p>

<p> Appeal from District Court, Caddo County; Frank M. Bailey, Judge. </p> <p>Action by Lyon K. Bingham against Thomas F. Woodward. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: 13 A. & E. Ene. L. 1135, note 3, and 1138; Gilbert v. Anthony, 24 Am. Dec. 439; Williams v. Crutcher, 35 Am. Dec. 422; Phelps v. Case, 47 Am. Dec. 327; Railway Co. v. Lake, 32 N. E. 590; Lehman v. Broussard, 12 South. 504; Miller v. Stewart, 6 L. Ed. (U. S.) 189-195; ¿7. S. v. Am. Bond '& Trust Co., 89 Fed. 925-929.</p> <p>Citing: Waterman v. Frank, 21 Mo. 108; Sehnes v. Smith, 21 Mo. 526; Hall v. Wads-worth, 35 W. Va. 375; Jones v. Railway Co., 5 How. (Miss.) 407; Walker v. McDonnell, 43 Am. Dec. 476; Bowden v. Taylor, 81 6a. 199; Scanlin v. O’Brien, 21 Minn. 434; Shaw v. Toldas, 3 N. Y. 188; Garresson v. Reeder, 23 Iowa, 21; Bunn e-man v. Wagner, 16 Ore. 433; Jones v. Hays, 27 Tex. 1; Johnson v. Weatherwax, 9 Kan. 75; Wright v. Keys, 103 Pa. St. 567; Lightle v-. Beming, 15 Nev. ,389; Palmer v. Vance '& Melvin, 13 Cal. 553.</p>

<p>JUDGMENT — Conformity to Verdict, In a trial by jury the judgment must be supported by the verdict, and a judgment which goes ' beyond the verdict is erroneous.</p> <p>(Syllabus by the Court.)</p>

<p>BILLS AND NOTES — Fraud—Sufficiency of Evidence — Waiver of Fraud — Renewal of Notes. Where, in a suit on two promissory notes, the testimony disclosed that the same were executed in renewal of two other notes given by defendant to plaintiff in payment for his share of the purchase price of a worthless patent right, that defendant was induced to sign the original. notes by the agent of plaintiff and L., one of defendant’s co-partners, by representing to him that L., on whose honesty,good faith, and judgment defendant relied, thought it a good investment and would join his copartners in the purchase thereof and pay for and share therein equally with them, that after the deal was closed pursuant to a secret agreement between said agent and L., plaintiff returned to L., unpaid his note and check given in payment for his share of the purchase price of said patent right, held, that the evidence was sufficient to take the case to the jury on the ground of fraud; held, also, that the execution of the renewal notes before the discovery by defendant of the fraud did not constitute a waiver thereof.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the State, on the relation of Frederick King, for writ of prohibition to the Superior Court of Pottawatomie County and G. C. Abernathy, Judge.</p>

<p> Appeal from, Corporation Commission. </p> <p>Action by E. K. Haywood and the State against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and the railroad company appeals.</p>

Appeal from Corporation Commission. Action by the State of Oklahoma and the Snyder Ice & Storage Company against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings, error.

<p>APPEAL AND ERROR — Review—Sufficiency of Evidence. When the evidence reasonably tends to support the judgment of the trial court, the judgment will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Logan County;. S. II. Russell, Judge. </p> <p>Action between David Swank and others, and E. E. Tail-man. From the judgment, Swank and others bring error.</p>

Error from the United States Court for the Northern District of the Indian Territoryj Joseph A. Gill, Judge. Action between John Chouteau and others and Addie Chou-teau. From the judgment, John Chouteau and others bring error.

<p>1. GARNISHMENT — Answer—Waiver of Oath. Where the statute directs, as it does in this state, that the garnishee shall answer by affidavit, the plaintiff has a right to demand that the garnishee answer under oath, but, if he does not require it, an answer without oath is sufficient.</p> <p>2. GARNISHMENT — Notice of Issue — Judgment. When an answer under oath is waived, an unverified answer in garnishment to the effect that the garnishee “has in his possession the sum of $5.20 due the said defendant” and a notice in writing in due time to the effect that the plaintiff elects to take issue on such answer, as provided by section 4382, Wilson’s Rev. & Ann. St. Okla. 1903, state facts sufficient to join an issue of fact as between the plaintiff in the principal case and the garnishee, and it is error to render judgment without a trial on such pleadings against the garnishee.</p> <p>3. GARNISHMENT — Answer of Garnishee — Trial of Issue — Judgment in Principal Action. Under section 4385, Wilson’s Rev. & Ann. St. Okla. 190S, such a proceeding against a garnishee must be deemed to be an action by the plaintiff against the garnishee, and, when the garnishment is not in aid of an execution, no trial shall toe had of the garnishee action until the plaintiff shall have judgment in the principal' action.</p> <p>(Syllabus toy the Court.)</p>

<p>APPEAL AND ERROR — Dismissal — Failure to File Briefs. Where plaintiff in error fails to comply with the rules of this court requiring him to serve a brief on counsel for defendant in error within 40 days after filing his petition in error, and at the same time to file 15 copies of his brief with the clerk of the ■court, his case, on being reached for submission, will be dismissed.</p> <p>(Syllabus 'by the Court.)</p>

<p>ACTION — Statehood—Effect on Existing Rights. Under section 1 of the Schedule, which provides: “No existing rights, actions, suits, proceedings, contracts, or claims shall be affected toy the change, in the forms of government, but all shall continue as if no change in the forms of government had taken place. And all processes which may have been issued previous to the admission of the state into the Union under the authority of the territory of Oklahoma or under the authority of the laws in force in the Indian Territory, shall be as valid as if issued in the name of the state” — a copartnership doing 'business in the Indian Territory prior to statehood, where a promissory note was executed to it in due course, may after statehood bring suit on said note in the courts of the state without complying with section 3901, Wilson’s Bev. & Ann. St. Okla. 1903, which requires that “every partnership transacting business in this territory under a fictitious name, or designation not showing the names of the persons interested- as partners in such business, must' file with the clerk of the district court of the county or subdivision in which its principal place of business is stated a certificate, stating the names in full of all the members of such partnership, and their places of residence, and publish the same once a week for four successive weeks, in a newspaper published in the county, if there toe one, and if there be none in such county, then in a newspaper published in an adjoining county.”</p> <p>(Syllabus by the Court.)</p>

Proceedings before the Corporation Commission, to require the Missouri, Kansas & Texas. Railway Company to change the name of a station. From an order requiring the change, the railroad company appeals.

Error from District Court, Carter County j 8. H. RusseM, Judge,. Action by M. F. Winfrey against E. E. Benton and another. From a judgment granting a writ of mandamus, compelling a justice to grant a change of venue, plaintiff brings error.

<p>1. PARTITION — Personal Property of Co-Tenants — Jurisdiction of Equity. A court of equity has jurisdiction to decree partition of personal property where the same'is held by co-tenants.</p> <p>2. PARTITION — Personal Property — Right of Tenant to Partition. A co-tenant of personal property has a right to have the same partitioned, and the exercise of this right is not subject to the control of another co-tenant.</p> <p>3. TENANCY IN COMMON — Mortgage of Undivided Interest— Right of Co-Tenant to Attack Sale. In a case where a mortgagee forecloses a chattel mortgage given on an undivided in- . terest in certain personal property, the interest of a co-tenant as such only will not give him a standing to attack the validity of the sale of the property mortgaged on foreclosure of the said chattel mortgage, where such sale is acquiesced in by the mortgagor.</p> <p>('Syllabus by the Court.)</p>

Error from Seminole County Court; T. S. Cobb. Judge. Action by Armstrong, Byrd & Co. against George C. Crump. Judgment for defendant, and plaintiff brings error. On harmless error in admission of evidence of verbal warranty: Tufts v. Verhuyl 124 Mich 242; Little v. Van Syckle, 115 Mich. 480.

<p>!. MORTGAGES — Foreclosure — Sale — Neoesity of Appraisement. Where, on the foreclosure of a mortgage, the real estate covered thereby is ordered sold, and an order of sale is issued by the clerk, and the sale made within six months from the date of judgment without appraisement, the same is void, and error is not committed by the district court in setting aside the confirmation thereof, and recalling and canceling the sheriff’s deed issued thereunder.</p> <p>2. APPEAL AND ERROR — Rulings on Motion — Affirmance— Grounds Not Relied on. The ruling of a district court made upon a motion will not be set aside, where sufficient grounds appear in the record to sustain it, although not relied on by the party seeking relief.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROIR. — Failure to File Brief — Reversal. Where counsel for plaintiff in error in conformity with the rules of this ' court has prepared, served, and filed a brief, in which, with other contentions, it is- insisted that the judgment and verdict appealed from are not reasonably supported toy the evidence, and there is no .brief filed and no reason given for its absence on the part of defendant in error, this court is not required to search the record to find some theory upon which the judgment -below may be sustained, -but, where the brief filed appears reasonably to sustain the assignments of error, the -court mav reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>Williams, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Action by J. B. Outler and others against Theodore H. Ellis and others. Judgment for plaintiffs, and defendants bring error. Citing: Moses on Mandamus, p. 225; State v. King, 29 Kan. 607; State ex rel. v. Board, 22 Wis. 396.

<p>APPEAL AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error h-as completed his record and filed it in this -court, and has served and filed a brief in compliance with the rules of the court, and the defendant in error has neither filed a -brief nor offered any excuse for such failure, this court is not required to search the record to find some theory upon which the judgment below may -be sustained; but, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the case in accordance with the prayer of the petition of plaintiff in error.</p> <p>Williams, J., dissenting in part.</p> <p>(Syllaibus toy the Court.)</p>

<p>JUDGMENT — Entry—Expiration of Term. On October 26, 1906, a cause pending- in the district court of B. county, G„ judge presiding, was submitted to the court for judgment. On the next day said court adjourned until November 19, 1906, and on that day failed to meet and adjourn by operation of law, without .fixing by order of adjournment any time to reconvene. On November 20, 1906, in the same district, the district court of G-. county convened in regular term, B., judge presiding’, and continued in session until December 20th, on which day it adjourned until December 26, 1906. On December 21, 1906, G., as presiding judge of the district court of B. county, without order of the Supreme Court so to do, convened said court and .rendered and entered judgment in said cause. Held, that the term in which said cause was submitted expired by operation of law by the commencement of the term of the district court of G., county, and said judgment was coram non judice and void.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Marshall County; D. A. Richardson, J udge. Action by J. K. Hardin against K. K. Kirby. Judgment for defendant, and plaintiff brings error. Citing: Wood on Landlord and Tenant, p. 810, sec. 365; 1 Elliott on Evidence, sees. 571, 580; 17 Cyc., pp. 716, 570, 624, 601; 4 Wigmore on Evidence, sec. 2433; Thompson v. Libbq 34 Minn. 374; Naumberg. v. Young (N. J.) 43 Am.

<p>FRAUDS, STATUTE OF — Modification of Written Contract. Parties to a written agreement within the provisions of the statute of frauds may not iby subsequent oral agreement add to or alter one or more of its terms, and thus make a new contract resting partly in writing and partly in parol; and where they do, in a suit oh said new contract, testimony to establish such subsequent agreement is not admissible in evidence.</p> <p>('Syllabus by the 'Court.)</p>

Erren' from District Coxirt. Garvin County; R. N. McMillan, Judge. Action by T. H. Newbern against the German Alliance Insurance Company. Four other actions by the same plaintiff were consolidated with this action. Judgments for plaintiff, and defendants bring error. Citing: Brown v. Palatine fins. Co., 89 Tex. 500: Northwestern, etc., Ins. Go. v. Mize, 84 S. Y\T. 670; Western As-suramce Co. v. Altheimer Bros. (Ark.) 25 S. W. 1057; Imperial Fire Ins.

<p> Brror from District Court, Roger Mills County; G. A. Brown, i Judge. </p> <p>Action by T. J. Smith against the Oklahoma Farmer’s Mutual Indemnity Association. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from 'District Court, Marshall County; D. A. Richardson, • Judge. </p> <p>Action by H. L. Loftis against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Chicago, R. I. & P. Ry. Co. v. Woodward (Ind. Ter.) 35 S. W. 240; St. Louis é S. F. R. Co. v. Zachary, 53 S. W. 327; Chicago, R. I. '& P. Ry. Co. v. Huggins, 69 S. W. 846.</p> <p>— Citing: Cain v. GoldMt. Mining Co. (Mont.) 71 Pac. 1004 ; Slmendorf v. Golden (Wash.) 80 Pac. 264; Power v. Slocking, 68 Pac. 859; Columbia & P. S. R. Co. v. Hawthorne. 144 U. S. 202; Gulf, C. & 8. F. Ry. Co. v. Washington, 49 Fed. 347; Gulf,. C. & S. F. Ry. Co. v. Johnson, 54 Fed. 474; Gulf, C. & S. F. Ry. Co. v. Ellis, 54 Fed. 481; M., K. & T. Ry. Co. v. Shepherd, 20-Okla. 626.</p>

<p>1. CORPORATION COMMISSION — Orders of Commission — Presumption. The prima facie presumption oí the reasonablenéss, justness, and correctness of an order of the Corporation Commission, obtaining toy reason of section 22, art. 9, of the Constitution, applies only to the facts found toy the Commission, or established by evidence upon which the Commission failed to make a finding; and, where a fact material to the reasonableness, justness, and correctness of an order is lacking' in the finding- of facts made by the -Commission, and is not supplied by the evidence, the presumption obtaining by reason of said section does not apply, and on review in this court such order cannot be sustained.</p> <p>2. RAILROADS — Order of Corporation Commission — Installing Telegraph Service — -Reasonableness. An order of the Corporation ■Commission, requiring a railroad company to install telegraph service at one of its stations afor the sole purpose of bulletining its passenger trains, made without any findings of fact or evidence as to the extent of- the passenger traffic at said station, or the amount or approximate amount of the receipts therefrom, held, error, where it was shown that such additional service would require an increase in the expenses of the company for maintenance of the station of from 75 to 100 per cent.</p> <p>(Syllabus by the Court.)</p>

Error from, District Court, Muskogee County; John H. King, ■Judge. Action by O. D. Revell and others against Thos. P. Smith and others. Judgment for defendants, and plaintiffs bring error. On question of res judicata in suit on injunction bond: Oelñchs v. Williams, 15 Wall. 211; Sipe v. Holliday. 62 Ind. 4; Dowling v. Polack, 18 Cal. 625; Cummings v. ‘Mugge. 94 111. 186; Hanna v. McKenzie, 43 Am.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by the Board of Education of the City of 'Perry against Charles Jj. Wenner, Treasurer of the Board of Educa-iton of the City of Perry. Judgment 'for plaintiff, and defendant brings error. Citing: State v. Jefferson, 11 Kan. 71; State v. King, 29 Kan. 614; Dexter v. Cochran, 17 Kan. 447; Lindsay v. Comm’rs, 56 Kan. 630; Wilson’s Rev. & Ann.

Mandamus by the State, on the relation of the Baker-Reidt Mercantile Company and others, against the South McAlester-Eufaula Telephone Company. Decree for plaintiffs and defendant brings error. Citing: Muskogee Nal. Tel. Go. v. Hall (Ind. Ter.) 64 S. W. 600; City of Si. Louis v. Tel. Go. (Mo.) 10 S. W. 197; State ex rel. v. Tel. Go. (Mo.) 88 S. W. 41; Home Tel. & Tel. Go. v. City of Los Angeles, 211 U. S. 265; People ex rel. v. Tel. Go.

<p> Error from District Court, Hughes County j John Caruthers, Judge. </p> <p>Action by the Indian Land & Trust Company against Silas P. Taylor. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Failure to Fife Brief — Reversal. Where ■plaintiff in error has completed his record and filed it in this court, and has served and filed a brief in compliance with the rules of the court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and,- where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>2. APPEAL AND ERROR — 'Review.—Trial by Court — Insufficiency of Evidence. A judgment rendered by the court without the intervention of a jury, where there is no. evidence reasonably ■ tending to support same upon any theory suggested by the pleadings or the record, will be reversed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Pontotoc County Court; Joel Terrell, Judge. </p> <p>Action by the Fanners’ Bank of Roff against I. D. Nichols. Judgment for defendant, and plaintiff brings error.</p> <p>Citing: Spivallo v. Patton (Colo.) 99 Am. Dec. 358; Stale Nat. Bank v. Cason, 39 La. Ann. 865; Goodman v. Simonds, 20 How. (U. S.) 343; Jennings v. Todd, 118 Mo. 296.</p> <p>-Citing: Joyce on Defenses to Com. Paper, §• 314; Mendenhall v. Ulrich (Minn.) 101 N. W. 1057; Shufeldt v. Gillilan, 124 111. 460; French v. Wallaclc, 12 N. Y. 159; Johnson v. Banlc, 24 111. App. 352; Pope v. Hays, 19 Texas, 375; Heard v. Shedden, 113 Ga. 162.</p>

<p> Error from, Johnston County Courtj Nick Wolfe, Judge. </p> <p>Action by Charles E. Burden against Josiah T. Marshall. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Fitzgerald v. Beebe, 7 Ark. 305; Jordan v. Henderson, 37 Ark. 120; Bramble v. Beidler, 38 Ark. 200; Jansen v. Birayhorn, 59 Ark. 330.</p>

Error from District Court, Kingfisher County; C. F. Irwin, Judge. Action by the Minnie Harvester Company against C. L. Wagner. A demurrer to the answer was sustained, and defendant brings error. On the 8th day of February, 1905, the defendant in error, as plaintiff, commenced this action against the plaintiff in error as defendant, in the district court of Kingfisher county, territory of Oklahoma, declaring on a certain promissory note, as follows: “Kingfisher, O. T., 1903.

<p>1. INDIANS — Allotment of Land — Equity Jurisdiction of State Courts. Courts of equity have jurisdiction, after theCommission to the Five Civilized Tribes and the Secretary of the Interior have exercised their power and exhausted their jurisdiction, to determine whether by error of law, or through fraud or gross mistake, the Commission and the Secretary have failed to allot ■ land in the Creek Nation to the citizen who. under the law and treaties, was entitled to same, and h.ave assigned it to one who had an inferior right thereto. If the Commission and the Secretary have been induced to cause to be issued a patent to the wrong party by an erroneous view of the law, or by a gross or fraudulent mistake of the facts,the rightful claimant may cause such decision to be avoided, and charge the legal title to the lands in the hands of the allottee with his equitable right to it upon the ground that, upon the facts found, conceded, or established without dispute at the hearing before this special tribunal, its officers fell into error as to the law applicable to the case, which caused them to refuse to have issued the patent to him and give it to another, or through fraud or gross mistake it fell into a misapprehension of the facts proved before it, which had a like effect.</p> <p>2. SAME — Laches. The citizen being entitled by virtue of his improvements to take such land as his allotment or that of his minor children, although' having failed with knowledge of. the facts to exhaust all legal remedies .appellate, afforded him before the Commission to the Five Civilized Tribes and the Secretary of the Interior, having acted in good faith and there having been no unreasonable delay in invoking the powers of equity for redress, otherwise being entitled to relief, the same will be afforded him.</p> <p>(Syllabus by the Court.)</p>

Appeal from Corporation Commission. Action by the town of Witcher and others against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiffs, and defendant appeals.

<p>1. MASTER AND SERVANT — Master’s Notice of Defect of Appliance — Admissibility of Evidence. It is competent to show that the general superintendent ,oí a mine at or immediately after the installing or adjustment of a fan (and prior to the accident,) to be operated for the purpose of creating' a current to carry out of the mine smoke, fumes, foul air, and gases danger- ° ous to the lives of the employees, had notice of a defect in its adjustment.</p> <p>2. MASTER AND SEIRVANT — Assumption of Risks — Negligence of Master. While a person entering voluntarily into a contract of service assumes all the risks and hazards ordinarily incident to the employment and such as are liable to arise from defects which are patent and obvious to a person of his experience and understanding, he does not ordinarily assume risks arising out of negligence of the master.</p> <p>(a) ¡He assumes all the ordinary risks of the employment which are known to him and which would have been known with the exercise of ordinary care to a person of reasonable prudence'and diligence in the situation. It is his duty to exercise ordinary care and diligence, and observe and become cognizant of obvious defects in the machinery and working place, and he is chargeable with a knowledge of such risks and defects which would have been known to a person of reasonable prudence and care in his situation.</p> <p>3. MASTER AND SERVANT — Death of Servant — Negligence of Master. When it may be inferred by the jury that the defendant in the construction, installing, or operation of the fan had omitted that care in its adjustment and operation to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff.</p> <p>4. EVIDENCE — Res Gestae. Statements of plaintiff’s intestate’s co-employee made between 20 and 30 minutes after the accident, the fan having been readjusted and pul in operation so that the current would carry the smoke, fumes, foul air, and poisonous gases out of the mine, in response to the inquiry, “Where is your buddy,” with the reply to the defendant’s employee, “He is on ahead, dead, all right. My lower limbs are paralyzed. I told him not to fire the shot, but he said he would go ahead and fire it anyhow,” are not admissible in evidence as part of the res gestae.</p> <p>5. MASTER AND SERVANT — Death of Servant — Proximate Cause —Evidence. In an action against a mining company for the death of one of its employees acting in the capacity of a shot firer resulting from injuries caused by smoke, fumes, foul air, and poisonous gases, by a reversal of a fan on account of its not having been suitably adjusted with reasonably necessary appliances for the purpose for which it was installed, there being evidence tending to show that the omitted appliance or appliances were reasonably necessary in its operation for such purposes — held, that a verdict based on the assumption that the omission to suitably adjust such fan with such additional appliance was the proximate cause of the accident was justified by ■ the .facts and circumstances.</p> <p>(Syllabus by the Court.)</p>

<p>1. BILLS AND NOTES — Negotiability of Note — Stipulation for Attorney Fee in Mortgage. A note negotiable on its face does not become nonnegotiable on account of a stipulation in a mortgage securing the same providing for an'attorney’s fee in.the event of foreclosure. •</p> <p>2. ALTERATION OF INSTRUMENTS — Effect—Contracts in General. The material alteration of a wrtten contract intentionally made by a party entitled to any 'benefit under it or with his consent extinguishes all the executory obligations of the contract in his favor against all parties who do not consent to the act. Section 1141, Comp. Laws Okla. 1909.</p> <p>3. CHATTEL MORTGAGES — Security for Subsequent Note. A note having been executed on November 8, 1905, by M., due at a given time, to B., in the sum of'$550, secured by a chattel mortgage of that date, and later, on December 19, 1905, a note in the same amount by the same maker to the same -payee being executed in order that the later note may be secured by the former chattel mortgage., it mu-st appear that it was agreed by the parties thereto .at the time of the execution of said note of De-i cember 19th that it should take the place of that of November 8th, and be secured by said chattel mortgage.</p> <p>4. BILLS AND NOTES — Security for Pre-existing Debt — iRiights of Holder — Equities Between Original Parties. The holder of a ne-i gotiable' instrument as collateral security for a pre-existing indebtedness and an extension thereon retains the same unaffected by equities between the original parties of which It had no notice.</p> <p>(a) The mortgage securing same is also unaffected by such equities.</p> <p>5. JURY — Right to Jury Trial — Waiver, Plaintiff, and defendant in the trial court having each verbally moved for peremptory instructions, this did not constitute a waiver of the right to have a verdict returned by the jury. '</p> <p>(Syllabus by the Court.)</p>

Error from District Coxirt, Sequoyah County; J. H. Pitch,ford, Judge. Action by Charles L. Ross against Minerva Stewart. A demurrer to the petition was sustained, and plaintiff brings error. Citing: Leak v. Joslin, 20 Okla. 200; Broolcs v. Garner, 20 Okla. 236; Wallace v. Adams, 143 Fed. 720. Citing: Woods v. Carpenter, 101 U. S. 807; 3 Rallard on Race Property, pp. 700-706; Durango Land & Coal Co. ¶.

<p>1. STATE FINANCE — “Appropriation.” An “appropriation” in this state is an authoity of the Legislature, given at the proper time and in legal form to the proper officers, to apply a distinctly specified sum, from a designated fund out of the treasury in a given year, for a specified object or demand against the state.</p> <p>2. STATE FINANCE — Appropriation — Form. No arbitrary form of expression or particular words are required by the Constitution in making an appropriation, which may be made by implication when the language employed reasonably leads to the belief that such was the intention of the Legislature.</p> <p>3. STATE FINANCE — Appropriation—Compensation of Game and Fish Warden. Sections 9, 10, art. 4. o. 19, p. 303, 'Sess. Laws 1909, in connection with sections 3, 13, art. 6, c. 19, constitute a valid appropriation as to the salary of the Game and Fish Warden in the sum of $1,800 per annum, and his actual necessary traveling expenses, not to exceed $800 ner annum, and the salaries of not exceeding eight deputy game and fish wardens each in the sum of $800 per year and their each actual, necessary expenses, not to exceed $600 per annum, while actually employed under the direction of the State Game and Fish Warden, as controlled by sections 55 and 56, art. 5, of the Constitution, but continue in effect as an appropriation for two years and one-half only after the passage of said act.</p> <p>4. SAME — Reimbursement for Expenses. The provision of section 3, art. 6, providing that the Game and iFish Warden shall be reimbursed for his actual and necessary expenses, including expenses of catching and shipping game for propagating purposes, to be paid monthly and in the same manner as his salary and traveling expenses, does not constitute a valid appropriation, as the sum certain appropriated is not distinctly specified..</p> <p>(Syllabus by the Court.)</p>

<p>1. MUNICIPAL CORPORATIONS — Contracts — Competitive Bids. The true intent and purpose of that part of section 4, art. 1, c. 10, p. 171, 'Sess. Laws 1907-08, which provides that, “At the time and place specified in such notice, the mayor and council shall examine all bids received, and without unnecessary delay award the contract to the lowest and best bidder,” is to secure economy and protect the public from collusive contracts or favoritism or fraud, and to promote actual, honest, effective competition.</p> <p>2. SAME — Street Improvements — Use of Patented Material... Where the mayor and council of a citv of the first class pass .a resolu- . tion stating- the material to be used in certain street improvements shall be “Hassam pavement,” a patented material or process, and the notice to contractors published pursuant to said resolution contains a statement that the owner of all patents and process covering- the laying of such Hassam pavement will furnish to any bidder to whom the contract may he awarded the right to lay said pavement and furnish to such bidder an expert to give proper advice as to the laying thereof, at a stipulated price, and a written offer by said owner to this effect is on file in the office of the cits7 clerk during- all the time said notice is being -published and up to the time a contract for doing said work is let, such contract involving in its execution the use of such patented material or process is not invalid in the absence of actual fraud or deception.</p> <p>('Syllabus by the Court.)</p>

<p>1, RAILROADS — Authority of Corporation Commission — Railroad Crossing. The Constitution of the state confers upon the Corporation Commission jurisdiction to determine the necessity for, and the propriety of, a crossing- of one railway -by another, and the place where and the manner in which it is to be made.</p> <p>2. RAILROADS — Duties of State Corporation Commission — Railroad Crossings — Eminent Domain. Upon an application to the State Corporation Commission to determine the necessity for. - and the propriety^ of, a crossing of one railroad by another, no question of talcing property, with or without due process, or of condemning the lands of the road to be crossed, or of compensation therefor, can arise. The commission simply determines the necessity for the proposed crossing, and the place where and the manner in which it is to be made. After this is done, the compensation to be paid is ascertained according to the laws regulating the exercise of the right of eminent domain.</p> <p>('Syllabus by the Court.)</p>

Error from District Court, Canadian County; Frank M. Bailey, Judge. Action by the Cleveland-Trinidad Paving Compan}’ against the City of El Eeno and others. Judgment for plaintiff, and defendants bring error. — Citing: Frantz v. Autry (Oída.) 91 Pac. 193; Lewi* «>- Denver City Waterworks (Colo.) 34 Pae. 993; Des Moines Cas Co. v. City of.

Proceedings by J. J. Williams and others against the St. Louis & San Francisco Railroad Company before the Corporation Commission. From the order rendered, defendant appeals.

<p>COUNTIES — Taxation—Eradication of Ticks. The board of county-commissioners of any county which is above the quarantine line, as established by the State Board of Agriculture, has authority by reason of section 2 of House Bill No. 337 (Sess. Laws 1909, p. 19; section 219, Comp. Laws 1909) to levy a tax on all the taxable property within such county to provide a fund with which to co-operate with the State Board of Agriculture in the work of eradicating ticks, the carriers of Texas or splenetic fever, and may .levy such tax without a -petition from a majority of the voters of the county or any township therein.</p> <p>(Syllabus -by the Court.)</p>

Error from District Court, Carter County; 8. H. Bussell, Judge. Action by J. S. Mullen against J. J. Eaves. Judgment for plaintiff. Defendant brings error. This is an action of ejectment brought by defendant in error in the district court of Carter county to recover the possession of a certain tract of land situated in said county.

<p>INJUNCTION — Restraining Acts of School Officers. A taxpayer and citizen of a school district having children of school age cannot maintain an action against the officers of said district calling in question the propriety of their public acts upon the ground that the act complained of will make it less convenient for him to send his children to school.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Findings — Conolusiveness. A case having been referred to a referee, and his findings of fact nav-ing been confirmed by the trial court, the same will not be disturbed on review in this court, when there is evidence in the record reasonably tending to support the same.</p> <p>2. APPEAL AND ERROR — Review—Discretion of Court — introduction of Additional Evidence. The plaintiff having introduced his evidence and rested his case before the referee, the defendant demurring to the evidence, which was overruled, the defendant excepting and resting his case theréon, the parties then argue and brief the questions of law and fact before the referee, who. in due time, makes his findings of fact and conclusions of law, which are not satisfactory to the plaintiff, and thereupon plaintiff moves the referee to reopen said case and permit the introduction of additional evidence, which is overruled; the motion being renewed before the trial court, where it was likewise overruled and the findings of fact of the referee confirmed. Held, such questions being a matter of discretion for the referee and the trial court, the same will not be disturbed on review here, unless the record affirmatively shows an abuse of such discretion.</p> <p>(Syllabus by the Court.)</p>

Action by the State and others against the Kansas City, Mexico & Orient Railway Company. From an order of the State Corporation Commission requiring defendant to maintain a depot at a certain place, defendant appeals. Citing: Commw. v. Bail-way Co., 102 Mass. 258; B. B. Comm’rs v. Railway Co., 63 Me. 259; Railroad Co. v. Minnesota, 193 H. S. 52; R. R. Co. v. Interstate Com. Com,., 206 U. S. Ml.

<p> Error from, Pittsburg County Court; R. W. Higgins, Judge. </p> <p>Action by the Louisiana Realty Company against the City of McAlester. Judgment for defendant, and plaintiff brings error.</p> <p>Citing: Mayer v. Mayor. 2 Hun. 306; Kingston Bcmh v. Eltinge, 40 N. Y. 391.</p> <p>Citing: 27 A. & E. Ene. L. (2d Ed.) pp. 756-764; Jackson v. Atlanta, 61 Ga. 228; San Diego L. & T. Go. v. School Dist., 122 Cal. 98; Cooley on Taxation, p. 809.</p>

Error from District Court, Coal County; A. T. West, Judge. Action by J. li. Carson and others against Patsy Grennan, County Treasurer, and others. From a decree granting a permanent injunction, defendants bring error. Citing: Mobile v. Watson, 116 TT. S. 289; Miller v. Pensacola, 2 Woods, 623; O’Connor v. City of Memphis, 6 Lea (Tenn.) 730; ML.. Pleasant v. Beckwith, 101 IT. S. 514; New Orleans v. Railroad Co., 26 La.

Error from District Oouri, Greer Gouniy; G. A. Brown, Judge.' Action by the State, on the relation of W. H. Cooksey and others, for writ of mandamus to J. F. Thompson and J. M. Lassiter. From an order granting the writ, defendants bring error. —Citing: 13 Enc. PL & Pr. 630; Wilson’s Rey. & Ann.

Proceeding by the Town of Troy and others before the State Corporation Commission to compel the St. Louis & San Francisco Railroad Company to stop an interstate train at a certain station. From an order granting the relief, the railroad appeals.

<p>1. RAILROADS — Fires Set by Locomotives — Evidence. In an action against a railroad company to recover damages on account of fire caused by sparks from one of its locomotives, evidence of the setting of other fires by other locomotives is competent where it is made to appear that they weie practically identical in construction to the one supposed to have set the fire.</p> <p>2. SAME — Circumstantial Evidence. The fact that a fire, which destroyed property, originated from the sparks of a passing locomotive, may be shown by circumstantial evidence.</p> <p>3. NEW TRIAL — Verdict Contrary to Evidence — Sufficiency of Evi- . dence. A barn situated about 100 feet north of a railroad track was destroyed by fire, which caught at an opening in hay with which it was filled. An engine, running heavy and throwing sparks or cinders toward the barn, passed just prior to the time of the discovery, and no other cause for the fire is suggested than that it was set from this engine. Pires from sparks from this or other similar engines running on the same track had set fire to grass immediately around the barn on previous recent occasions. Held, that an order overruling a motion for new trial, for that the evidence did not reasonably sustain a verdict against the company, was not error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court. Comanche Countyj F. F. Gillette, Judge. </p> <p>Action by H. C. Johnson against the Chicago,' Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>On diversion of surface waters: Gibbs v. Williams, 25 Kan. 214; ilío. Pac. By. Co. v. Renfro (Kan.) 34 Pac. 802; Walker v. Railroad Co., 165 U. S. 593; Cox v. Railroad Co., 174 Mo. 588; Railroad Go. v. Speelman. 12 Ind. App. 372; Rail-wo,y Co. v. Stock (Kan.) 33 Pac. 601; Gannon v. Hargadon, 92' Mass. 106; Werner v. Popp (Minn.) 102 N. W. 366; Railroad Go. v. Davis, 73 Miss. 678: Benson v. Railroad Go., 78 Mo. 504; Mor-rissey v. Railroad Go., 38 Neb. 406; Olauson v. Railway Go. (Wis.) 82 N. W. 146; Salliotte v. King Bridge Go., 122 Fed. 378. On evidence to establish value of growing crop.s: Railway Go. v. Benitos, 59 Tex. 326; H.ays v. Grist, 4 Kan. 350.</p> <p>On diversion of surface waters: Davis v. Fry (Olda.) 78 Pae. 184; Pye v. Mantaho, 1 Am. St. Rep. 673; Railroad Go, v. Lackey, 48 Am.. St. Rep. 590; Mayor v. Sykes, 94 Oa. 30; Railroad Go. v. Wachter, 123 Ill. 440; Railroad Go. v. Anderson, 79 Tex. 427; Abbott v. Railroad Go. (Mo.) 53 Am. St. Rep. 588; Sullins v. Railroad Co. (Iowa.) 7 Am: St. Rep. 503; Railway Go. v. Marley (Neb.) 13 Am. St. Rep. 488; Woods v. Moulton (Cal.) 80 Pac. 93.</p>

Error from District Court, Muskogee County; Malcolm E. Rosser, Judge. Action by T. R. Palmer against W. R. Harris, judgment for plaintiff, and defendant brings error. —On discretion of court as to order of proof: Ilannem v. Pence, 40 Minn. 127; Graham & Co. v. Davis & Co., 4 Ohio St. 362; Stephens v. Union Assurance Society, 16 Htah, 23; West v. Cameron, 39 Kan. 736 ; Peterson v. Wood, etc., Co., 97 Iowa, 148.

<p> Error from District Court, Woods County; John L. Pancoast, Judge. </p> <p>Action bjr John L. Cox against the Kansas City. Mexico & Orient Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error From District Court, Blaine County.</p> <p>Action by the First National Bank of Okeene against J. H. Seibert and another. Judgment for plaintiff, and defendant Seibert brings error.</p>

<p> Error from District Court, Olcfuslcee County; John Carutheré, Judge. </p> <p>Action by L. C. McCormick against the Ft. Smith & "Western Eailroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>—Citing: Eddy v. Lafayette, 49 Fed. 789; Ruppert v. Brooklyn, etc., R. Co., 154 N. Y. 90; Railway Co. v. Trotter, 37 Ark. 597; Railway Co. v. Jones, 76 Ill. 311; Holman v. Railroad Co., 62 Mo. 562; Railroad Co. v. Hall (Ala.) 6 So. 277; Railway Co. v. Hage (Ala.) 37 So. 439.</p> <p>Citing: Railway Go. v. Washington, 49 Fed. 347; Railway Co. v. Ellis, 54 Fed. 481; Sans Bois Coal Co. v. Janeway, 22 Okla. 425.</p>

<p>DIVORCE — Second Action — Res Judicata — Evidence. A decree in an action of divorce "between the same parties for the same cause of action bars a re-examination of the same facts in a subsequent case, and it is only when enough has occurred since the rendition of the first decree to entitle the plaintiff to relief that a divorce will be granted in a subsequent proceeding.</p> <p>(Syllabus by the Court.)</p>

<p>REFERENCE — Filing -Report — Waiver of Objections. Where the report of a referee appointed by the court to report the law and facts in the case is filed after the time set in his order of appointment, and the party against whom judgment is rendered appears in court after the filing thereof and excepts generally to its confirmation, and on the next day files motion to set aside the order of confirmation for the purpose of excepting thereto, which is overruled, and does not raise the question of such report being filed out of time until after judgment is rendered on said report, it will he presumed that such objection is waived. (Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Time for Taking Proceedings. Where a petition in error is filed asking a review of a judgment upon the merits discharging the receiver, directing a return of ths property to defendants and taxing plaintiff in error with the costs, and an order overruling his motion for a new trial, ana an order modifying the first order, and an order requiring the clerk of the court to turn over certain moneys in his hands to J. C. H. “as acting president of” the defendant company, and it appears that more than one year has elapsed from the entry of all but the last order before the filing of the petition in error, this court is without jurisdiction to review said judgment and all but said last order.</p> <p>2. APPEAL AND ERROR — Time for Taking Proceedings — Extension. The time for instituting a proceeding in error in this court to review a judgment of the district court declining to pass upon a question raised in the petition, and upon which judgment the bar of the statute has fallen, is not extended by a subsequent order declining to pass upon the same question raised by a subsequent petition based upon the same grounds.</p> <p>3. JUDGMENT — Res Judicata. An adjudication upon the merits of a petition which declines to pass upon a question raised is a bar to another petition based upon the same ground raising the same question.</p> <p>4. . RECEIVERS — Vacation of Receivership-Determination of Right to Funds. A corporation being in the hands of a receiver, the sum of $1,140 going into his hands 'in such capacity, and being paid by proper order of court into its registry, the receivership being vacated and the court ordering all funds to be paid or turned over to said corporation, H. demanding said fund from the clerk of the court as acting president and B. claiming to bo a stockholder and president of said corporation, and entitled in said capacity to receive said fund, filed his motion in court asking that the clerk be ordered to pay said sum to him, the court, without hearing any evidence on said motion, ordered said fund to be paid to H. as acting president. Held, that the court should have heard evidence on such motion and found who the proper officer under the by-laws of said corporation was to receive said fund, and then ordered the. clerk to pay same to such officer.</p> <p>(Syllabus by the Court.)</p>

Error from Murray County Court; Harry W. Fielding, Judge. Action by the Continental Gin Company against G. W. Huff and others. A demurrer to the petition was sustained, and plaintiff brings error.

<p>1. IMPROVEMENTS — Occupying Claimant’s Act. M., after the execution to him of a void tax deed, in good faith went into possession of the lots conveyed and erected thereon improvements of the value of about a thousand dollars. After taking possession of the lots, he borrowed money from S. upon his promissory note secured by mortgage on said premises, which money he expended in placing said improvements on said lots. Afterward, and after the execution and recordation of said mortgage, M. -removed from said premises and leased the samo to IT., who went into possession as the tenant of M. Afterward M. executed a warranty deed to said lots to H., who was and is still in possession. Held that, upon a suit to foreclose said mortgage, S., upon equitable grounds, was entitled to the benefit of the occupying claimant’s act.</p> <p>2. LANDLORD AND TENANT — Estoppel to Deny Landlord's Title. The general doctrine of estoppel precludes a tenant during the continuance of his possession under a lease from buying in and setting up an adverse title to defeat a lien on the improvements on the leased premises acquired by a mortgagee in good faith from the landlord of the lessee prior to the execution of the lease. This rule does not, however, prohibit the tenant during the tenancy from purchasing any outstanding title and from asserting the same against the landlord after the expiration of the tenancy and yielding up of possession. (Syllabus by the Court.)</p>

<p>Error from District Court, Pittsburg County; Preslie B. Cole, Judge.</p> <p>Action between the A. F. Sharpleigh Hardware Company and George K. Pritchard and another. From the judgment, the Hardware Company brings error.</p>

<p>1. SPECIFIC PERFORMANCE — Contracts Enforceable. Specific performance will not lie, unless the agreement is certain, fair, and just in all its parts; and in such an action any element showing that the contract is unfair, unjust and against good conscience will justify the court in refusing such decree, although the contract, had it been executed, might offer no sufficient ground for cancellation.</p> <p>2. SAME — Executory Contract Optional with Party. An executory contract, which under its terms leaves it optional with one party whether or not he will proceed with the contemplated enterprise, makes the same likewise optional with the other, and specific performance will not be decreed.</p> <p>3. MINES AND MINERALS — Oil and Gas Leases — Construction Favoring Lessor. A different rule of construction obtains as to oil and gas leases from that applied to ordinary leases or to other mining leases; and, owing to the peculiar nature of the mineral, and the danger of loss to the owner from drainage by surrounding wells, such leases are construed most strongly against the lessee and in favor of the lessor.</p> <p>4. SPECIFIC PERFORMANCE — Contracts Enforceable — Oil and Gas Lease. Defendant, an intermarried citizen, allottee, of the Cherokee Nation, June 24, 1904, executed a contract with plaintiff in which he agreed to make an oil and gas lease on his allotment in accordance with the terms and conditions required by the Secretary of the Interior, or if they be not required, a regular oil and gas lease such as was used in the state of Kansas. Action brought for specific performance, in which the lease agreed on and sought to be enforced was shown to contain a proviso allowing plaintiff 15 years from its execution within which to begin operations, and, for an unspecified consideration, license to extend such term indefinitely; decree by the court denied. Held not error.</p> <p>5. EQUITY — Nature of Relief. The relief granted in equity is such as the nature of the case, the law and the facts, demand, not at the beginning, but at the time the decree is entered in the litigation.</p> <p>6. SPECIFIC PERFORMANCE — Denial of Equitable Relief — Right to Compensation. In a case where specific performance requiring execution of a contract is not decreed by reason of a want of equity growing out of the peculiar character of the contract involved, it is the duty of the court to retain jurisdiction of the action, and to decree compensation to the plaintiff to the extent of the money by him paid, and interest thereon, and also for all beneficial and lasting improvements which in carrying out the terms of the alleged contract he may have in good faith made upon the premises.</p> <p>7. SAME. Where, in an action for specific performance of a lease, the same is found to be of a class which will not support a decree, but there is no fraud, and. plaintiff has paid a money consideration thereon, and has in good faith entered under the same and made valuable and lasting improvements, a court in denying specific performance will grand plaintiff an opportunity to establish his right to compensation from defendant, and decree the same a lien upon the premises involved.</p> <p>(Syllabus by the Court.)</p>

Error from, the United States Court for the Southern District of the Indian Ten-itory; J. T. Dickerson, Judge. Action by Dodson & Williams, partners, against the Chicago, Rock Island & Pacific Ry. Co. Judgment for plaintiffs, and defendant brings error. On ■the 5th day of March, 1904, Dodson & Williams commenced their action in the Hnited States Court for the Southern District of the Indian Territory at Ryan, against the Chicago, Rock Island & Pacific Railway Company.

<p>1. TERRITORIES — Legislative Power to Modify Act Ratified by Congress. An act of the territorial Legislature which requires the ratification of Congress in order to make it valid as law, after such ratification cannot be modified, repealed, or amended by the Legislature without the assent of Congress.</p> <p>2. ■ CARRIERS — Rules—Ejection of Passengers. Under section 504 of the Compiled Laws of Oklahoma, 1909, common carriers oí persons may make reasonable rules for the conduct of their business, and may require passengers to conform thereto and under the provisions of section 506 may eject any passenger who refuses to conform thereto, provided the same is done with as little violence as possible at any usual stopping place or near some dwelling house.</p> <p>3. CARRIERS — Rules—Limit of Ticket. Common carriers of passengers may limit the time within which tickets for passage will be valid subject only' to the qualification that the limitation made is reasonable.</p> <p>4. CARRIERS — Carriage of Passengers — Ejection—Right of Recovery — Case. January 24, 1905, plaintiff purchased an ordinary local ticket over the line of the St. Louis & San Francisco Railway, at Chandler, Okla. T., for passage to Oklahoma City. Tno same was stamped as of the dat e of purchase, and oh its face bore the condition, “good only one day from date of sale as stamped on back.” Not having used the same plaintiff tenderer it for passage on April 8, 1905, and the same was refused by the conductor, and on plaintiff’s refusal to pay his fare he was in the daytime near a residence and without violence required to leave the train, whereupon he brought suit for damages, and on a showing of these facts the court denied a request for an instructed verdict for the defendant. Held error.</p> <p>('Syllabus by the Court.)</p>

<p> Error from, Garter County Court; I. B. Mason, Judge. </p> <p>Action by J. Goldsmith against C. M. Joiner. Judgment for plaintiff, and defendant brings error.</p>

<p> Brror from District Court, McClain County; B. McMillan, Judge. </p> <p>Action by J. B. Fisher against S. M. Hussey and others. Judgment for defendants, and plaintiff brings -error.</p>

<p> Error from ComancJie, County Court; James U. Wolverton, Judge. </p> <p>Action by C. W. McDonald against J. J. Bailey. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Bryan Countyj D. A. Richardson, Judge.</p> <p>Action by S. A. Whale and the Connecticut Fire Insurance Company of Hartford against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Kingfisher County; A. H. Houston, Judge. </p> <p>Action by E. H. .Eiklor and H. E. Hopkins against David Badger. Judgment for defendant, and plaintiffs bring error.</p>

<p>DIVORCE — Appeal—Notice of Intent to Appeal. 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 6180, Comp. Laws Okla. 1909, this court is . without jurisdiction to hear and determine the appeal, and the same will he dismissed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Comanche County; F. E. Gillette, Judge. Action by the Moncrief-Cook Company against Mattie Jones. Judgment for plaintiff, and defendant brings error; On question of acceptance of options: 24A. &E. Ene.

<p>CORPORATION COM MISSION — Orders—Review by Court. Where an order of the Corporation Commission is assailed on an appeal solely upon the ground that there was not sufficient evidence before the commission to entitle the order to the prima facie presumption of being reasonable, just, and correct, obtaining •by reason of section 22, art. 9, of the Constitution, if there is any evidence reasonably tending to support the findings of fact and the order of the commission its order will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

Applicatiou by the State, on the relation of Daniel W. Hogan and other?, for writ of prohibition to the District Court of the Thirteenth Judicial District and others.

<p> Error from, District Gourt, Murray County; R. McMillan, Judge. </p> <p>Action between D. E. Ellis and others and H. M. Carr. From the judgment, Ellis and others bring error.</p>

<p>APPEAL AND ERROR — Case-Made—Correction. When a case-made or record is filed in the Supreme Court, if any evidence heard on the trial of such, cause is omitted therefrom, such court may on its own motion order, within a reasonable time to be fixed by said court, that such omitted parts under the direction of the trial judge may be Incorporated in the case-made with the same effect as if it had been incorporated at the beginning. •See section 1, art. 4, e. 28, p. 322, Sess. Laws Okla. T. 1905.</p> <p>(a) No appeal may be dismissed by reason of such omission until an opportunity for such correction has been allowed. ('Syllabus by the Court.)</p>