Volume 26 — Oklahoma Reports

<p> Error from District Court, Pittsburg County; P. B. Cole, Judge. </p> <p>Action by Andrew Jackson and others against the Peaceable Creek Coal Company and others. From the judgment, defendants bring error.</p> <p>Copies of briefs did not reach the reporter.</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Where no .briefs have been filed by the plaintiff in error, in accordance with rule 7 of this court (20 Okla. viii, 95 Pac. vi), a motion having -been made after notice that the appeal be dismissed on that ground, and no response having been made thereto giving a satisfactory reason for such failure to comply with such rule, the appeal will be dismissed.-</p> <p>('Syllabus by the Court.)</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by the Southwestern Grain & Produce Company, a partnership, against the Z. ,T. Fort Produce Company. Judgment for plaintiffs, and defendant brings error. This action was begun in the lower. court by defendants in error, who, for brevity and convenience, will be called “plaintiffs,” against plaintiff in error, who will hereafter be called “defendant.” The original petition was filed on December 18, 1905.

<p>Error from District Court, Custer County; C. F. Irwin, Judge.</p> <p>Action by Jerry C. Scully against J. A. Williamson. Judgment for defendant, and plaintiff brings error.</p> <p>Citing: 23 A. & E. Enc. Law, 917; 19 Cyc. 271; Halley v. Baker, 132 N. Y. 1; Jenkins v. Hollingsworth, 83 Ill. App.; Friested v. Deitrich, 84 Ill. App. 604; Francis v. Baker, 45 Minn. 83; Greene v. Hollingshead, 40 Ill. App. 195.</p>

<p>Error from District Court, Oklahoma County; W. M. Bowles, , ,■ Trial Judge.</p> <p>Action by J. A. White against the Albaugh Bros. Dover Company. Judgment for plaintiff. Defendant brings error.</p>

<p> Error from the United States Court for the Southern District of the Indian Territory, at Byan; J. T. Dickerson, Judge. </p> <p>Action by M. F. Ball against W. N. Gann. Judgment for plaintiff, and defendant brings error.</p> <p>On question of time of performance of contracts: Hart v. Bullion, 48 Texas, 278; Watts v. Sheppard, 2 Ala. 425; Lindsey v. Police Jury, 16 La, Ann. 389; Scully v. Hamilton, 19 Ill. App. 286.</p>

Lawrence;, Judge. Action by J. C. McShea against Marshall L. Bragdon. Judgment for plaintiff, and defendant appeals.

<p>Error from, District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by Mabel C. Watson against Henry Eein and others. .Judgment for defendants, and plaintiff brings error.</p>

B. Lawence, Judge.- Action by Zeke Moore against Richard C. Adams, trustee,, and others. There was a directed verdict for defendants, and plaintiff brings error. No briefs reached the reporter.

<p>1. MONEY RECEIVED — Right of Action. An action .will lie to recover a sumí certain whenever one has the money oí another which he in equity and good conscience has no right to retain.</p> <p>2. SAME — Case. .Plaintiffs’ evidence disclosed that P., having a claim against a county for building a bridge, assigned, in writing, a part thereof to them, as partners, in payment o£ a debt due the firm: that said assignment when made was pinned to said claim; that subsequently, while in this condition, said claim was, in writing on the back thereof, assigned by P. to defendant, land by it lodged in the office of the county .clerk, where the same was filed, and bv the chairman of the board of county commissioners, approved, audited, allowed, and by said board paid in full to defendant. Held, in a suit by plaintiffs against defendant for the amount due them under their assignment, that the court erred in sustaining a demurrer to ' ■ the evidence</p> <p>('Syllabus bv the Court.)</p>

Action by the State and J. D. Dnrksen against the St. Louis & San Francisco Bailroad Company. From an order of the State Corporation Commission fining defendant for contempt, defendant appeals.

Error from Pittsburg County Court; R. W. Higgins, Judge. Action by M. D. Collins against the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant brings error. No briefs reached the reporter.

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by O. B. Beigel and others against C. N. Haskell, Governor. Judgment for plaintiffs, and defendant brings error.</p> <p>Citing: Paine on Law of Elections, 1888, see. 309; Black on Interpretation of Laws, pp. 343-345; People v. Town of Fairbury, 51 Ill. 149; Gale v. Mead, 2 Denio. (N. Y.) 160; Heath Cases, 3 Hill. (N. Y.) 42; People v. Allen, 6 Wend. (N. Y.) 486; Sackett v. State, 74 Ind. 491; State v. Harris, 17 Ohio St. 608; Pond v. Nagus, 3 Mass. 230; State v. Smith, 22 Minn. 218; Colt v. Evers, 12 Conn. 242.</p> <p>Citing: Gossard v. Vaught, 10 Kan. 162; Garfield v. ü. S., 30 Appeals D. C. 171; ü. S. v. Bank of Metropolis, 15 Pet. 377; Stone v. U. S., 2 Wall. 525; 11 Cyc. 403; Board, etc., Trustees v. Board of Supervisors (Cal.) 34 Pac. 244; 55 Am. St. Bep. 209, notes.</p>

Error From District Court, Washington Countyj T. L. Brown, Judge. Action by Norman Barker against James Terrapin. Judgment for plaintiff, and defendant brings error. This action was brought in the district court of Washington county by defendant in error to recover for services rendered by him to plaintiff in error as- an attorney, of an alleged reasonable value of $1,000, and for expenses incurred and paid out by him for plaintiff in error in rendering said services.

<p>Original application for writ of habeas corpus by Edward B. Justus.</p>

Error from District Court, Ohfushee County; Frank M. Bailey, J udge. Action by Ealpli A. Dill against Charles W. Board. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Osage County; Jolm J. Shea, Judge. </p> <p>Action by W. A. Glasscock against W. P. Mills. Judgment for plaintiff and defendant brings error.</p> <p>Citing: Wells v. Pennington County (S. D.) 48 N. W. 305; Smith v. Pennington County (S. D.) 48 N. W. 309; Riverside Tiup. v. Newton (S. D.) 75 N. W. 899; Thol'l v. Holes, 65 Kan. 803; Streeter v. Stalnalcer, 61 Neb. 305; Rolling v. Emricle (Wis.) 99 N. W. 464; Joyce, Law of Nuisances, secs. 368, 370, 379, 380; Elliott on Roads and Streets (3d Ed.) sees. 660, 661.</p>

<p>1. CONSTITUTIONAL LAW — Self-Executing Provisions. Section 15, Bunn’s Const. Okla., providing that “right and justice shall he administered without sale, denial, deiaj' or prejudice,” is self-executing.</p> <p>2. • JUDGES — Disqualification — Procedure — Legislative Control. When the prejudice of the trial judge is made the ground of a motion for a change of judge, the Legislature may prescribe the method of determining this matter; but it is without power to abolish this ground of disqualification.</p> <p>3; JUDGES — Disqualification—Procedure. A defendant, seeking to disqualify a trial judge upon any ground, must follow the procedure prescribed in section 5. Act March 22, 1909 (Bess. Laws 1909, p. 169, c. 14, art. 1).</p> <p>4. STATUTES — Constitutional Law — Disqualification of Judges. The act of March 22, 1909 (Sess. Laws 1909, p. 167, c. 14, art. 1), prescribing the disqualifications of judges of courts of record, and providing for the election of a special judge pro tempore when the regular judge is disqualified, and repealing section 8-, art. 1, c. 27, p. 285, Sess. Laws 1907-08, is free from, constitutional objections.</p> <p>5. STATUTES — Enactment—Necessity of ¡Enacting Clause. That, portion of section 3, art. 5, of the official copy of the Constitution, which provides .that “the style of all bills shall he, 'Be it enacted by the people of .the state of Oklahoma,’ ” applies only to bills adopted by the people under the initiative and referendum clause of the Constitution.</p> <p>(Syllabus by the Court.)</p>

<p>Mandamus by Julia A. Turner against Farrar L. McCain, Judge of the Superior Court.</p>

<p>Mandamus by James Myers against Frank M. Bailey, District Judge.</p>

Error from, District Court, Oklahoma, County; G. W. Clark, Judge. Action by Thomas J. Bodine against the Times-Journal Publishing Company. Judgment for defendant, and plaintiff brings error. Briefs did not reach the reporter.

<p>1. SALES — Warranties—“Sure Foal-Getter.” O., in selling a stallion to lB. and others, warranted that he was a “sure foal-getter.” Held that, such technical term as related to such a horse not being otherwise explained by evidence, it meant a reasonably sure foal-getter.</p> <p>2. WITNESSES — Sales—Rescission of Contract — Admissibility of Evidence — False Representations. The allegations of the answer and the evidence tending to show that the price at which the stallion had been stood was one of the material warranties, and the vendor having been used as a witness on the part of the plaintiff to maintain other issues on his part, denied making the alleged warranty as to the price at which said stallion had previously been stood. Held, that it was error to exclude the evidence as to such alleged warranty from the consideration of the jury in their determining the weight of the evidence of such vendor.</p> <p>(a) The vendor making false and fraudulent representations as to the facts which he asserted had actually taken place, to wit, that a certain stallion had previously been stood at a certain price, whereby the vendees were induced to buy such stallion, held to be sufficient ground for rescission.</p> <p>(Syllabus by the Court.)</p>

<p>Mirror from District Court, Washington Countyj T. L. Brown, Judge.</p> <p>Action by Ollie T. Barker against the Bartlesville Vitrified ' Brick Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Laughlin v. Fariss (Oída.) 50 Pac. 254; San Antonio, etc., Co. v. Bodenhamer, etc., Co., 133 Cal. 248; 1 High on Injunctions, § 4; Pomeroy on Equitable Remedies, § 264.</p>

<p> Error from District Court, Tillman County; J. T. Johnson, Judge. </p> <p>Action by. the First State Bank of Davidson against C. J. Clingan and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Jackson County Court; E. E. Core, Special Judge. </p> <p>Action by B. F. Beach against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p> <p>—Citing Peterson v. Railway Co., 205 U. S. 375.</p> <p>Citing M. K. & T. By. Co. v. Welts (Tex.) 58 S. W. 842.</p>

<p> Error from Pittsburg County Court; B. W. Riggins, Judge. </p> <p>Action by T. K. Walker against the Ft. Smith & Western Eail-road Company, Judgment for plaintiff, and defendant brings -error.</p>

Error from Oaddo Oownty Court; B. F. Holding, Judge. Action by the Joseph W. Moon Buggy Company against the Smith-Wogan Hardware & Implement Company. A demurrer to the answer was sustained, and defendant brings error.

<p>APiPEAL AND ERROR — Dismissal—Failure to File Briefs. L. having filed his petition with case-made attached, and C, having filed its motion to dismiss the appeal on the ground of plaintiff’s failure to comply with the rule, which requires brief of the plaintiff in errpr to ibe prepared, served, and filed with the clerk of this court within 40 days after the filing of the petition in error, and. neither any response having been made thereto nor any briefs filed, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. The syllabus in Leavitt et al. v. Commercial National Bank, infra, 109 Pac. 71, is made the syllabus in this case.</p> <p>(Syllabus by the Court.)</p>

Action by the State against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant appeals. The Capital Grain & Elevator Company of Oklahoma City filed an information before the Corporation Commission, alleging that the appellant violated Order No. 45 by collecting $2 switching-charges in Oklahoma City for the switching of a car load of wheat to and from its elevator.

Error from, District Court, Hughes County; John Caruthers, Judge. Action by Mary Ann Wesley and another against W. D. Diamond and another. There was an order sustaining a motion to strike certain paragraphs from the petition, and plaintiffs bring error.

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action by Anna E. C'avett against J. P. Love, sheriff, and others. Judgment for plaintiff, and defendants bring error. Copies of briefs did not reach the reporter.

Error from District Court, Kay County; W. M. Bowles, Judge. Action by the First National Bank of Ponca City against Nathaniel Williams and others. The Aetna Building & Loan Association, defendant, filed a cross-complaint. From an order setting aside a default judgment under -the cross-complaint, the association brings error.

<p> Error from District Court, Carter County; S. II. Russell, Judge. </p> <p>Action by T. N. Coleman against W. B. Frame, County Clerk of Carter County, and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Wagoner County Court; W. T. Drake, Judge. </p> <p>Action between Maggie Baker and J. W. Phelps. From the judgment, Baker brings error;</p>

<p>Application by E. T. Morrison for a writ of prohibition against T. L. Brown, judge of the district court, and another.</p>

<p> Error from Ellis County Court; A. E. Williams, Judge. </p> <p>Action between Francis M. and Anna M. Vermillion and Otis H. jBevis. From the judgment, the Vermillions bring error.</p>

Error from District Court, Muskogee County; G. A. Brown,, Judge. Action between the Pioneer Telephone & Telegraph Company and J. W. Davis, special administrator of J. L. Davis. From the judgment, the telephone and telegraph company brings error. On motion to dismiss.

<p>1. CONTRACTS — Execution—Conditions Precedent — Reduction to Writing. Where parties to an agreement make it reduction to writing arid signing a condition precedent to its completion,- it will not be a contract until this is done, and this is true although all the terms of the contract have been agreed upon. But where parties have assented .to all the terms of the contract, and they are-fully understood in the same way by each of them, the mere reference in conjunction therewith to a future contract in writing will not negative the existence of a present contract.</p> <p>2. SALES — Contract—Execution—Reference to Future Reduction to Writing. H. entered into a written contract with W. to manufacture and furnish roofing material to be used in the construction of certain school buildings which H. had contracted to erect. On 'If. making default, J. took the contract to erect these building's and wrote to W. fa corporation) informing it that he had entered into a contract to complete H.’s contract, which he signed. “after the telephone communication between -yourself and Mr. Thomas, president of the school board, in which you stated that you would carry out with me the contract of Juné 1, 1907, made -between yourself and Mr. Harper, and this is to confirm the telephone conversation between Mr. Thomas and yourself ■ and to request that you.do likewise. I note that your representative will be here Wednesday, at which time we can enter into a more formal memorandum of our agreement if same should be considered necessary.” Whereupon W., without a further writing, manufactured, ready for delivery, the material Involved in the contract with IH., which J. refused to' receive. To the petition setting up these facts and praying damages, the court sustained a demurrer. Held error.</p> <p>('Syllabus by the Court.)</p>

<p>APPEAL -AND ERROR — Reversal—Failure of Defendant in Error to File Brief. 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>■Williams, J., dissenting.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Lincoln County; W. N. Maben, -Judge. Action by Mary A. Botkin against H. S. Emmerson, administrator of Joseph D. Morris. Judgment for plaintiff, and defendant brings error. On ef-feet of general demurrer: 6 A. & E. Ene. PI. & Pr., pp. 301, 305; Couse v. Phelps, 13 Kan. 353; Houston y. Delahay, 14 Kan. 125; By. Co. v. Ins. Co., 2 Kan. App. 374; Toivnsend v. Burr (Kan.) 60 Pac. 477; Hanenkrat v. HasmÁl, 10 Oída. 219.

<p> Error from Pottawatomie County Court; E. D. Reasor, Judge. </p> <p>Action by Lettie Shelton against School .District No. 39, Pottawatomie County. Judgment for plaintiff, and defendant brings error.</p> <p>Citing Board of Com’rs v. Sewell, 3 Okla. 281, and Kane v. School Dish, 5 Kan. App. 260.</p>

Error from Distinct Court, Oklahoma County; G. W. Clark, Judge. Mandamus by Julian White against the Missouri, Nansas & Texas Bailway Company and another. A demurrer to the evidence was sustained, and plaintiff; brings error. Citing: Jones v. Sdig-man, 81 N. Y. 190; Wademan v. Albany B. Co. 51 N. Y. 568; Boggs v. Chicago B. B., 6 N. W. 744; Sheridan v. Atchison, etc., By. Co., 56 Mo.

<p> Error from District Court, Cleveland County j C. F. Irwin, Judge. </p> <p>Action between S. P. Render and J. W. Hooker. From the judgment, Render brings error.</p>

<p> Error from District Court, Kay County; Wm. M. Bowles, Judge. </p> <p>Action by Charles A. Huene against W. H. Yansellous. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Pittsburg County’Court; B. W. Higgins, Judge. </p> <p>Action by I. M. Benson against the Ft. Smith & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Gulf, C & S. F. By. Co. v. Washington, 49 Fed. 347; M. K. & T. By. Go. v. Ward (Ind. Ter.) 43 S. W. 954; Banlc v. Johnson, 22 Okla. 228.</p>

<p> Error from Ohociaw County Court; W. T. Glenn, Judge. </p> <p>Action by J. H. Huff against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Craig County Court; Theo. D. B. Frear, Judge. Action by T. J. Hancock against the Missouri, Kansas & Texas Kailway Company. Judgment for plaintiff, and defendant brings error. Briefs did not reach the reporter.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by tbe Badger Lumber Company against W. H. Rhoades and T. Ii. Dunn and another, garnishees. From an order vacating a judgment rendered against the garnishees, plaintiff brings error. -Citing A. J. Hanoi Hardware Co. v. Klippert et al. (Kan.) 74 Pac. 254.

<p>1. CARRIERS — Live Stock — Contract—Notice of Injury. An agreement in a special contract between a shipper and a carrier executed in the Indian Teritory prior to the admission of the state that as a condition precedent to the shipper’s right to recover any damages for the loss or injury to live stock shipped under the contract resulting from the carrier’s negligence, including delays, the shipper shall, within a specified period of time after the happening of the injury complained of, which period of time is reasonable, file with the carrier or certain of its agents his claim therefor, giving the amount thereof, is not against public policy; and, in the absence of statutory or constitutional provisions prohibiting the same, is valid.</p> <p>2. SAME — Limiting Time of Suit. A stipulation in such contract that no suit thereon against the carrier shall be brought after the lapse of ninety days from the happening of the injury complained of is valid.</p> <p>(’Syllabus by the Court.)</p>

<p> Appeal from Corporation Commission. </p> <p>Action by the State against the Missouri, Kansas & Texas Railway Company. Judgment for the State, and the Railroad Company appeals.</p>

<p> Error from Kay County Court; Claude Duval, Judge. </p> <p>Action bj' Robinson & Co. against N. L. Stiner. Judgment for defendant, and plaintiff brings error.</p>

<p>1. NUISANCE — Public Nuisance — 'Right of Individual to Sue. An action cannot be maintained by a private person for an interference with or an obstruction in a public highway constituting a public nuisance, unless he is thereby specially injure! in some wa.y not common to the public at large.</p> <p>2. SAME — Obstruction of Street Travel. Plaintiff is the owner of a quarter section of land cornering with an addition to a city. Where the land corners with said addition, two public highways adjacent to his land -intersect. At this point1, three streets, leading across the addition from the city, end in said public highways. A railway company, under legislative authority from the municipal corporation was alleged to have constructed and operated lines of railway and switch tracks upon and across all of said streets, and upon two of them in such a manner as to obstruct greatly pubic travel over same. Held, that, in the absence of averment in the petition showing that the streets obstructed were plaintiff’s only, means of access to his property which did not abut upon said streets, his petition failed to state sufficient facts to show that he had suffered an injury special to himself and different in kind from that suffered by the general public, and a demurrer to his petition for that reason was rightfully sustained.</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Pittsburg County;- Preslie B. Cole, Judge. </p> <p>Action by John F. Carroll and others against the Capital Fire Insurance Company. Judgment for plaintiffs, and defendant brings error.</p> <p>On construction of" '•ceasing operation": Bole v. New Hampshire Ins. Co., 159 Pa. St. 53. Construction favoring the insured: Thompson v. Ins. Co., 104 U. S. 252; Conn. F. Ins. Co. v. Jerry, 60 Neb. 338.</p>

<p>1. CUSTOMS AND USAGES — Sufficiency of Proofs Proof of a local custom, without establishing knowledge of same in the party sought to be bound, unless’such usage or custom is so notorious, universal and well established that notice to such party will be conclusively presumed, is not sufficient.</p> <p>2. BROKERS-^Exclusive Agency — Evidence. The fact that the principal had not listed the land for sale with any other agent at the time he authorized a certain agent to' sell same, without more, did not constitute an exclusive agency.</p> <p>(’Syllabus by the Court.)</p>

<p>INTOXICATING LIQUORS — Interstate Shipment — Control of State B., consigned, at Louisville, Ky., 124 cases of whisky to S., at Tulsa, Okla., and such interstate shipment having reached Tulsa on June 18, 1908, and being placed by the employees of the interstate Carrier in a car used for storage purposes, the lower court found that such carrier, the plaintiff in error, was in possession of 97 cases of such whiskey on June 20th, at the time the same was seized by the officers representing the defendant in error. Held that, the lower court having found that same was in possession of the interstate carrier at the time of seizure, and there being evidence reasonably tending to sustain such finding, the state laws had not attached thereto.</p> <p>(a) The lower court found that 10 other eases of said whisky, it not being shown who received from the carrier the other 17 cases, were in the possession of T. & O. on the premises of the interstate carrier on June 20, 1908, at which time said 10 cases were seized by officers representing the defendant in error, but .such finding not stating whether said 10 eases had been delivered by the carrier to T. & O. as the representatives of S., the consignee, nor in what capacity they held the possession of said whisky. Held that, in order to have the state laws attach to such interstate shipment, or any portion thereof, it must affirmatively appear in a legal way that such shipment, or such portion thereof as may be sought to be confiscated, had been delivered to the consignee or his agent by the interstate carrier or its agent.</p> <p>('Syllabus by the Court.)</p>

<p>RAILROADS — Obstruction of Street by Railroad — Rights of Abutting Owner. IFrior to the admission of the state, a railway company with legislative sanction from a municipality constructed upon the streets of a city in what was then Oklahoma Territory its line of railway track in front of lots of an abutting owner at varying distances from his property lines. In an action by the abutting owner to recover damages, the jury was instructed that, if the railway company had interfered with the ingress and egress to and from plaintiff’s property or erected any obstruction upon the street, plaintiff was entitled to recover. Held, that since said instruction authorized plaintiff to recover for any obstruction made by the railway track upon the street although the same might be upon surface grade and so laid as to cause him no inconvenience other than that suffered by the general public in passing over same and for any obstruction resulting from the maintenance of the track and running trains thereupon common to all the public, the instruction was error, and that the rule in such case is that the abutting property owner is entitled to recover when his means of access to his property has been cut off or materially interrupted by the building of the railway track upon the street in front of his property. Following Foster Lumber Co. v. Ark. Valley Ry. Co., 20 Okla., 583, 95 Pac. 224.</p> <p>(Syllabus by the Court.)</p>

<p> Error from, Tulsa County Court; N. J. Gubser, Judge. </p> <p>Search and seizure warrant by the State against a Certain Car of Beer. From the judgment, the Rochester Brewing Company brings error.</p>

Error from. District Court, of Wagoner County; John H. King. Judge. Action by John E. Weer against Thomas C. Harrill, trustee for the Western Investment Company. Judgment for plaintiff, and defendant brings error.

<p> Error from District- Court. Blaine County; M. C. Garber, Judge. </p> <p>Action by the Choctaw Northern Townsite & Improvement Company against R. C.' Rhyne. Judgment for defendant, and plaintiff brings error.</p>

Error from Marshall County Courtj J. IF. FaJkner, Judge. Action by Annie May Folsom, by her next friend, J. B. Ry* burn, against H. L. Thompson. Judgment for plaintiff, and defendant brings error.

<p> Error from the District Court, Logan County; A. H. Iluston, Judge. </p> <p>Action by the Aetna Building & Loan Association against Charles II. Higbee. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CONTINUANCE — Discretion of Court — Review. The granting or refusing to grant a continuance of a cause rests largely in the sound judicial discretion of the trial court, and, in the absence of abuse of such discretion, the ruling of the trial court will not be disturbed here.</p> <p>2. CONTINUANCE — Absent Witness —' Application. Where the continuance of the cause is sought on the ground of an absent witness', the party applying therefor must, among other things, make it clearly appear in the application therefor where said witness resides, if he knows, the probability of procuring his testimony within a reasonable time, and that the facts affiant believes said witness will prove are by affiant believed to be true. Where said application fails to so -state, it is not error to refuse to grant a continuance.</p> <p>3- CARRIERS — Injuries to Passenger Alighting. A railroad company is liable to a passenger on a freight train for injuries inflicted upon him by violently and without warning jerking the train after it had slowed up and stopped at the station platform at the end of the journey, and after he, by direction of the conductor, has arisen from his seat in the car to alight.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pottawatomie County; W. N. Mdben, Judge. Action by Mollie Prairie, for herself and as next friend for Olen Prairie, a minor, against J. C. Fisher, receiver of the Shawnee Light & Power Company. Judgment for plaintiff, and defendant brings error. Citing: 26 Cyc. 1173, 1176, 1463, 1473; Mo. Pac. By. Co. v. Watts 64 Tex. 568; Ryan v. L. A. Ice & Cold Storage Co-. 112 Cal. 244; Virdelli v. Commission Go., 115 Cal. 517; Myhan v. La.

<p>1. CARRIERS — Carriage of Goods — Action for Loss — Prima Facie Case. In an action against a carrier by a shipper for loss or damage to a car of organs, said shipment having been delivered to the carrier in good condition, and by it to the consignee in a damaged state, this makes prima facie case against the carrier.</p> <p>2. CARRIERS — Carriage of Goodsj — Damage—Prima Facie Defense —Shifting of Burden of Proof. In an action by a shipper against a carrier to recover on a shipment consisting of a car of organs damaged by a flood, When the organs were in a car on a side track in defendant’s yard,, such car in due course of business having been received at that point on June 4th, and on June 5th, with 74 other cars, tendered to the connecting carrier, 40 of said cars being accepted, and this car, with the balance, being declined on the ground that it was unable, on account of the flood, to handle all the business tendered it; also on June 6th and 7th, it with other cars being tendered to such connecting carrier, and likewise refused, it was then removed to the side track in the yards where the damage occurred, the same ■being as reasonable a place of safety as was available at that time, the damage being admittedly occasioned by an act of God, this constituted a prima facie defense.</p> <p>(a) The carrier, by proving the damage was due entirely to the flood or act of God, overcomes such prima facie case, and the burden shifts to the shipper, then, to show that negligence on the part of the carrier co-operated with the act of God in bringing about the damage to the shipment,- in order to recover.</p> <p>3. CARRIERS — Carriage of Goods — Damage—Negligence—Evidence. The car of organs having been received on the morning of June 4th in regular course of business, and with 74 others, in due course of business, being tendered to the connecting carrier on June 5th, only 40 of which were accepted, the others being declined on account of the inability of such connecting carrier to handle same, that of itself, without more, is not sufficient to show negligence contributing to the loss.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Lincoln Countyj W. N. Maben, Judge. Action-by C. M. Stark and others' against W. H. Fallís and others. Judgment for defendants, and plaintiffs bring error.

<p>1. RAILROADS — Animals on Track — Care Required. The plaintiffs’ mules having' trespassed upon-the railroad track of defendant without any actual fault on the part of said plaintiffs, after the presence and peril of the mules were known to it the obligation rested upon it to exercise ordinary care in the management of its trains to prevent injury to such mules.</p> <p>2. EVIDENCE — Presumptions — Failure to Introduce Evidence. When it is reasonably within the power of a party to offer evidence upon the facts and rebut the inferences which the circumstances tend to establish against him, and he fails to offer such proof, to rebut same, the natural conclusion is that the proof, if produced, would support the inferences against him, and the jury is -justified in acting1 upon that conclusion.</p> <p>(Syllabus by the Court.)</p>

H. Bussell, Judge. Mandamus by the State, on the relation of I. E. Best, against the Board of Education of the City of Ardmore and others. From a judgment granting the writ, defendants appeal. —Citing: State ex rel. v. Scales, 21 Olda. 683; 1 Abbott, Munic. Corp. secs. 5, 8; 3 Abbott, Munic. 'Corp. secs. 1067-1073; School Dist. v. Zediher, 4 Olda. 599; Madden v. Lancaster County, 65 Fed. 188; Knowles v. Board of Education, 31 Kan. 692; State v. Ogam.

<p>1. A'PPEAL AND ERROR — Dismissal—Case-Made Settled in Party’s Absence. A proceeding in error brought to this court on a case-made, where it does not appear from the record or otherwise that the defendant was present either personally or. by counsel at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Muskogee County; James R. Tolbert, Judge. </p> <p>Action by J. A. Markham and others against D. Roberts. Judgment for plaintiffs, and defendant brings error.</p> <p>Citing: Tyler v. Parr, 52 Mo. 249; 1 Ballard, Real Prop., §361.</p>

Petition by B. C. Wadlington and others before the Corporation Commission to establish telephone rates of the Purcell & Lexington Telephone Company, owned by Lewis T. Hine. From an order establishing the rates, respondent appeals.

Error from Ouster County Court; A. H. Latimer, Judge. Action by Tom Franks, by his next friend, against G-. W. Roof and others. Judgment for plaintiff, and defendants bring error.

<p>APPEAL AND ERROR — Review—Dismissal of Appeal from Justice. The order of the trial court, reciting that the plaintiff in error “had failed to prosecute his appeal to effect and without unnecessary delay,” is presumed on appeal here to be correct; and unless it affirmatively appears from the record that such conclusion by the trial court were erroneous, the judgment dismissing the appeal will be affirmed.</p> <p>(Syllabus by the Court.)</p>

<p>SUBSCRIPTIONS — Railroad Bonus. Same as in Choctaw Northern Townsite & Improvement Co. v. Rhyne, infra, 109 Pac. 74.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pottawatomie County; B. F. Burwell, Judge. Action by W. W. Grant against Samuel J. Scott and others. Judgment for plaintiff, and Mamie H. Clark and others bring error. Citing: Wilson’s Rev. & Ann. Stat.

<p>MANDAMUS — Secretary of State — Ministerial Duties — Filing Initiative Petitions. In a mandamus proceeding' to compel the Secretary of State to perform the purely ministerial duty imposed upon him by the statute and the Constitution to file initiative -petitions for the submission of an amendment to the Constitution to a vote of the people, respondent will not be permitted, as a part of his defense, to question the validity of such proposed amendment upon the ground that it is violative of an act of Congress, the terms and conditions of which have been accepted by the state, and for that reason will be void, if adopted.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McIntosh Countyj Presley B. Cole, Judge. </p> <p>Action by Sndie M. Burdett and others against Bell Burdett and others. Judgment for plaintiffs, anc[ defendants bring error:</p> <p>Citing: Martin v. McAles-ter, 94 Tex. 567; Hearings Succession, 26 La. Ann. 326; Pace v. Pace, 19 Fla. 438; Morris v. Hodd (Ga.) 36 S. E. 83; Hubbard v. Turner, 93 Ga. 752; Kenyon v. Kenyon (R. I.) 24 Atl. 787; Ton Arb v. Thomas.{Mo.) 63 S. W. 94; Redding v. Vogt (N. C.) -53 S. E. 337; Gray v. Whiltermore (Mass.) 78 N. E. 422; Masonic Order v. Bunch (Mo.) 19' S. W. 25.</p> <p>Citing: Huston v. Merrifield, 51 Ind. 24; U. 8. Life Ins. Go. v.- Ludwig, 103 Ill. 305; Amer. & Eng. Ency. (1st Ed.) vol. 3, p. 235, see. 1; Id. vol. 13, p. 631, 650; Hasley v. Heist, 86 Ind. 45; St. John v. Amer. Mut. Life Ins. Co. (N. Y.) 64 Am. Dec. 529; Ionia Oo. Savings Bank v. McLean, 84 Mich. 625; Foster v. Gilo, 50 Wis. 610; Steel v. Gatlin, 115 Ga. 924; Stull v. Graham, 60 Ark. 470; Gould v. Emmerson, 99 Mass. 154; McClure v. Johnson, 56 Iowa, 620; Hatcher v. Buford, 60 Ark. 174; Johnson v. Hall, 55 Ark. 210; Libby v. Libby, 37 Me. 359; Scliield v. Sharp, 85 Mo. App. 178; Conn, Mut. Life Ins. Co. v. Fish, 19 N. H. 126; 25 Oye. pp. 890, 896; Pinneo v. Goodspeed, 120 Ill. 524; Douglass v. Parlcer, 84 Me. 522; Bliss on I.ife Insurance (2d Ed.) sec. 328; Ravjson v. Jones, 52 Ga. 458; Burroughs v. Life Ins. Co., 97 Mass. 359; McIntyre v. Costello, 47 Hun. (N. Y.) 289; 14 Cyc. 901, see. b; Ilewett v. Cox, 55 Ark. 234; Crowley v. Mellon, 52 Ark. 1.</p>

<p>Application of Jessie L. Carleton and others for writ of prohibition to Frank W. Rushing, Judge, and others.</p>

<p> Error from, District Court, Comanche County, F. E. Gillette, Judge. </p> <p>Action by D. E. Davis against the Chicago, Eoek Island & Pacific Eailway Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Railroad Co. v. Riley, 33 Kan. 314: Railway Co. v. Renfrow (Kan.) 34 Pac. 802; Walker v. Railroad Co., 165 U. S. 593; Cox v. Railway Co., 174 Mo. 588; Hagge v. Railway Co., 104 Fed. 391; Hannaher v. Railroad Co., 37 N. W. 717; Railroad Co. v. Speelman, 18 Ind. App. 378; Railroad Go. v. Hammer, 82 Kan. 763; Bryant v. Merritt (Kan.) 80 Pac. 600; Morrison v. Railroad Go., 67 Me. 353; Gannon v. Hargadon, 92 Mass. 106; Werner v. Popp (Minn.) IOS N. W. 366; Railroad Go. v. Davis, 73 Miss. 678; Benson v. Railroad Go., 78 Mo. 504; Morrissey v., Railroad Co., 38 Neb. 406; Sullivan v. Browning (N. J.) 58 Atl. 302; O’Connor v. Railway Co., 52 Wis. 526; Clamon v. Railway Go. (Wis.) 82 N. W. 146; 3 Suth. Damages, see. 1046; Gould on Waters, sec. 416; Sherloclc v. Railway Go., 115 Ind. 22, 17 N. E. 171; Water Co. v. Dickover, 46 N. E. 591; Railway Company v. Cline, 63 N. E. 483; City of Nashville v. Comar, 12 S. W. 1027; TJline v. Railroad Company, 4 N. E. 536; R. R. Gompcmy v. B-'ggs, 12 S. W. 331; Hargreaves v. Kimberly, 57 Am. Eep. 121; Town of Troy v. Ghesire R. Go., 55 Am. Dec. 175.</p> <p>Citing: Davis v. Fry (Okla.) 78 Pac. 180; Bye v. City of Mantako-, 1 Am. St. Rep. 673; Railroad Go. v. Lackey, 48 Am. St. Rep. 590; Mayor v. Sykes, 94 Ga. 30; Railroad Co. v. Wachter, 123 Ill. 440; Railroad Co. v. Anderson, 79 Tex. 487; Abbott v. Railroad Co., 53 Am. St. Rep. 588; Sullins v. Railroad Go. (Iowa) 7 Am. St. Rep. 503; Railway Co. v. Marley (Neb.) 13 Am. St. Rep. 483; 2 Current Law, 2043.</p>

Error from District Court, Qrady County; FrmTc M. Bailey, Judge. Action by E. Dowden against the Wheatland Grain & Lumber Company and others. From a judgment in favor of plaintiff, defendants bring error. The land involved in this controversy was allotted to Aaron Colbert, a member by blood of the Croctaw Tribe of Indians.

<p> Appeal from District Court, Grady- County; Frank M. Bailey, Judge. </p> <p>In the Matter of the Estate of C. C. Eeland, deceased. From an order of the district court setting aside a judgment of the county court against the administratrix and dismissing the proceeding, Thomas J. O’Neil, guardian ad litem, appeals.</p> <p>Citing: In re P off’s Guardianship, 7 Ind. T. 59; Hays v. Barringer, 7 Ind. T. 697; 1 Suth. Stat. Const. (2d Ed.) § 285; Lamb v. Schlatter, 54 Cal. 319; Ex parte McCardle, 74 IT. S. 506; Baltimore, P. ’& R. Ry. Co. v. Grant, 98 E. S. 398; Exchange Bank v. Peters, 144 IT. S. 570, 12 Sup. Ct. 767; Commonwealth v. Leach, 24 Pa. 55.</p>

<p>1. MUNICIPAL CORPORATIONS — Grant of Right to Use Street —Exclusive Grant. An ordinance of a municipal corporation granting' to a corporation authority to use the streets, alleys, and public grounds of a city for the purpose of constructing and operating' an electric light and power plant to furnish light and power to a city and its inhabitants confers privileges which are exclusive in their nature against all persons upon whom 'similar rights have not been conferred; and any person or corporation attempting to exercise such right, without legislative authority or sanction, invades the private property rights of the corporation to whom such franchise has been granted, and may be restrained at the instance of the owner of the franchise.</p> <p>2. MUNICIPAL CORPORATIONS — Ordinances —Subjects and Titles. The requirement of a statute that the subject of any ordinance enacted by a city council shall be clearly expressed in the title is complied with where the title calls attention to the general subject of the legislation in the ordinance, and does not tend to mislead or deceive the people or council as to the purpose or effect of the legislation, or to conceal or obscure the same.</p> <p>3. SAME — Grant of Use of Streets. The title of an ordinance reciting that its object was to grant to a certain person “the right to construct, maintain and operate an elecric light .and power ' plant” is sufficient' to carry a grant of the right to use the streets and alleys of the city for the construction of lines and poles thereon for the purpose of operating the plant.</p> <p>(Syllabus by the Court.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the State, on the relation of E. E. Reardon, against Sam Hooker, county judge. Judgment for defendant, and plain-ti££ brings error. Citing: Douglas County'v. Vinsonhaler (Neb.) 118 N. W. 1059; TJ. S. v. Hill, 120 IT. S. 169; Smith v. Townsend, 1 Okla. 111.

<p>Original action in mandamus by J. E. Ledbetter against Join? H. King, judge of the Third judicial district.</p>

<p>Error from District Court, Woodward County; B. H. Loofbourrow, Judge. ,</p> <p>T. L. 0?Bryari, County Judge of Woodward County, was "eon1 victed of wilful and corrupt conduct in office, and be brings error.</p>

<p>1, MUNICIPAL CORPORATIONS — Streets — Power’to Change Grade. The trustees of an incorporated town or village organized under the laws of Oklahoma Territory as extended in force in the state after its erection are authorized and empowered to lay out, open, grade, and otherwise improve the streets, alleys, sewers, sidewalks, and crossings therein, and to keep them in repair, and to vacate the same.</p> <p>(a) 'Such trustees are authorized in the exercise of such municipal authority to change the grade of a street.</p> <p>2, MUNICPIAL CORPORATIONS — Improvements* of Street — In- ^ junction. The jurisdiction of equity may not generally be invoked by an abutting lot owner to restrain a municipality from making upon a street previously dedicated to public use, public improvements such as paving and the construction of sidewalks, until such abutting owner has first been compensated for any consequential damages arising solely from the change of a grade.</p> <p>(a) Such abutting lot owner has an adequate remedy at law for such damages.</p> <p>(Syllabus by the Court.)</p>

Objections of Reuben M. Roddie in the matter of the initiative petition No. 3, otherwise known as the “Woman’s Suffrage Petition.” From a decision of the Secretan'- of State, he appeals.

<p>1. GARNISHMENT — Motion to Quash — Determination. A writ of garnishment issued upon a transcript of a judgment from the United States commissioner’s court at Vinita by virtue of section 2780, Ind. T. Ann. St. 1899 (section 4100, Mansf. Dig.), having been filed in the United States Court for the Northern District of the Indian Territory, a motion to quash such writ being filed under section 2103 (Mansf. Dig. sec. 2988; Gantt’s Dig. sec. 2619), the district court as successor of such United 'States -court could look alone to the record as certified by the United States commissioner, and, if on its f-a-ce it showed a valid service, proper return, a valid judgment, such motion should have been summarily dismissed.</p> <p>2. UNITED STATES COMMISSIONERS — Procedure — Pleading-Sufficiency. Filing a complaint setting out a cause of action within the jurisdiction of the United States commissioner exercising the jurisdiction of a justice of the peace, referring therein to a written contract on which the action was founded, the same not being attached or filed therewith and a good or sufficient reason for not doing so not having been given, whilst irregular, was sufficient to confer jurisdiction upon said commissioner, authorizing him to issue summons in accordance with seofcion 2716, Ind. T. Ann. >St. 1899 (section 4036, Mansf. Dig.).</p> <p>8. PROCESS — Evidence—Who May Serve — Judicial Notice. Under the laws in force in the Indian Territory prior to the erection of the state, in an action on contract for the recovery of money only, the summons could be served by a person not a party to the action, wlho was of lawful age and not interested in its result, the return thereon to be sworn to before some officer authorized by law to administer oaths.</p> <p>(a) It being set out in the complaint that the plaintiffs were a partnership composed of "W. W. England and George England, and the return being sworn to before W. W. England as a notary public, it nowhere appearing in t-he record of the proceedings before the United States commissioner that W. W. England, a party plaintiff, and W. W. England, the notary public, were one and the Same, the lower court in passing upon the motion to quash, would not take judicial notice, in the event that they were one and the same, of such fact.</p> <p>(b) In this proceeding the district court could look to the record alone as certified from the United States commissioner’s court.</p> <p>4. LIMITATION OF ACTIONS — Judgments — Garnishment. The filing of the transcript -by virtue of section 2780, Ind. T. Ann. St. 1899 (section 4100, Mansf. Dig.), in the United 'States Court for the Northern District of the Indian Territory at Yinita, took effect from the day of its filing, and was governed by the same limitations that judgments of the United States court were, to wit, the period of 10 years.</p> <p>(a) The writ of garnishment on such transcript, having been sued out within such period, was in proper time.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Mandamus by A. J. McMahan against W. L. North , Chairman of the Board of County Commissioners of Tulsa County, and others. From a judgment granting a peremptory writ, defendants bring error. • — Citing: City of Ardmore v. State ex rel., 24 Okla. 862; Lon'g v. City of Portland (Ore.) 98 Pac. 1111; Carlson v. City of Helena (Mont.) 102 Pac. 40; State ex rel. v. Millar, 21 Okla. 448.

<p> Error from District Court, Pittsburg County; Preslie B. Cole, Judge. </p> <p>Action by J. F. McMurray against the City of McAlester. Judgment for plaintiff, and defendant brings error.</p>

Appeals from District Court, Cleveland County; R. McMillan, Judge. Consolidated actions by Anna Bryan against Kenner Whit-taker Allison, Sr. Judgments for plaintiff, and defendant brings error. Briefs did not reach the reporter.

<p> Error from District Court, Garvin County, B. McMillm, Judge. </p> <p>Action by the First National Bank of Byars against J. T. Eldridge and others. Judgment for defendants, and plaintiff brings error.</p> <p>Citing: Hearne v. Ins. Co., 20 Wall. 488; Bmnard w Kellogg, 10 Wall. 383; Citizens’ Bmk v. Ark. C. é W. Co. (Ark.) 96 S. W. 997; Allen v. Bank, 120 U. S., 30 L. Ed. 573; Burton, v. Curyea (Ill.) 89 Am. Dec. 350; Second Nat. Bmk v. Waldridge, 2 Am. Bep. 408; Clay v. Gage (Tex. Civ. App.) 20 S. W. 948; Com- Nat. Bank v. Bemis (Mass.) 58 N. E. 476.</p>

<p> Error from District, Court, Creer County; G. A. Brown, Judge. </p> <p>Mandamus by A. L. Elliott against the County Election Board of Greer County. From an order granting the writ, respondent brings error.</p>

Campbell Russell filed with the Secretary of State initiative petition No. 2, state question No. 6, otherwise known as “The New Jerusalem” proposition, and Frank Dale and others filed their objections to the calling of an election thereon. From an order of the Secretary of State, overruling the objections and holding the petition sufficient, the objectors appeal.

<p> Appeal from Order of the Secretary of State. </p> <p>In the matter of Initiative State Question No. 10. From an order of the Secretary of State, there was an appeal.</p>

<p>1. COUNTIES — Powers of Board of Commissioners. A board of county commissioners can exercise such powers only as are conferred upon it by the Constitution or the statutes, or such as may arise by necessary implication from an express grant.</p> <p>2. COUNTIES — Power of Board of Commissioners — Grant of Franchise to Ra'ilroad. It is beyond the power of a hoard of county commissioners to enter into a contract and" grant a franchise to an electric street railway company to construct its line over the public highways of a county, and therein grant terms and make conditions,absolving and relieving it from the general supervision, regulation, and control conferred by the Constitution upon the Corporation Commission over such companies.</p> <p>3. APPEAL AND ERRiOR — Order of Corporation Commissjion — Remand for Additional Evidence. Where, on appeal from an order of the Corporation Commission, evidence is lacking reasonably sustaining certain material findings, but it is made to appear in the record that the same probably exists, the said order will not necessarily be reversed and the case closed, hut, where justice requires it, the same will be reversed and remanded to enable the parties to produce such evidence on which a new order may be predicated.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County, S. II. Bussell, Judge. </p> <p>Action by Mrs. Katherine Sorrels for herself and as guardian against Charles Jones and another. From a judgment in favor of defendants, plaintiff brings error.</p> <p>This was originally a suit in ejectment brought by plaintiffs in error, plaintiffs below, to recover possession of a certain tract or parcel of land' which plaintiffs claim to have been allotted to them as members of the Choctaw Tribe of Indians. The trial in the court below was upon an agreed statement of facts, which, in substance, is as follows: The enrollment of one Apesahona as a member of the Choctaw Tribe of Indians by blood was duly approved by the Secretary of the Interior on the 12th day of Decem-her; 1902. On the 19th day of December, 1904, one T. N. Dumas was appointed administrator of the estate of Apesahona, deceased, and on the 20th day of December, 1904, the said Dumas made application to the Commission to the Five Civilized Tribes at Tish-omingo to select, as an allotment in the name of and for the said Apesahona, the lands involved in this action. Said application for selection of the allotment was accepted by the Commission and the lands in controversy selected as his allotment. No further action relative to said allotment was taken until the month of March, 1905, when the Commissioner to the Five Civilized Tribes directed the members of the local land office at Ardmore to withhold any further action, for the reason that an investigation of the enrollment of the said Apesahona was being made. On or about 10 days before the 3d day of May, 1906, notice was mailed to the said Dumas of a hearing in a proceeding to cancel the enrollment of Apesahona; and on the 19th day of October, 1906, his said enrollment and the allotment made on the 20th day of December, 1904, were canceled by order of the Secretary of the Interior, upon the ground that the said Apesahona had' died prior to the 25th day of September, 1902, to wit, in the year 1899. Subsequent to the selection by the administrator of the land in controversy as the allotment of Apesahona, the same was conveyed .by Apesahona’s heirs to defendants, and it is agreed that defendants are the purchasers of said lands from his heirs, without any knowledge of the claim that Apesahona had died prior to the 2oth day of September, 1902, and that defendants never had any notice of any character of the proceeding to cancel said enrollment and allotment, until after the order canceling same had been made. No certificate of allotment or patent was ever executed and delivered to the said Dumas or the heirs of Apesahona. Blank certificates of allotment were filled out and prepared to be executed by the Commission;' but, before the same were executed, the enrollment and allotment of Apesahona were canceled by order of the Secretary of the Interior, and said certificates as prepared were marked “canceled” and never executed or delivered by the Commission. On the 8th day of November, 1906, the lands in controversy were allotted to plaintiffs, and on or about nine months thereafter certificates of allotment were issued by the proper authorities and delivered to them.</p> <p>From a judgment of the trial court in favor of defendants, this proceeding has been brought.</p> <p>Briefs did not reach the reporter.</p>

<p>1. JUSTICES OF THE PEACE — New Trial — Surprise—Jurisdiction. Where, in an action of replevin before a justice, of the peace, the justice on motion of defendant pursuant to Wilson’s Rev. & Ann. St. Okla. 1903, sec. 5037, dismissed the cause for want of prosecution, ordered the property returned or its value paid defendant, and taxed plaintiff with the cost, and where plaintiff next day, pursuant to said statutes (section 5032), filed a motion for a new trial on the ground of accident and surprise, pursuant to said statutes (section 4493), which the court sustained over defendant’s objection, and where, after trial anew in that court, defendant appealed and before trial .anew in the district court, moved to sustain the appeal, and dismiss the cause on the ground that the justice was without jurisdiction, which was overruled, held, no error; that, while the justice might have erred in holding the motion for a new trial sufficient under the statute and in granting the same, he was not without jurisdiction to entertain and pass upon said motion.</p> <p>2. APPEAL AND ERROR — Questions of Fact — Review. Where controverted questions of fact are tried to the court and the evidence reasonably tends to support the judgment, it will not be disturbed on appeal.</p> <p>(Syllabus by the 'Court.)</p>

Error from District Court, Creels County; W. L. Barnum, Judge. Action between the Board of Education of the City of Sapulpa and others and A. J. McMahan. From a judgment in favor of the latter, the former brings error.

<p>Mandamus by the St. Louis & San Francisco Railroad Company against E. F. Messenger, as clerk of the district conrt of Hughes county, and others.</p>

<p>1. INSURANCE — Notice of Loss — Conditions Precedent — Petition— Demurrer. A policy, providing that in case of loss the insured shall mail written notice to the home office at Oklahoma City within 48 hours after the hail occurred; that the company’s adjuster, after receiving such notice, shall make an estimate of such loss, and shall send his written estimate of the same to the home office and mail or deliver a copy to the insured; that, if the insured be not satisfied with such estimate, the amount of the loss may be ascertained by three competent appraisers, the assured and insurer each selecting one and the two so chosen selecting a third, and the finding of either two of them to be binding as to the amount of the loss; that, if within 20 days after such loss the insured has not received a •copy of the estimate of the adjuster, then the insured shall, within 2 days after the expiration of the said 20 days, proceed in the same manner provided, in case he- is not satisfied with the estimate of the company’s adjuster, to have the amount of the loss determined by three competent appraisers; that suit may not be maintained unless notice of such loss is given and the amount thereof thus ascertained. It is further provided that in any event if the insured failed to send to the home office the amount of his premium note, etc., by registered mail, or if the amount of the said premium note he not so mailed, within 2 days after the expiration of the said 20 days, then the company shall not be liable to the assured for any amount. Held, that a petition which sets out the policy, but contains no allegation of the giving, of the notice or of any facts excusing a failure to give one, is demurrable as not stating a cause of action.</p> <p>2. INSURANCE — Notice—Constitutional Law. Section 9 of article 23 of the Constitution prevents the abridging of the time within which rights under the law may be enforced and the requiring by contract of any notice as a condition precedent to the maintaining of an action for a breach of duts'- imposed by law.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERRO'R — Fáilure to File Briefs — Dismissal. Same as in Leavitt et al. v. Commercial Nat. Bank, infra, 109 Pac. 71.</p> <p>2. APPEAL AND ERROR — Dismissal—Settlement of Case-Made. Same as in First National Bank of Collinsville v. Daniels, infra, 108 Pac. 748.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Gourt, Oklahoma Qounty; George W. Clark, Judge. ■ </p> <p>Action by G. C. Eldridge against Y. F. Freeman. From a judgment in favor of plaintiff, defendant brings error.</p>

<p>JUDGMENT — “Default—Motion to Vacate — Unavoidable Delay. In an action filed in a county court, the answer day was July 21, 1908. July 20, 1908, counsel for defendant in another county deposited in the United States post office, postage paid, an envelope addressed to the clerk of the county court containing a motion, directed to plaintiff’s petition. In due and regular course of mail the said motion would have reached its destination in time, hut by reason of the miscarriage of the mail the same was delayed, and arrived a day late. At the time of its arrival, the court was engaged in trying the cause. Counsel for defendant, prior to the conclusion of the trial' and the rendition of judgment, asked leave to file the motion, which was by the court denied and judgment rendered as on default. Counsel for defendant filed a motion for a new trial, alleging accident and surprise, setting up the foregoing facts with a showing of defense to plaintiff’s action. This motion the court denied. Held, error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Goal County Court; B. E. Wells, Judge. </p> <p>Action by C. T. Eeese against the Chicago, Bock Island & Pacific Eailway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Le Flore County; Jas. L. Hale, Judge. Action by Octave Block and Paul Block, partners, as the Universal Metal Company, against the Cameron Coal & Mercantile Company. Judgment for plaintiff, and defendant brings error. Citing: Armsby v. Eckerly, 42 Mo. App. 299; Johnston v. McRary, 50 N. C. 369; 1 Elliott on Evidence, sec. 519: 4 Wig-more on Evidence, sec. 2430; 9 Ene. Ev. 492, 493; Gundy v. Green, 95 Cal. 630; Cummings v. Putnam, 19 N. H. 569.

<p>TRIAL — Directing Verdict. Where under the pleadings the plaintiff is entitled to recover unless a certain affirmative defense therein pleaded is 'sustained, no evidence being produced reasonably tending to support such defense, a verdict should be directed in favor of the plaintiff.</p> <p>(Syllabus by the Court.)</p>

<p>PLEADING — Unauthorized Verification — Judgment on Pleadings. An unverified answer embodying a plea..of non est factum having been filed and on the day the case was .set for tria-1, but before ■ -it was called for .trial, the defendant, without having first obtained leave of the court, having-verified the answer before the clerk of the court, the plaintiff; without moving to -strike the answer from the file moved for judgment on the pleadings, which was granted by the court. Held, that this was error.</p> <p>(Syllabus by the. Court.)</p>

<p> Error from.\ District Court, Muslcogee County; Malcolm, E. Rosser, Judge. </p> <p>Action between the Great Western Manufacturing Company and the Davidson Mill & Elevator Company. From the judgment, the Great Western Manufacturing Company brings error.</p>

<p>COUNTIES — Powers of County Commissioners — Contracts. Ona mefmber of a board of county commissioners cannot bind the county to pay for the services of’a phy&ician in attending upon the poor without first having- 'been authorized thereto by a majority of said board whilst in session. "</p> <p>(Syllabus by .the. Court.)</p>

<p> Error from District Court, Oklahoma County; George W. Clark, , Judge. </p> <p>. ' Action by H. G. Chamberlain against W. P. Daman and others. Judgment for plaintiff, and defendants bring error.</p> <p>Citing: Bunn v. Jetmore, 70 Mo. 228; Board of Education v. Sweeney, I S. D. 642; Martin v. Hornsby, 55 Minn. 187; People v. Hartely, 21 Cal. 585; Allen v. Marney, 65 Ind. 398; Sharpe v. United States, 28 Am. Dee. 676; Gill v. Thomas, 54 Ala. 414; Hessel v. Johnson, 63 Mich. 623; Fletcher v. Austin, 11 Yt. 447.</p> <p>Citing: State v. McDonald, 40 Pac. 312; Dillon v. Anderson, 43 N. Y. 231; Parker v. Bradley, 2 Ill. 584; Haslcens v. Lombard, 16 Me. 140; Culler Whitiemore, 10 Mass. 442; Johnson v. Weatherwax, 9 Kan. 75; McIntosh v. Hurst, 12 Pac. 647; Señor v. Maschinot, 31 S. W. 481; City of Peering v. Moore, 41 Am. St. Eep. 534; Williams v. Mar>shall, 42 Barb. 524; Eureka Sandstone Co. v. Long, 39 Pae. 446; Young v. Bank & Trust- Co., 63 Pac. 247; Stinson Mill Co. v. Beily, 42 Pac. 1072; Kurtz v. Forquer, 29 Pac, 413; CockHll v. Davie, 14 Mont. 131; Woodrow v. Calkins, 13 Mont. 363; John-r son v. Johnson, 31 Ohio St. 131.</p>

<p> Error from District Oourt, Okmulgee County; John Caruthers, Judge. </p> <p>Action by T. F. Randolph, trustee, against the Meridian Oil Company. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Fire Ins. Co. v. Broadbent (Minn.) 79 N. W. 676; Brown v. Chase, 1 Walker’s Oh. (Mich.) 43; Lindsey v. Am. Mortgage Co. (Ala.) 11 So. 770; A. & E. Ene. L. (2d. Ed.) vol. 23, p. 1028; Pomeroy, Eq. Jurisp., vol. 5, sec. 97, p. 173.; Union Trust Co. v. Charlotte Electric Co. (Mich.) 116 N. W. 379.</p>

<p> Error from Kay County Court; Claud Duval, Judge. </p> <p>Action by John H. Collins against the Kaw City Mill & Elevator Company and others. Judgment for defendants, ^tid plaintiff brings error.</p> <p>Citing: Railroad Co-, v. Hoivard, 7 Wall. (U. S.) 409; Hendrick v. Lindsay, 93 U. S. 143; Miliana v. Tognini, 7 Pac. 279; Maxey v. Fire Ins. Co-., 55 N. W. 1130; Kcmfman v. TJ. 8. Nat. Bank, 48 N. W. 738; Welch v. Fitterling, 75 N. W. 731; Cooper v. Foss, 15 Neb. 516; Rohman v. Gaiser (Neb.) 73 N. W. 923; Shamp v. Meyer, 20 Neb. 223; Brown v. MarJclmd, 52 Pac. 598; Nat. Bank v. Grand Lodge, 89 U. S. 124; Constable et al. v. Nat. Steamship Co., 14 Sup. Ct. (U. S.) 1080; Plano Mfg. Co. v. Burrows, 19 Pae. 810.</p> <p>Citing: Wright v. Terry, 23 Fla. 160; Jefferson v. Ascii, 55 N. W. 604; 9 Cyc. 380; Union By. Storage Co. v. McDermott, 55 N. W. 607; German State Bank v. N. W. Water & Light Co. (Iowa) 74 N. W. 685; Vrooman v. Turner, 69 N Y. 280.</p>

<p>MUNICIPAL CORPORATIONS — Bonds — Constitutional Provisions— “Public Utilities.” The first paragraph oí the syllabus in T. N. Coleman v. W. B. Frame, County Clerk, et al., infra, 109 Pac. 928, is made the syllabus in this case.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court of Kingfisher County; A. H. Huston, Judge.</p> <p>Action by Henry J. Schmidt against J. P. Love and others. Judgment for plaintiff, and defendants bring error.</p> <p>Citing: Walters v. Bailiff (Okla.) 61 Pac. 1070; Yanlc v. Bordeau (Mont.) 58 Pac. 42; Banning v. Morleau (Cal.) 32 Pac. 772; Lake v. Morris, 30 Conn. 201.</p>

Error from District Court, Muskogee County j John H. King, Judge. Ac.tion by Felix L. Winkler against Ed Jefferson, guardian.. From an order granting a temporary injunction, defendant brings error. Ed Jefferson, plaintiff in error, was appointed guardian for one Rebecca Moore, a minor Creek freedman, by the United' States Court for the Western District of the Indian Territory prior to the admission of the state.

<p>TRIAL — Argument of Counsel — Misconduct. Where counsel in argument makes statement of a material fact not in evidence against the objection of the other party, he violates the right of a fair trial, and where the trial judge fails to pass squarely on the objection, and, if sustained, fails to admonish the jury to disregard such statement as not in evidence, we must reverse, unless this court can ascertain from the record that no harm resulted.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Seminole County ; Robert M. Rainey, Judge. Action by Benjamin F. Bruner and others against Elijah Sanders and others. Judgment for defendant, and plaintiffs bring error. Plaintiffs in error on the 12th day of January, 1909, brought this action in the district court of Seminole county against defendants in error for possession of a certain tract of real estate situated in said county.

Error from District Court, Noble County; B. F. Hainer, Judge. Action by Samuel H. Moore against the Atchison, Topeka & Santa Fe Eailway Company. From a judgment in his favor plaintiff brings error. On rights of trespassers on trains: 7 Thomp. Neg., secs. 3304, 3308, 3316; Railroad Go. v. Daugherty, 53 Ill. App. 282; Railroad Go. v. Fant-zinger (Tex.) 49 S. W. 6'77; 6 Thomp. Neg., secs. 3172, 3177, 3178; Garter v. Ry. Go., 49 Am.

Error from District Court, Logan County; John II. Burford, Judge. Action by John Ketis against the Ft. Smith & Western Eail-road Company. From a judgment in favor of plaintiff, defendant brings error. Defendant in error, hereinafter called plaintiff, brought this action in the district court of Logan county against plaintiff in error, hereinafter called defendant, to recover damages for certain alleged personal injuries.

Error from District Court, Kiowa County; Frank E. Gillette, Judge. Action by the First National Bank of Hobart against Leeper, Graves & Co., and others. Judgment for plaintiff, and defendants bring error. On validity of replevin bond: Owen v. Togue, 29 N. E. 784; Eenrie v. Buck, 18 Kan. 228; Edwards v. Ellis, 27 Kan. 344; Rayes v. Clason, 20 Kan. 120.

<p> Error from District Court, Pontotoc Dounty; Joel Terrell, Judge. </p> <p>Action by R. H. Fuller against the German American Insurance Company. From a judgment in favor of plaintiff, defendant brings error.</p> <p>Citing: Tates v. Thomason, 83 Ark. 126; Western Assurance Co. v. Altheimer, 58 Ark. 575; Couth. Ins. Co. v. Parker,. 61 Ark. 207; Pelican Ins. Co. v. Willcerson, 53 Ark. 353.</p> <p>Citing: Insurance Co. v. Kearney, 180 U. S. (45 L. Ed. 460); Jones v. Insurance Co., 38 Fed. 19; Insurance Co. v. Jones, 15 S. W. 1034; Insurance Co-, v. Heflin, 60 S. W. 393; McNutt v. Insurance Co., 45 S. W.'61; Insurance Co. v. Bedding, 15 C. C. A. 621; Insurance Co. v. Cummings, 78 S. "W. 716; Insurance Co. v. Pearlstone, 45 S. W. 832; Insurance Co. v. Woolverton, 102 S~. W. 226.</p>

<p>RAILROADS — Injuries to Animal? — Fences. Where a railway company is not required either toy statute or contract to fence its right-of way, hut does so, failure to keep the fence in such condition as will prevent cattle from going upon its right of way does not subject the company to the payment of damages for the killing of trespassing cattle or stock by the operation of trains, unless the killing is shown to have 'been negligently done.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Injuries to Stock — Fences. Syllabus same as syllabus to case of Davis Bros. & Burke et al. v. Le Flore, infra, 110 Pao. 782.</p> <p>(Syllabus -by the Court.)</p>

Error from District Court, Oldahoma County; Joseph Q. Lowe, Judge. Action between B. M. Powel] and others and James E: Nichols and others. Motion to .set aside levy of execution upon a leasehold estate of plaintiffs in error. From an order overruling the motion, they bring error. Citing: Farnum, v. Ilefner (Cal.) 21 Pac. 955; Medina Temple Co. v. Currey, 58 Ill. App. 433; Smith v. Putnam, 3 Pick.

<p> Error from, District Court, Muskogee County; B. McMillan, Special Judge. </p> <p>Action by Sidney C. Cbapple and another against Samuel E. Gidney. Judgment for plaintiffs, and defendant brings ertor.</p> <p>Briefs did not reach the reporter.</p>

Error from Distmct Court, Nolle County; Batywrd T. limner, Judge. Action by E. E. Wade, trustee in bankruptcy of Flemming & Eyan, against J. W. Crancer and another, doing business as J. W. Crancer & Co. From a judgment for plaintiff, defendant brings error.

<p> Appeal from Corporation Commission. </p> <p>From an order of the Corporation Commission, the Gulf, Colorado & Santa Fe Eailway Company and others appeal.</p>

<p>CORPORATION COMMISSION — Orders—Violation by Carriers — Contempt — Burden of Proof. In the proceeding against a railway company lor contempt for violating an order of the State Corporation Commission, where the railway company admits the act of violation with which it is charged, but attempts to defend against the proceedings upon the ground that said act was committed through a misapprehension of the order or as a result of a mistake, the burden is upon the company to establish by competent evidence that its act complained of resulted from such cause.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Gourt, Logan Countyj J. M. Sandlin, Judge. Mandamus by the State, on relation of one Calvert and others, against A. O. Farquharson. From a decree directing the issuance of a peremptory writ, respondent brings error.

<p>INDIANS — Cherokees—Rights of Intermarried Whites — Allotted Lands. White persons who intermarried with -Cherokees after November 1, 1875, when a Cherokee law became effective which declared that such person by intermarriage acquired no right of soil or interest in the vested funds of the Cherokee Nation, are not entitled to share in the allotment of the la-nds or in the distribution of any of the funds belonging to such nation, and are not entitled to be enrolled for that purpose and a sale of improvements, consisting of cleared land in the Cherokee Nation and putting the same in cultivation by such persons, to a person entitled to take said lands by allotment, does not constitute sufficient consideration to support a promissory note executed in payment thereof.</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Olcmulgee County; John Caruthers, Judge. </p> <p>Action by John W. IColachny against Robert Galbreath and others-. Judgment for defendants, and plaintiff brings error.</p> <p>—Uiting: Bldred et al. v. Okmulgee Loan <& Trust Go., 22 Okla. 747; Monfort v. Lanyon, 67 Kan. 311; Alleghany Oil Go. v. Snyder, 106 Fed. 764, 45 C. C. A. 604; Brick Go. v. Bailey, 76 Kan. 42; Dickey v. Brick Go., 69 Kan. 106; Brown v. Fowler, 63 N. E. 79; Central Ohio Nat. Gas. Go. v. Eckert, 71 N. E. 282; Consumers Gas Trust Go. v. Worth, 71 N. E. 489; Detlos v. Holland, 57 Ohio, 492; McMillan v. Phila. Go., 28 Atl. 220; Northwestern, elc., Go. v. Tiffin, 54 N. E. 77; Mills v. Hartz, 94 Pae. 142.</p> <p>Citing: Jones, Landlord & Ten. see. 427; Rease v. Kittle, 49 S. E. 150; 3 Page, Cont. secs. 1616, 1640; Frank v. Stratford-Hancock, 77 Pae. 139; Eclipse Oil Go. v. South Penn. Oil Co., 34 S. E. 923; Maryland. Tel. & Tel. Go. v. G. Simons Son's Go\, 6'3 Atl. 315; Taussig v. Corbin, 142 Fed. 660; Shubert v. Woodward, 167 Fed. 47; Meason v. Koine, 63 Pa. 335; Tennessee Oil, Gas & Mineral Go. v. Brown et al., 131 Fed. 696; Poe et al. v. Elrey, 233 Ill. 56, 84 N. E. 46; Watford Oil & Gas Go. v. Shipman, 233 Ill. 9, 84 N. E. 53; Federal Oil Go. v. Western Oil Go., 121 Fed. 373; Brookyn Base Ball Olub v. McGuire, 116 Fed. 782; Fowler Utilities Go. v. Gray, 79 N. E. 897; Huggins v. Daley, 99 Fed. 606; Ohappel v. Kansas Tit. Bmck Go., 70 Kan. 723, 79 Pae. 666; Payne v. Newall, 99 Pae. 476; Pomeroy on Cont. sees. 162, 163, 465; Jenning-Heywood Oil S. Go. v. Houssiere L. Oil Company (La.) 44 South. 501; Chadwick v. Ghadwick, 121 Ala. 580; Nick's Heirs et al. v. Rector, 4 Ark. 279; Jordon v. Deaton, 23 Ark. 704; Bodine v. Glading, 21 Pa. St. 50; De Qordova v. Smith, 9 Tex. 129; Moore’s Administrators v. Fitz Randolph, 29 Am. Dec. 208; Wood v. Dickey, 17 S. E. 818; M., K. & T. Ry. Go. v. Bagley (Kan.) 56 Pae. 759; Pomeroy Eq. Jur., vol. 4, sec. 1405; Waterman on Specific Performance of Contracts, sec. 196; Iron Age Pub. Go. v. W. U. Tel. Go., 83 Ala. 498.</p>

<p>1. JUSTICES OF THiE PEACE — Judgment—Action to Review — Stat. utory Provision. .Section 6066, Comp. Laws Okla. 1909, which provides, “a judgment rendered, or final order made, by a justice of the peace, or any other tribunal, board or officer exercising judicial functions, and inferior in jurisdiction to the district court, may be reversed, vacated or modified toy the district court,” relates to 'review by appeal, and does not authorize a review of proceedings had before a justice of the peace by an original proceeding in the district court.</p> <p>2. JUSTICES OF THE PEACE — Judgment — Equitable Relief— Scope of Remedy. A court of equity may interfere to order a new trial after judgment by default, before a justice of the peace, when it is made to appear that the plaintiff in said action at law obtained said judgment in advance of the time when it otherwise would have been rendered toy violating a stipulation for a continuance, and that the defendant had a good defense to said action.</p> <p>(Syllabus by the Court.)</p>

<p> Err oí' fi'OTn District Cowl, McIntosh County; Preslie B. Cole, Judge. </p> <p>Action by Charles Whitaker, as trustee, against the Crowder State Bank. From a judgment in favor of defendant, plaintiff brings error.</p> <p>Citing: Sec. 5179, Mansf. Dig. Laws Ark.; See. 5933, Snyder’s Comp. Laws Okla. 1909; Malloy v. Benway, 34 Wash. 315; Boatmen’s Bank v. Fritz-len, 135 Fed. 650; Jones v. Carnes, 17 Okla. 470, 89 Pac. 652; N. Y. County Nat. Bank v. Massey, 192 U. S. 138, 48 L. Ed. 380.</p>

<p> Error from District Court, Washington County; T. L. Brown, Judge. </p> <p>Action by Jesse L. Harnage against Annie M. Martin and another. From a judgment in favor of plaintiff, defendants bring error.</p>

<p>PARTNERSHIP — Actions—Process—Judgment. Where an action is against the members of a copartnership for a partnership debt, and one or more of such partners shall have been served with process, but not all of them, the plaintiff may proceed with his action against the defendants served, and, if he recover in the action, he may have judgment entered against all the defendants jointly indebted, whether served with process or nr t, but such judgment cannot be enforced against the defendants not served, except against the copartnership property.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Canadian County Court ; Ii. L. Fogg, Judge. </p> <p>Action by the El Eeno Mill & Elevator Company against J. E. Jones. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Gwrvin County Court; W. B. M. Mitchell, Judge.</p> <p>Replevin by the Freeman-Sipes Company against Jabe Henson. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Decision on Former Appeal — Law of Case. A question decided by the Supreme Court, on a former appeal, becomes the law of the case in all its stages, and will not ordinarily be reversed upon a second appeal of the same case when the facts are substantially the same'.</p> <p>2. SAME — Decisions of Territorial Supreme Court. The same rule applies where the former decision was made bv the late territorial Supreme Court; this court being the successor of that court.</p> <p>('Syllabus by the Court.)</p>

<p>1.- RAILROADS — Orders of Corporation Commission — Train Service —Adequate Facilities — Interstate Commerce. Where a railroad company has provided adequate and reasonable facilities for the accommodation of traffic to and from a certain place, an order of the Corporation Commission, requiring it to stop another train engaged in interstate commerce at said point is unreasonable.</p> <p>2. RAILROADS — “Adequate Facilities” — Definition. The term “adequate facilities” is not capable of exact definition, .being a relative term, and calls for such facilities as may be fairly demanded. regard being had to the size of such station br place, the extent of the demand of transportation, its relative location, to other places, the cost of furnishing additional accommodations asked for, and all other facts which would have a bearing upon the question of convenience and cost (M,, K. & T. Ry. Co. v. Town of Norfolk et a!., 25 Okla. 325, 107 Pac. 172.)</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, McIntosh■ County; Erodio B. Cole, Judge. </p> <p>Action by Margaret Zufal], administratrix of Oscar 0. Zufall, or Otto Zufall, deceased, against Masterson Peyton. From a judgment in favor of defendant, plaintiff brings error.</p> <p>On necessary pleading for rescission: Pugh v. Stigler, 21 Olda. 854.</p> <p>On applicability of doctrine of caveat emptor; Maupin on Marketable Title to Real Estate, pp. 82, 83; 24 Cyc. pp. 65, 72; Thompson v. Tolmie, 2 Pet. 157.</p>

<p> Error from District Gourt, Ouster County; J. B. Tolbert, Judge. </p> <p>Eeplevin by Samuel Wattenbarger against H. J. Hall. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action between John Monnington and Anna Cotteral. From, the judgment, Monnington brings error.</p>

<p>APPEAL AND ERROR — Petition in Error — Necessity for. The filing of a purported case-made in the Supreme, Court institutes no action therein, in the absence of a petition in error, required by Wilson’s Rev.- & Ann. 'St. 1903, sec. 4739.</p>

Error from District Court, Rogers County; T. L. Brown, Judge. Action by J. C. Smith and others against the Board of Commissioners of Eogers Connty. Judgment for defendants, and plaintiffs bring error. On necessity of pleading facts: Railroad Co. v. Woods (Ala.) 7 L. E. A. 612; Smith v. Kaufman, 3 Okla. 571; Callahan v. Brod-erich, 124 Cal. 80; Byington v. Gom’rs Saline Co., 31 Kan. 654.

Error from District Court, Grant County; W. M. Bowles, Judge. Petition by Ed. Brazell and others for mandamus to P. W. Zeigler, as county clerk of Grant county. From a judgment sustaining a demurrer to the petition, petitioners bring error.

<p> Error from District Court. Ouster County; James B. Tolbert, Judge. </p> <p>Action by Chandler B. McKennon against the Clinton National Bank. Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Wilson’s St. 1903, eh. 50. secs. 5, 10, 11, 18; ch. 63, secs. 12, 13; Buxlon v. Merc. Co., 18 Olda. 288; 28 Am. & Eng. Ene. L. 686.</p>

Action by John A. Jacobs against George B. Roderick and another, in which the First National Bank of Holdenville intervened, md from a judgment for plaintiff, directing that intervener take nothing against plaintiff but for judgment against defendants, the bank appeals. On motion to dismiss.

<p> Error from Kay County Court; Claude Duval, Judge. </p> <p>Action by S. G. Jackson against Maude Lynn and Teddy Lynn. Judgment for plaintiff, and defendants bring error.</p>

<p> 'Error from Superior Court, Oklahoma Countyj A. N. Mv/nden, Judge. </p> <p>Action by the Palmer-Gregory Chiropractic College against Charlott D. Hart. From a judgment sustaining a demurrer to the petition, plaintiff brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by R. P. Elliott, as executor of the estate of Cornelius D. Perryman, deceased, against Peter Snyder. From an order denying defendant’s motion to dissolve an attachment, he brings error. On motion to dismiss.

<p> Error from Atoka County Court; J. II. Linebaugh, Judge. </p> <p>Action between James D. Lankford and A. D. Wallace. From the judgment, Lankford brings error.</p>

<p> Error from Kay County Court; Claude Duval, Judge. </p> <p>Action between James M. Coleman and George Eaton. From the judgment, Coleman brings error.</p>

<p>Supplemental opinion.</p>

<p>MANDAMUS — Right to Writ — Adequate Remedy at Law. Where relator had an adequate remedy in the Supreme Court after determination of an appeal on the death of the defendant to have the cause revived and to compel the heirs of the defendant to put relator in possession of the property in controversy, which on motion the trial court refused to do,' he can not maintain mandamus to compel such action by the trial court.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Kingfisher County; A. H. Huston, Judge. Action between A. G. Edwards and others and W. N. Montgomery and'another. From the judgment, Edwards and others bring error. No briefs reached the reporter.

<p>1. APPEAL AND ERROR — Cases Pending in Ind. Ter. Courts— Procedure. Under the procedure of the Territory of Oklahoma in force in the state by virtue of sec. 2 of the ‘Schedule to the Constitution, a proceeding in error may be maintained in this court 'by any proper party to review the action of the trial court as to cases pending in the United States Court of the Indian Territory at the time of the erection of the state, and thereafter, having been transferred to the proper state court, determined.</p> <p>2. APPEAL AND ERROR — Record—Case-Made. A case-made is .not a part of the record of the trial court.</p> <p>(a) A case-made becomes a part of the record in a proceeding in error, its settling, certification, attesting, etc., being preliminary to the commencement of such proceeding in the appellate court.</p> <p>OSyllaJbus by the Court.)</p>