Volume 27 — Oklahoma Reports

<p> Error from District Court, Hughes County; John Cwrutliers, Judge. </p> <p>Action by the State, on the relation of W. P. Langston, County Attorney, against P. W. Gardner, County Judge. Judgment for plaintiff, and defendant brings error.</p> <p>Citing State ex rel. v. Hooker, 26 Olda. 460, and Eldridge v. Salt Lake County (Utah) 106 Pac. 939.</p>

<p>APPEAL AND ERROR — Dismissal—Failure to Serve Case-Made. A party desiring to appeal has three days hy statute in which to serve the case-made after the judgment or order appealed from is entered, and unless such, ease-made is served within that time, or within an extension of time allowed hy the judge or court within said time, the case will not he considered in. this court.</p> <p>(Syllabus hy the Court.)</p>

<p>1. CARRIERS — Passengers—Ejection—Signing of Tickets. Plaintiff purchased a first-class, round trip, nontransferable ticket, which contained on its face a requirement that he must sign it in ink, and a proviso that, if presented for passage by other than the original purchaser, the same was void; also, a line for his signature with a line for the signature of the agent as witness. Without being signed said ticket was nonored ror plaintiff’s going passage. On his return he was ejected from the train because said ticket was not signed. There was no evidence showing plaintiff had refused to sign the same. Held, even if essential to the validity of the ticket, plaintiff’s signature was waived by the company, and his ejection was wrongful.</p> <p>2. PRINCIPAL AND AGENT — Acts of Agent — Exemplary Damages. Under the decisions controlling in the Indian Territory, exemplary or punitive damages were not allowable against the principal, unless the evidence showed that the principal participated in the wrongful act of the agent expressly or impliedly, by his conduct authorizing or approving it either before or after its commission, and, where there is a total absence of such evidence, an instruction authorizing a jury to allow plaintiff such damages is erroneous.</p> <p>3. CARRIERS — Passengers—Ejection—Damages. In an action by a passenger for wrongful ejection from a train, plaintiff’s losa of time cannot be considered in assessing his damages, in the absence of evidence as to the value of his time.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; G. W. Clark, Judge. Action by Thomas J. Bailey againt Daniel W. Hogan and others. From an order granting plaintiff’s motion for a new trial, defendants bring error.

<p> Error from District Court, Pontotoc County; A. T. West. Judge. </p> <p>Action by the Roff Oil & Cotton Company against U. G. Winn. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Pottawatomie County; W: N. Mdben, Judge. </p> <p>Action by Florence K. Bleuer against Robert P. Bleuer. Judgment for plaintiff. Defendant brings error.</p> <p>Citing: Mayer v. Mayer, 154 Mich. 386; Lynde v. Lynde, 181 U. S. 186; Id. (N. Y.) 56 N. E. 979; Dow v. Blake (Ill.) 39 Am. St. 156.</p>

Error from District Qourt, Cfreer Qounty; O. F. Irwin, Judge. Action by James A. Powers and others against B. F. Van Dyke and others. Judgment for defendants, and plaintiffs bring error. No briefs reached the reporter.

Error from District Court, Oklahoma County; J. J. Carney, Judge. Application, by G. W. Carico and others for writ of mandamus to J. W. Riley, county clerk of Oklahoma County. From a judgment awarding the writ, the defendant brings error. Copies of all briefs did not reach the reporter.

<p>1. QUO WARRANTO — Scope of Jurisdiction — Constitutional Provisions. The Constitutional Convention by providing in article 7, sec. 2, Const., that the Supreme Court, and in section 10 of the same article that the district courts, shall have power to issue writs of quo warranto, looked rather to the substance than to the form, and simply meant not so much to give those courts power to issue writs of a prescribed form, but to solemnly fix the ancient remedies secured by that writ, and leave it to the Legislature to prescribe any new process or procedure to invoke those remedies in the courts, and to amplify and extend the remedies theretofore obtainable in the form of the ancient writ.</p> <p>2. ELECTIONS — Preservation of Ballots — Statutory Provisions— Contest — Ballots as Evidence. That part of Sess. Laws Olcla. 1905, c. 17, art. 1, sec. 8, which provides that “said ballot package shall be preserved by the county clerks in some secure and safe place,” is not mandatory. Where the ballots are preserved so that their identity is assured, they can be counted during a contest; and they are undoubtedly better evidence of the vote cast than the returns, and should prevail where there is a difference. But, before a recount of the ballots should be allowed to rebut the presumption of the correctness of the official returns, it should be proved satisfactorily that the ballots have not been tampered with since the election, and that those offered in evidence are the identical ones cast.</p> <p>3. SAME — Sealing of Ballots, That part of Sess. Laws Okla. 1905, c. 17, art. 1, sec. 8, which provides that “all of the ballots counted and one certificate, one poll book and one tally sheet shall be securely sealed in a stout paper or muslin envelope or bag,” is not mandatory, and when the ballots at the' close of the count wore placed in a large paper envelope, and the envelope was not sealed with the names of the election judges written across the seal, but was folded over at the end and • sewed through with a needle and twine string, and the envelope containing the ballots was placed in the box and locked, and the ballots produced in court were the identical ballots voted by the voters of the precinct in question, and in the identical condition that thejr were when placed in the envelope by the election officers of the precinct, held, that the court did not err in admitting the same in evidence to rebut the presumption of the correctness of the official returns.</p> <p>4. ELECTIONS — Exclusion of Mutilated Ballots — Statutory Provisions. That part of Sess. Laws Okla. 1905, e. 17, sec. 8, which provides, “If in the canvass of the votes, any ballot is found not endorsed with the initials of the poll clerks as provided, and any ballots which bear any distinguishing mark, ur on which any writing appears with pen or pencil, and any ballot upon which the judges are unable to agree as to how it shall be counted, the same shall not be counted but shall be- designated as mutilated ballots and shall be preserved and kept separate from the ballots counted. * * * ” is mandatory, and all ballots which do not comply therewith were properly excluded by the court as evidence to rebut the presumption of the correctness of the official returns.</p> <p>(Syllabus by the Court.)</p>

<p>1. PUBLIC LANDS — State Land Office — Expenses—Funds , Avail- ' able. Under the terms of the' enabling act (Act June 16, 1906, • c. 3336, 34 Stat. 267),' the' state is not prohibited from using a part of the proceeds of the’ sale of the lands granted by the federal government to the state of Oklahoma for,the State University and University Preparatory School, normal schools, the Agricultural and Mechanical College, and the Colored Agricultural and Normal University, penal institutions, and public buildings, and for the support of the common schools, or rentals therefrom, to pay the expenses of the sale or leasing thereor.</p> <p>2. ' SAME — Common School Fund — Enabling Act. Under the provisions of the enabling act, the state is not prohibited from using any of the interest derived from the $5,000,000 donated to the state for the use and benefit of the common schools in lieu of sections 16 and 36 and other lands of the Indian Territory, or the income from the permanent school fund as constituted by- section 2 of article 11 of the Constitution-to pay the expensen of the loaning and investing of the same.</p> <p>3. SAME — Constitutional Provisions.. Under, the provisions of sections 2 and 3 of article 11 of the Constitution, the Commissioners of the Land Office are not permitted to utilize any portion oj. the interest derived from the $5,000,000 donated to the state by the federal government for the use and 'benefit of the common schools in lieu of sections 16 and 36 and other lands of the Indian Territory, or the income of the permanent school fund, as constituted by section 2 of article 11 of the Constitution, in order to defray the expens es of loaning or investing such permanent fund.</p> <p>3 (a). Under the provisions of section 3 of article 11 of the Constitution, the Commissioners of the Land Office are permitted under the rules and regulations as prescribed by the Legislature to utilize a portion of the rentals derived from the lands granted the state by the federal government for the common school fund in order to defray the expenses of leasing the same.</p> <p>4. PUBLIC LANDS — State School Lands — Sale and Lease — Expenses. A portion of the proceeds of the sale of the lands granted to the state by the federal government for the State University, the University Preparatory School, normal schools, the Agricultural and Mechanical College, and the Colored Agricultural and Normal University by the terms of the enabling act and the provisions of the Constitution of the state, under rules and regulations as prescribed by the Legislature, may not be utilized to pay the expenses of the sale thereof.</p> <p>4 (a). A portion of the proceeds of the sale of the lands granted to the state by the federal government for penal or Charitable institutions and public buildings by the terms of the enabling act and the provisions of the Constitution of the state, under rules and regulations to be prescribed by the Legislature, may be utilized to pay the expenses of such sales.</p> <p>4 (b') A portion of the rentals derived from the leasing of said penal or charitable and public building'Uand may be UKe-wise utilized to pay the expenses of the renting of the same.</p> <p>5. SAME — Employees. The Commissioners of the Land Office, under rules and regulations continued in force in the state by virtue of section 10 of the enabling act, until the Legislature of the state prescribes rules and regulations are authorized to determine the number of employees necessary for the leasing of the public lands, fix their salaries and pay them or cause them to be paid out of the rentals derived therefrom, together with the expenses incident to such leasing, without an appropriation made as required by section 55 of article 5 of the Constitution.</p> <p>5 (a). When the Legislature of the state acts and prescribes rules and regulations for the leasing of such lands, the Commissioners of the Land Office will not longer be authorized to determine the number of employees necessary for the leasing of said lands or any other department of said office, and ,to fix their salaries.</p> <p>5 (b). The Legislature of the state in prescribing rules and regulations for the Commissioners of the Land Office cannot delegate its authority to said board.</p> <p>6. PUBLIC LANDS — School and University — Sales and Investments —'Expenses. It is neither permissible for the Commissioners of the Land Office, either with, or without an enactment of the Legislature, to utilize any part of the proceeds of the rentals derived from the leasing of the lands granted by the general government to the state for the use and benefit of the common schools, the State University, University Preparatory School, normal schools, Agricultural and Mechanical College, and the Colored Agricultural and Normal University, in order to. pay the expenses of the sale of said lands, or of loaning, investing, or reinvesting the permanent school fund.</p> <p>(Syllabus by the Court.)</p>

Error from District Gourt, Garber Gountyj S. E. Russell, Judge. Action by J. E. McCarty and others against J. H. Cain and others. Judgment for defendants, and plaintiffs bring error.

<p>1. APPEAL AND ERROR — Review—Case-Made—Time of Service. A purported case-made, ■which is not served within three days after the judgment or order appealed from is entered or within an extension of time duly allowed, is a nullity, and cannot 'be considered by this court.</p> <p>2. t APPEAL AND ERROR — Review—Case-Made as Transcript. Where a certificate to a case-made of a judge of a .county court who is also acting as clerk thereof embodies the essentials of a certificate to a transcript of the record, this court will consider the assignments of error alleged which appear on the face of the record proper, though the case-made may fail by reason of lack of service.</p> <p>. JUDGMENT — Res Judicata — Pleading—Sufficiency of Answer. An answer which sets up a former adjudication in bar of the pending action showing that the former suit wias for the same cause of action between the same parties and the judgment rendered therein was on the merits of the case by a competent court with jurisdiction of the parties and the subject-matter of the action, and that the judgment rendered therein was still in force and effect, and had not been appealed from, is good, and error is not committed in overruling a demurrer filed thereto.</p> <p>(Syllabus by the Court.)</p>

<p>1. COURTS — Cases Pending Before Statehood — Decisions of U. S. Supreme Court Controlling. As to actions existing and pending in the courts of Oklahoma Territory at the time of the erection of the state, the decisions of the Supreme Court of the United States as applicable thereto are binding on the state courts in the determination of such cases.</p> <p>2. INSURANCE — Waiver of Conditions by Agent — Restrictions in Application — Effect. Under the decisions of said court, restrictions inserted in an application for insurance, which by its terms becomes a part of the insurance contract and restricts the power of the agent to waive any condition therein contained, apply to conditions which relate to the inception of the contract as well as to matters arising subsequent to its execution.</p> <p>3. INSURANCE — Action on Policy — Estoppel to Urge Misrepresentations in Application. In an insurance policy containing a clause providing that: “This policy is based on an application of the insured on file with this company which is referred to a» forming part of this policy, and it is understood that no other representations or statements have been made to the company or its agent than those written on said application, said application with everything therein contained, shall be a continuous warranty by the insured” — although the soliciting agent of' the assurer made the estimates for the assured and inserted the same in the application, the same then being read over by said agent to the assured who signed the same, under the decisions of the Supreme Court of the United States, the assurer is not estopped from setting up misrepresentations made in said application to have said contract rescinded.</p> <p>(Syllabus by the Court.)</p>

<p>1. ANIMALS — Running at Large — Territorial Statutes — Extension to ■ State. Article 1 of chapter 1 of the Session Laws of the Territory of Oklahoma of 1903 was extended in' force in the state upon its admission into the Union; and toy section 1 thereof every owner of swine in the state was required to restrain them at all times and seasons of the year from running at large.</p> <p>2. ANIMALS — Running at Large — Construction of Statutes. By sections 1, 2, and 3 of an act of the Legislature approved May 21, 1908, entitled “An act to regulate and restrain the running at largo of domestic animals” (Sess. Laws 1907-08. p. 22, c. 4, art. 2), the board of county commissioners of any county of the state where stock were not restrained at the time of the adoption of the Constitution are Authorized to exempt their -county or any stock district thereof from the provisions of said section 1 of the act of 1903, upon the presentation, after the approval of said act, of a written petition signed by a majority of the legal voters of such county or district as shown toy the legal votes of such county or district cast at the election held in September, 1907.</p> <p>3. SAME — Exemption from Operation of Statute — Validity. An order exempting certain portions of a county from the operation of said law made by a board of county commissioners without a petition having been filed therefor subsequent to the passage and approval of the act of May 21, 1908 (Sess. Laws 1907-08, c. 4), is void.</p> <p>4. SAME — Procedure. Where it is desired to exempt certain localities of a county from the operation of said law, the proper procedure is to firat have the county divided into stock districts as is provided by section 3 of the act of 1903 (Sess. Laws 1903, c. 1), and thereupon to file a petition of the legal voters of such district as is provided by section 1 of the act of IVtay 21, 1908 (Sess. Law's 1907-08, c. 4).</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Gowt, Stephens County; J. B. Tolbert, Judge. </p> <p>Action by the Miners’ Bank of Joplin against G. W. Vaught. Judgment for plaintiff. Defendant brings error.</p> <p>Citing Jones v. Bcdsley & Rogers, 25 Okla. 344, and Continental Gin Co. v. Huff, 25 Okla. 798.</p> <p>Citing Strange v. Crismon, 22 Okla. 841, and Great Western Mfg. Co. v. Richardson, 57 Kan. 661.</p>

Error from District Court, Garfield County; P. C. Simons, Judge Pro Tem. Action by Mary Wade and others against the First National Bank of Watonga and others. Judgment for plaintiffs, and defendants bring error. , — Citing Forbes v. First National Bank, 21 Okla. 206. —Citing: 1 Page on Contracts, 116; De Camp v. Mamma, 29 Ohio St. 467; Yakima Valley Bank v. McAllister (Wash.) 1. L. R. A. (N. S.) 1075; Green v.'Wilkie, 98 Iowa, 74; Gibbs v. Dinabury, 22 Mich. 478.

<p>BANKS AND BANKING — National Banks — Excessive Loans — Liability of Directors. In an action by a national bank to recover damages sustained by it in consequence of excessive loans made by former directors, in violation of section 5239 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 3515), the issues proper to be submitted to a jury are (1) whether the loans made were made at the time when the person to whom they were made was already indebted to the bank in a sum equal to one-tenth of the capital actually paid in; (2) whether such loans were knowingly made or assented to by such directors; and (3) what portions of the moneys so loaned were lost.</p> <p>('Syllabus by the Court.)</p>

<p>MUNICIPAL CORPORATIONS —Indebtedness —“Public Utilities" Street improvements do not constitute “public utilities,” within the meaning of. the term as used in section 27, art. 10, of the Constitution, which provides that: "Any incorporated city or town in this state may, by a majority of the qualified property tax paying voters of such city or town, voting at an election to be held for that purpose, be allowed to become indebted in a larger amount than that specified in section 26, for the purpose of purchasing or constructing public utilities, or for repairing the same, to be owned exclusively by such city.”</p> <p>(Syllabus by the Court.)</p>

Errar from District Court, Marshall County; D. A. Richardson, Judge. Action by D. W. Ingersoll against Lula Keel. Judgment for plaintiff. Defendant brings error.

Error from District Court, Creek County; John Caruthers, Judge. Action between Bates B. Burnett and others, and Isaac N. Davis. From the judgment, Burnett and others bring error. No briefs on motion to dismiss received by ''the reporter.

<p>Error from District Qouri, Muskogee Qounty; Malcolm E. Bosser, Judge.</p> <p>Action by the American Steel & Wire Company against Carl E. Coover and O. E. Coover. Judgment for defendants, and pontiff brings error.</p> <p>This is an action brought by plaintiff in error, plaintiff below, against defendants in error, Carl E. Coover and O. E. Coover, doing business under the firm name and style of Coover Hardware Company, to recover on a promissory note for the- sum of $1,082 and interest, executed on the 31st day of January, 1907, and signed by Coover Hardware Company. Ancillary to the main action, plaintiff sued out a writ of attachment, which was levied upon certain property of the partnership. Subsequently a receiver was appointed on application of plaintiff, who took charge of the property attached, and later, by agreement of the parties, said property was sold and the money ordered to be held by the receiver subject to the order of the court on the final hearing of the cause. Defendants by their answer deny that they constitute a partnership, and allege that Carl E. Coover alone was doing business under the style and firm name of Coover Hardware Company. They admit the execution of the note sued on, but allege that O. E. Coover had nothing to do with the indebtedness it represents, and was not a party to the execution of. the note. Further answering, they allege as a defense that in the month of March, 1907, within four months of the filing of this action and the' execution of the note, the defendant Carl E. Coover had filed his application in the federal District Court to be adjudged a bankrupt, and denied all the grounds of attachment alleged in plaintiff’s petition. The action was originally instituted in the Dnited States Court for the Western District at Muskogee before the admission of the state. Upon admission of the state, it was transferred to the district court of Muskogee county, where a trial was had to the court without the intervention of a jury. The court found that Coover Hardware Company was composed of O. E. Coover and Carl E. Coover, and found all the issues of fact in the main action in favor of plaintiff, and rendered judgment against defendants for the amount of the note. But the court found that the defendant Carl E. Coover had filed a petition in bankruptcjf, and had been adjudged a bankrupt within four months from the bringing of this action, and for that reason dissolved the attachment, and ordered the receiver to pay the proceeds of the attached property over to the clerk of the court. No appeal has been taken by defendants, and plaintiff prosecutes this proceeding from only that part of the judgment of the trial court which dissolves the attachment.</p> <p>Citing In re Mercur, 122 Fed. 384, and In re My or, 98 Fed. 976.</p>

<p> Error from District Court, Kingfisher County; A. E. Huston, Judge. </p> <p>Action by John Holmes and others against Lnella Holmes. Judgment for defendant, and plaintiffs bring error.</p> <p>Citing Betts et al. v. Mills, 8 Olda. 351.</p> <p>Citing: Fare v. Fore, 2 N. D. 260; Weaver v. Bank (Kan.) 94 Pae. 273; Funk v. Baker, 21 Olda. 402.</p>

<p> Appeal from District Court, Pittsburg County; Preslie B. Cole, Judge. </p> <p>Action bj the Fidelity Mutual Life Insurance Company against E. L. Stegall and others. Judgment fox defendants, and plaintiff appeals.</p> <p>Plaintiff in error commenced this action in the United States commissioner’s court at South MeAlester before the admission of the state against defendants in error as sureties on a bond to recover the sum of $196.37, with interest thereon. From a judgment in that court in favor of defendants in error, plaintiff in error appealed to the United States Court for the Central District of the Indian Territory at South McAlester, where the appeal was pending at the time of the admission of the state, when the cause was transferred, under the provisions of the enabling act and the Schedule to the Constitution, to the district court of Pittsburg county. At the trial in that court, after plaintiff had introduced its evidence and rested its ease, defendants in error, without introducing any evidence, rested and moved the court to instruct the jury to return a verdict in their favor, which was done, and plaintiff appeals. Reversed and remanded.</p> <p>On question of guaranty or suretyship: 1 Brandt on Suretyship and Guarantjr, secs. 1, 2, 15; Friend v. Smith Gin Go., 59 Ark. 86. On direction of verdict: Kentucky Refining Go. v. Purcell, etc., 13 Oída. 320; Shawnee Light & F. Go. v. Sears, 21 Oída. 13.</p> <p>On question of guaranty or suretj^ship: Black’s Law Die. 550; 9 A. & E. Ene. L. (1st Ed.) 66; 20 Cyc. 1398, 1404, 1413; La Rose v. Barnlc (Inch) 1 N. E. 805; Weed S. M. Go. v. Winchell, 7 N. E. 881; McQullom v. Gushing, 22 Ark. 540; Davis S. W. Mach. Go. v. Richards, 115 U. S. 524; Kawlc v. Harris, 22 Ark. 323.</p>

<p> Error from District Court, Washita County; James B. Tolbert, ■Judge. </p> <p>Action by M. Gergens against J. S. McCollum. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court of Custer County; J. R. Tolbert, Judge. </p> <p>Action by Benton McAttee against tbe Clinton Cemetery Association and others. Judgment for plaintiff, and defendants bring error.</p> <p>Citing: Dunnv. City of Austin (Tex.) 11 S. W. 1125; Jung v. Feraz (Tex.) 9 S. W. 344; Adams v. Michael, 38 Md. 123; Monk v. Packard, 71 Me. 309; Begein v. City of Anderson, 28 Ind. 79; Lake View v. Lutz, 44 111. 81; Kingsbwy v. Flowers, 65 Ala. 479.</p>

Error from Lincoln County Court; Fred A. Wagoner, Judge. Action by Charles Egbert against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff. Defendant brings error. This action was originally brought in the probate court of Lincoln county before the admission of the state against plaintiff in error to recover damages for the conversion by plaintiff in error of one car of cotton seed.

<p>ABSTRACTS OF TITLE — Defective Abstracts — Accrual of Cause of Action. A right oí action against an abstracter for damages resulting from incompleteness, imperfections, or error in an abstract furnished by him accrues at the time the examination is made and reported, and not when the error is discovered, and the damages resulting therefrom have been paid.</p> <p>('Syllabus by the Court.)</p>

Error from Pontotoc County Court; Joel Terrell, Judge. Action by the Commonwealth National Bank of Dallas, Tex., against W. M. Baughman. Judgment for defendant, and plaintiff brings error.

Error from District' Court, Pawnee County; Bayard T. Rainer, Judge. Action by the Cleveland Vitrified Brick Company against the Minnetonka Oil Company. Judgment for plaintiff, and defendant brings error. On question of equitable jurisdiction: Xenia Beal Estate Co. v. Macy (Ind.) 47 N. E. 147; School Dist. v. Ohio Gas. Co. (Pa.) 25 Atl. 868; Graves v. Gas. Co. (Iowa) 50 N. W. 283; Williams v. Neely, 134 Eed. 1. On assignability of contract: Am.

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action by Lake Moore against J. O’Dell. Judgment for defendant, and plaintiff brings error.</p> <p>On the 7th day of January, 1908, plaintiff in error as plaintiff commenced Ms action in ejectment against the defendant in error as defendant in the district court of Okfuskee county by ill-ing petition in the usual form, praying for the possession of lot 18, in block 6, in the town of Weleetka, and for damages, rents and profits. And on the 10th of March, 1908, the defendant filed his amended answer, which, omitting the caption, is as follows:</p> <p>“Comes now the above named defendant. and files this, his amended answer to. .the petition of plaintiff filed herein after leave .of court, and for answer to said petition alleges the following state of facts, to-wit: That the lot described in plaintiff’s petition is a part of the allotment of one Martha Lowe, a Creek Indian, described as follows: ‘The west half of the southwest quarter of section (15), and the southeast quarter of the southeast quarter of section (16), township (10), range (11) East, Okfuskee county.” That, under the laws of the United States and treaties with the Creek Nation of Indians, said lands were inalienable except upon the approval of the Secretary of the Interior of the United States. That on the 8th day of February, 1904, said Indian allottee procured the removal of the restrictions upon her power to alienate said lands for townsite purposes to the occupants thereof. The letter of the ■ Honorable Secretary of the Interior removing said restrictions, with all the terms and purposes thereof, duly certified, with the record indorsement thereon, by the register of deeds of Wewoka county, Okla., wherein said letter was filed for record March 3, 1904, with the clerk of the United States Court, as required by law, is attached hereto and made a part hereof marked ‘Exhibit A.’ That, under the terms of the said letter removing restrictions from said land, the allottee was directed and authorized to dispose of said lands at not less than $15,000, deducting first, however, from the sum mentioned, the amounts, if any, the allottee has received for occupancy rights from the present occupants of said tracts, not including, however, money received for rent, and that the said land which is to be sold for townsite purposes is, of course, to be.disposed of to townsite occupants, and must be sold to such persons as such townsite occupants may designate.</p> <p>“Defendant states that, on or about the 14th day of February, 1902, he went into possession of the lots described in plaintiff’s petition under a certain so-called deed of occupancy, the original whereof, marked ‘Exhibit B,’ is attached hereto, and that defendant paid the sum of $25 for said right of occupancy upon said lands, and that plaintiff has made extensive improvements upon the said property, towit, a house of the reasonable value of $900, a bam, well and other minor improvements, and that defendant has been continuously in the open, actual and notorious possession of the lots aforesaid, all of which, was well known to plaintiff.</p> <p>“Defendant further states that said property was purchased from the said allottee under the power granted in the aforesaid letter of the Secretary of the Interior through the intervention of a trustee for the occupants of said lands, and that one B. O. Simms so acted as trustee for that purpose.</p> <p>“Defendant states that -the lots comprising said lands were assessed according 'to proportionate value, and that the sum assessed against the lots mentioned in plaintiff’s petition was the sum of $37.50; that defendant tendered the said trustee," B. O. Simms, the full sum of money, towit, $37.50, United States money, towit, national bank notes, greenbacks, treasury certificates and silver coin, in discharge of the said assessment, and that the said Simms refused to receive the same, and to execute a deed to defendant conveying said lots to defendant.</p> <p>“Defendant further states that he now is, and always has been, ready and willing to pay said trustee the amount assessed against said lots, and that the said trustee fraudulently connived with the plaintiff, Lake Moore, the said Simms, and the said Moore, being at that time and at the present time engaged in the business, so-called, of buying land, by refusing to receive said money, to hinder defendant in obtaining title to his said lots, and to cheat and defraud him of the same, and wrongfully, without authority of law, caused said lots to be advertised as delinquent, and the said Simms executed a deed to said premises to his said business partner for the sum of $39.75, as near as defendant can ascertain.</p> <p>“Defendant states that he tendered the aforesaid amount of assessment to the said Simms at the time other occupants were settling the assessments against lots, and that the said Simms well knew that defendant was the occupant of said lots, and had constructed improvements thereon.</p> <p>“Defendant denies that plaintiff has any title to said lots whatever, and that the refusal of the said trustee to receive the assessment against defendant’s property was contrary to the letter of the Honorable Secretary of the Interior, and that said Simms had no power to advertise said lands and sell the same to a bidder, under the law or the said letter removing the said restrictions.</p> <p>“Wherefore defendant prays judgment against plaintiff, and that he go hence without day and recover his costs expended in this action.”</p> <p>Exhibit A, attached to said answer, is in part as follows:</p> <p>“The department has concluded that, for the proper protection of all parties concerned, townsite occupants, and allottees, the Indians should proceed under their application to be allowed to alienate for townsite purposes. Permission is therefore hereby granted said allottees to alienate for townsite purposes, under the provisions of said act of March 3, 1903, the tracts as follows: Martha Lowe, the W. % of S. W. %, section 15, * * * at not less than $15,000, * * * deducting first, however, from the sums mentioned in each instance, the amounts, if any, the al-lottees have received for occupancy rights from present occupants of said tracts;, not including, however, money received for rent. It is to be understood, also, that the land which is to be sold for townsite purposes is, of course, t'o be disposed of for townsite occupants, and must be sold to such persons as such townsite occupants may designate.”</p> <p>Exhibit B, attached to said answer, is a purported bill of sale, dated February 14, 1902, signed by Martha Lowe, conveying the right of occupancy to said land unto D. J. O’Dell, wherein she covenanted with him that “so soon as she may lawfully do so under the laws now in force in the Creek Nation, or hereinafter enacted or put in force therein (the consent of the Secretary of the Interior being obtained if necessary), she will make and deliver to the said D. J. O’Dell, his executors, administrators or assigns, a deed in due form of law.”</p> <p>On March 12, 1908, plaintiff filed his reply to the amended answer, in haec verba,:</p> <p>“Comes now the plaintiff, and for repty to the amended answer of the defendant, denies each and every allegation therein contained except as hereinafter specifically admitted. For further reply to the amended answer, defendant admits that the lot described in the plaintiff’s petition is a part of the allotment of Martha Lowe as set out in the answer, admits the allegations in regard to the removal of the restrictions upon said land, and that an order was made by the Secertary of the Interior in regard thereto, as set out in the amended answer and the Exhibit A attached thereto, admits that said property was purchased from the allottee under the power granted in the aforesaid order of the said Secretary of the Interior, and through the intervention of the trustee for the occupants, and that one B. O. Simms acted as trustee for that purpose. For further reply to said amended answer, plaintiff admits that at one time, soon after the said Martha Lowe conveyed the said lands to said Simms as trustee, the defendant tendered to the said Simms the sum of $37,50, the amount assessed against said lot, and demanded a deed therefor, but plaintiff avers that the occupants of said townsite, in pursuance of the order of the Honorable Secretary of the Interior, referred to in the amended answer, for the purpose of properly guarding the interest of said occupants, has in a public meeting of the said occupants appointed a committee of eight reputable business men of said occupants to pass upon the question as to what persons were entitled to receive deeds from said trustee, and provided that no person should receive a deed to a lot until he should have obtained a certificate, signed by a majority of said committee that he was so entitled, and that all-persons should present such certificate within ninety days from the time when said trustee should be ready to execute and deliver deeds. Plaintiff further states that, at the time defendant tendered said sum of money to said Simms, the said Simms demanded of him that he should present to him a certificate signed by a majority of said committee that he was entitled to a deed to said lot before he would issue the same, which defendant failed and refused to do. Plaintiff further states that, soon thereafter, said Simms, of his own accord, procured said certificate from said committee, and offered to defendant to execute to him a deed to said lot upon the payment of said assessment, which the defendant failed and refused to do; that the said trustee, Simms, had advanced and paid to the said Martha Lowe and other Indians whose lands had been conveyed to him upon the same trust a large sum of money, towit, $23,000, to pay the purchase price thereof, and that the object and purpose of conveying the same in trust to said Simms was not only that he might convey the lots to the persons whom the occupants might designate, but also to reimburse him for the purchase price so paid and for the expense of the trust; that, after the expiration of the said ninety days above mentioned, the said Simms, not having been reimbursed for his said outlay under the direction of said committee, which had full authority in that behalf, gave due notice by advertising in a newspaper published in said town of Weleetka that all lots included in said trust upon which the assessment had not' been paid would, at the expiration of thirty days, be sold for the purposes of carrying out the purposes of said trust; that, at the expiration of said period, the defendant not having paid said assessment, the said lot was, by the said trustee, sold and conveyed to plaintiff; that, at all times since the conveyance of said lot to him by said trustee, plaintiff has been ready and willing to convey same to defendant upon the defendant refunding to him the amount of the purchase price thereof so paid out by him, together with his interest and necessary expenses incident to said purchase and of conveyance to defendant, and has often, before the commencement’ of this suit, offered the defendant so to do, which said offers have at all times been refused; that, defendant having refused to surrender possession of said property to plaintiff, he, plaintiff, had no other remedy than to bring suit; that the purchase price and interest and other expenses incident to the purchase of said lot amount to the sum of $50, and that, in the prosecution of this, in addition to the legal costs taxed herein, plaintiff has incurred other expenses and attorney’s fees to the amount of $50, and plaintiff now offers, upon the payment of the sum of $100 and the costs of this suit by defendant, to reconvey said property to defendant. Wherefore (in the event defendant refuses to accept plaintiff’s said offer) plaintiff prays judgment as prayed for in the petition.”</p> <p>On June 2-4, 1908, plaintiff moved the court to try said cause upon the chancery side of the docket, for the reason that, under the issues made in the pleadings, said case should be tried in chancery, and not to a jury.</p> <p>The deed from Martha Lowe and. her husband, Alexander Lowe, to B. O. Simms, trustee, omitting signature and acknowledgment, which is in due form, is as follows:</p> <p>“Whereas, the Secretary of the Interior, under date of February 8, 1904, granted Martha Lowe, a Creek allottee, permission to alienate for townsite purposes," under the provision of the act of Congress of March 3, 1903 (32 Stat. 996), the tracts of land hereinafter described at not less than fifteen thousand dollars ($15,000.00), and,</p> <p>“Whereas, said permission was granted on condition that said land be disposed of for the occupants of the townsite of Weleetka, Indian Territory, to such persons as such townsite occupants may designate, and</p> <p>“Whereas, B. O. Simms of Weleetka, Indian Territory, has been duly designated by said townsite occupants as the person to whom, in the capacity of trustee, said tracts of land are to be sold;</p> <p>“Now, therefore, this indenture, made and entered into this . 27th 'day of February, one thousand nine hundred and four, by and between Martha Lowe, joined by her husband, Alex Lowe, of Weleetka, Indian Territory, parties of the first part, and B. O. Simms, trustee, of Weleetka, Indian Territory, party of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of fifteen thousand dollars ($15,000.00), in hand paid, the receipt of which is hereby acknowledged, do hereby grant, bargain, sell, convey, and confirm unto the said party of the second part the following described real estate and premises situated- in the Muskogee or Creek Nation, and within’the limits of the Indian Territory, towit: The west one-half of the southwest quarter of section fifteen (15), township ten (10) North, range eleven (11)-East; and the southeast one-quarter of the southeast one-quarter of section sixteen (16), township ten (10) North, range eleven (11) East of the Indian Base and Meridian, containing one hundred and twenty (120) acres, except that portion thereof occupied as a right of way by the Ft. Smith and Western Railroad, together with all the improvements thereon, and appurtenances and immunities thereunto belonging or in any wise appertaining thereto, and warrant the title of the same. To have and to hold the said lands unto the said party of the second part, his successors and assigns forever.</p> <p>“In witness whereof, the said parties of the first part have hereunto set their hands and seals the day and year first above written.”</p> <p>The jury having been impaneled, the following instructions were delivered:</p> <p>“Gentlemen of the jury, this is a suit in ejectment brought by the plaintiff, Lake Moore, against the defendant, D. J. O’Dell, in which the plaintiff states that he has the legal title in fee simple and the equitable estate in the following described real estate situated in Okfuskee county, state of Oklahoma, towit: Lot 18.</p> <p>in block 6, in the town of Weleetka, in this county, and by reason of having a legal and equitable estate in said lot, claims the immediate possession of the same, and alleges that the defendant unlawfully withholds the possession from him. Plaintiff also claims damages in the sum of $100 from the defendant for unlawfully withholding possession. Plaintiff further alleges that the defendant has unlawfully kept plaintiff out of possession for the past three years, and claims as rent from the defendant the sum of $200, and plaintiff asks judgment for the possession of said land and for $100 damages for withholding possession, and $200 for rents and profits. The court instructs you not to find any sum due the plaintiff from the defendant for rents and profits, should you find under these instructions for the plaintiff. The defendant interposes in answer to plaintiff’s petition a general denial of all plaintiff’s allegations, and further claims that the lot in question was part of an allotment of one Martha Lowe, a Creek Indian, and that, on the 8th day of February, 1904, -the said Martha Lowe procured from the Secretary of the Interior removal of the restrictions upon the land in question, and allowed her to alienate the same for the townsite purposes to the occupant of this and other lands composing the townsite of Weleetka. The defendant claims as a. further defense on the 14th day of February, 1902, he went into possession of the lot in question under a certain bill of sale executed by Martha Lowe, which gave him the right of occupancy of said land in question, and that he had been in possession of said lot ever since, and further states that he has made extensive improvements on the lot, to show the value of which the defendant has offered evidence. The defendant claims that the power to alienate said land, given to the allottee by the Secretary of the Interior, was clothed with the limitation that it was to be disposed of to townsite occupants and was to be sold to such persons as such townsite occupants might designate, and de-defendant further saj^s that this particular lot in question was assessed according to the proportionate value, and that the sum assessed against the lot was the sum of $37.50 United States money, and that the defendant tendered to the trustee, B. O. Simms, to whom all the land embracing the townsite of Weleetka was deeded by Martha Lowe, the full sum of $37.50, United States money, and that said Simms refused to receive the same and to execute a deed to the defendant conveying said lot to said defendant. The defendant further states that he has always been ready, and is now ready and willing to pay said trustee, B. O. Simms, the said amount of $37.50.</p> <p>“(1) The court instructs you, gentlemen of the jury, that if you believe from the evidence that the occupants of the We-leetka townsite, of which this defendant was one, had in public mass meeting appointed a committee of their number to pass upon the question as to what persons were entitled to receive deeds from the trustee, and provided that no persons should receive a deed to a lot until he should have first obtained a certificate signed by a majority of said committee to the effect that he was so entitled, and you further find that this defendant participated in said public mass meeting, or had notice of said public mass meeting, knowing that it was called for the purpose of appointing a committee from the occupants of the Weleetka townsite, then you are instructed that said provision was a reasonable and just one for the purpose of properly safeguarding the interests of the occupants of said townsite, and if you further believe from the evidence that, at the time the defendant tendered the amount of the assessment on his lot to said Simms, the trustee, he failed .and refused to produce such certificate, 'then th'e said Siimms 'would not be bound to execute a deed to him. On the other hand, if you believe from the evidence that the occupants of the Weleetka townsite, of which this defendant was one, did not give the committee any authority to pass upon the occupancy rights of persons, and say which of them was entitled to a deed from the trustee by virtue of said occupancy, then the defendant would not be bound by any action of the committee, nor would the obtaining of a certificate from the committee be a condition precedent to the defendant’s rights to have a deed from the trustee, nor would the trustee be authorized to sell a lot upon which the. defendant had an occupancy right, without giving him an opportunity to prove and establish an occupancy right to the lot in question.</p> <p>“(2) If you believe from all the evidence that, after the tender by the defendant to the said trustee, Simms, of the amount of his assessment, Simms, of his own accord, procured a certificate from the committee appointed under the circumstances hereinbefore designated, and offered to convey the lot to the defendant upon the payment of the assessment, then it became the duly of the defendant, if he desired a deed to his lot, to accept said offer and pay the assessment, ands, if he failed so to do within a reasonable time thereafter, then you are instructed that if the said Simms afterwards sold said lot after advertising the sale of same for a period of thirty days, and you further find that before said Simms sold said lot, pursuant to said advertisement, the defendant was given an opportunity to pay the amount due on his lot including the cost of advertising, and take a deed therefor from the said Simms, and failed to pay said sum and redeem his lot, then you should find for the plaintiff.</p> <p>“(3) If you believe from all the evidence that the occupants of the Weleetka townsite, of which the- defendant was one, held a public meeting and appointed the committee under the circumstances mentioned in the foregoing ''instructions, and gave said committee power to manage and control the disposition of the lots embraced in the Weleetka townsite, and that the defendant refused to furnish the certificate as mentioned above, or refused upon tbie trustee furnishing the certificate, to pay the assessment and procure his deed, then the trustee had the right, if you believe he was authorized so to do by the committee, after giving due notice by advertising the sale of said lot, to sell and dispose of the lot to any other person who would pay the assessment and cost of advertising, providing he gave the defendant the right to' pay the assessment and cost of advertising on his lot at any time before said sale was made, and if you believe from the evidence that, under such circumstances, the 'trustee did sell and convey the lot to plaintiff, then the deed to the plaintiff vested in the plaintiff a good and valid title to the lot, and your verdict should be for the plaintiff, provided you find that the defendant refused to pay the amount of the assessment against his lot, together with the cost of advertising.</p> <p>“(4) It is the duty of the plaintiff to make out his case by a preponderance of the evidence, and 'the burden is upon him to show by a preponderance of the evidence that the sale of said lot was made to him by the trustee, B. O. Simms, and that said B. O. Simms made to him a deed to said lot under the circumstances as set forth in the above instructions.</p> <p>“(5) By a preponderance of the evidence, the court does not mean the largest number of witnesses on a given point, but, in determining where the preponderance of the proof is, you may take into consideration the opportunities the witnesses .had for seeing, knowing or remembering what they have testified about, or the probability or improbability of its truth, their relation, or action, if any, between the witnesses and the parties, and their interest or lack of interest in the result of the case, and their conduct and demeanor while testifying. It is your duty to reconcile all the statements of the several witnesses as far as you can, and, if you cannot do so on account of contradictions, then you have the right to believe the witness whom you believe to be the most worthy of credit, and disbelieve those whom you believe to be the most unworthy of credit.</p> <p>• “(6) In considering and deciding this case, you should look to the evidence for the facts and to the instructions of the court for the law of the case, and find your verdict accordingly, without reference to who is the plaintiff or who is the defendant. You must take the law as it is given to you by the court, and you have no right to consider anything as law, except as it is given to you in these instructions, but you, gentlemen of the jury, are the exclusive judges of all questions of fact.</p> <p>“(7) If you believe from the evidence that, after a committee had been selected by the occupants of the Weleetka town-site, of which this defendant was one, to appraise the lots for the purpose of ascertaining what pro rata amount should be assessed to each lot occupant to pay for the purchase price advanced to the allottee by the trustee, and this was the extent of that committee’s authority, and they were then discharged, the defendant would not be bound by any subsequent action of that committee so far as being compelled to present a certificate of his right as lot occupant to the trustee was concerned, but if that committee, or another committee, was at that time, or subsequently, selected by and with the consent of the lot occupants, of which the defendant was one, with authority to say who were occupants and entitled to a deed from the trustee, and issued certificates to that effect, then it would be incumbent on the defendant, or some one for him, to furnish the certificate from said committee to the trustee and pay the the assessment due on his lot.”</p> <p>“To the giving of said instructions No. 1, 2, 3, 4, 5, 6, and 7, * * * and to each and every part thereof, the plaintiff then and there duly excepted at the time.”</p> <p>The following instructions were prayed for by plaintiff, each of which was refused by the court:</p> <p>“(l)The court instructs the jury that, if they believe from the evidence that the occupants of the Weleetka townsite had, in a public mass meeting, appointed a committee of their number to pass upon the question as to what persons were entitled to receive deeds from the trustee, and provided that no person should receive a deed to a lot until he should have obtained a certificate signed by a majority of said committee, and that he was so entitled, then you are instructed that said provision was a reasonable and just one for the purpose of properly safeguarding the interest of the occupants of said townsite; and, if you further believe from the evidence that, at the time the defendant tendered the amount of the assessment of his lot to Simms, the trustee, he failed and refused to produce such certificate, then Simms was not bound to execute a deed to him.</p> <p>“(3) If the jury believe from the evidence that, after the tender by the defendant to Simms of the amount of his assessment, Simms of his own accord procured a certificate from the committee and offered to convey the lot to the defendant upon the payment of the assessment, then it became the duty of the defendant, if he desired a deed to said lot, to accept said offer and pay the assessment, and, if he fails so to do within a reasonable time thereafter, you are instructed that he is estopped from claiming any right or title to said lot.</p> <p>“(3) If the jury believe from the evidence that the occupants of the Weleetka townsite had held a public meeting and appointed the committee as set out in another instruction, and had given said committee power to manage and control the disposition of the lots, and that the defendant refused to furnish the certificate as set out in another instruction or refused upon the trustee’s furnishing the certificate to pay the assessment and procure his deed, then the trustee had the right, if you believe he was authorized so to do by the committee or a special committee duly authorized by the committee, after giving due notice, to sell and dispose of the lot to any other person who would pay the assessment, and, if you believe from the evidence under such circumstances the trustee did sell and convey the lot to plaintiff, then the deed to plaintiff vested in plaintiff a good and valid title to the lot, and your verdict should be for the plaintiff.</p> <p>“(d) The jury are instructed that although they may not believe that the trustee, Simms, had any particular authority or instruction from the committee to sell the lot, yet, if they further believe that the defendant refused to furnish a certificate as required by the committee, if you believe a certificate was required under authority of the occupants, or if he refused to pay the assessment upon Simms furnishing the certificate, and if you further believe that under arrangement with the occupants Simms had furnished the money to pay for the lownsite and was entitled to be reimbursed for his outlay and expenses ont of the sale of the lots, then Simms had the right after that of a reasonable time and due notice of his own accord to sell and dispose of the lot, and, if he did so sell and dispose of the same to plaintiff, then his deed to plaintiff conveyed a good and valid title, and your verdict should be for plaintiff.</p> <p>“(5) The jury are instructed that the effect of this deed from Simms, trustee, to the plaintiff, was to convey the legal title in the property to Moore, and in no event can the defense interposed by defendant be available to him until he shall have actually paid or tendered to Moore the amount of the assessment or purchase piriee paid by Moore on the lot, and you are instructed that there has been no evidence introduced tending to prove such payment or tender, and your verdict should therefore be for the plaintiff for the possession of the lot and for nominal damages.’</p> <p>“(6) The court instructs the jury that, upon the undisputed facts in this case, the finding and verdict should be for the plaintiff for the possession of the lot, and for nominal damages.</p> <p>“(7) The jury are instructed that, although they may believe the committee of eight had no authority to certify to who should be entitled to deeds to lots or that they had been discharged before the time at which they made such certificates, yet, if they further believe that the committee acted in that capacity and made such certificates with the same sanction • and acquiescence of the occupants of said townsite in general, then the defendant is bound by their action in that respect.”</p> <p>Exceptions were saved as to each of said instructions. The jury returned a verdict in favor of the defendant. Motion for new trial made in due time being overruled, the question is now properly here for review.</p> <p>Such additional statement of facts will be made hereinafter in the opinion as may be essential.</p> <p>Citing: .Simms v. Richardson, 32 Ark. 304; Wells v. Rice, 34 Ark. 346, Whittington v. Flint, 43 Ark. 504 ; Cohn v. Hoffman, 45 Ark. 376; Schearff v. Bodge, 33 Ark. 346; Renard v. Clink (Mich.) 51 N. W. 692; Robinson v. Stone (Ala.) 45 L. R. A. 66, 71; 27 Oyc. 1291-1293.</p> <p>Citing: Winfield Town. Co. v. Maris, 11 Kan. 105; Ralhbone v. Sterling, 25 Kan. 444; Marysville Inv. Co. v. Hollé, 49 Pac. 332; City of Pueblo v. Budd, 36 Pac. 599; City of Helen® v. Albertose (Mont.) 20 Pae. 817; Threadway v. Wilder, 8 Key. 91.</p>

<p>1. APPEAL AND ERROR — Review—Grant of Temporary Injunction. An order of the district court or a judge thereof at chambers allowing a temporary injunction may <be reviewed in the 'Supreme Court before final judgment in the case.</p> <p>2. PROHIBITION — Existence of Remedy by Appeal. Prohibition will not lie where an inferior court having jurisdiction of both the subject-matter and the parties, making an erroneous application of the law, grants an injunction, an appeal lying from said order to the Supreme Court, pending which, such order may be superseded.</p> <p>('Syllabus by the Court.)</p>

<p>Error from Canadian- County Court; 71. L. Fogg, Judge.</p> <p>Action by W. J. Finch and others against Dollie Brown and others. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Johnston County; A. T. West, Judge. Action by James E. Jones against E. S. Balsley and others. From a judgment granting inadequate relief, plaintiff brings error. .

Error from District Court, Oklahoma County; George W. Ciarle, Judge. Action by John S. Jenkins against Oklahoma City and others. Judgment for defendants, and plaintiff brings error. On sufficiency of publication: Weelcs v. Hull, 19 Conn. 376; O’Connor v. Town, 1 Texas, 107; McCulloch v. Hcarper, 7 N. J. Law, 336.

<p>1. JUSTICES OF THE PEACE — Appeal to County Court — Trans,fer to Superior Court. A case pending- on appeal in a county court from a judgment of a justice of the peace may be transferred on motion of plaintiff to a superior court, and held, tried, and determined by it.</p> <p>2. COURTS — Jurisdiction—County Superior Courts — Concurrent Jurisdiction. County superior courts created by the act of the Legislature -approved March 6, 190-9 (Sess. Laws Okla. 1909, p. 181) have, except as to- matters of probate, concurrent jurisdiction with thei county courts- in all civil and criminal matters.</p> <p>3. COURTS — “Concurrent Jurisdiction.” ..“Concurrent jurisdiction” is that of several different tribunals, ' each authorized to deal with the same subject-matter.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Waiver of Error in Sustaining Demurrer. "When a demurrer is sustained to a pleading, and the pleader thereupon obtains leave to amend and does amend, he thereby waives the error, if any was committed, in sustaining the objection to his pleading.</p> <p>2. GUARANTY — Transfer of Non-Negotiable Instruments. The payee of a non-negotiable instrument who writes his name across the back thereof and sells and delivers the same does not thereby render himself liable to the assignee on such note either as an indorser or guarantor.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Decisions Appealable — Judgment Favoring Appellant. In an action where defendant relies upon two ■grounds to defeat the claim of plaintiff, and the court finds against him on one but sustains him on the other and dismisses plaintiff’s petition, an appeal will not lie to this court from a judgment in his favor.</p> <p>('Syllabus by the Court.)</p>

<p>1. MUNICIPAL CORPORATIONS — Public Improvements — Municipal Liens. A city can create a valid municipal lien for improve-ing a .street only. when the improvement is made pursuant to law, and the mode established by statute is strictly followed.</p> <p>2. MUNICIPAL CORPORATIONS — Public Improvements —Contracts — Cost Exceeding Estimate. Under an act approved March 5, 1901 ("Wilson’s Rev. & Ann. St. Okla. 1903, sec. 446), providing that the mayor and city council may proceed with the work ■therein provided for, and “.shall cause to be prepared sections, profiles and specifications of the work, together with a complete estimate of the cost,” and that they shall have power to let the contract for the work, “which contract shall in no case exceed the estimate of cost submitted with the plans and specifications,” a contract so entered into for such work at a price .exceeding the estimate of its probable cost is void.</p> <p>3. MUNICIPAL CORPORATIONS — Public Improvements — Assessment — Validity. Where the mayor and city council fail to meet “to hear and adjust any complaint and review such assessment” at the meeting' called pursuant to the notice required by Wilson’s Rev. & Ann. St. Okla. sec. 449, such assessment is void.</p> <p>4. SAME — Injunction—Limitation of Actions. The period of limitation by statute (Wilson’s Rev. & Ann. St. Okla. sec. 4'50) within</p> <p>' which an action, may be brought to set aside a special assessment made against the lots abutting upon a street to pay the •cost of grading the same does -not apply to bar a lot owner of an action to enjoin collection of such assessment, when the proceedings upon which it is based are void.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by the State, on the relation of Yoeman & Stuart, against R. A. Sneed, Register of Deeds. Judgment for relators, and defendant brings error.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Possession of Mortgaged Personalty — Replevin. Where a chattel mortgage provided that, on condition broken, the mortgagee might take possession of the property; on refusal to yield possession, 'replevin- will lie against the administrator of the mortgagor.</p> <p>2. EXECUTORS AND ADMINISTRATORS — Carrying on Business o.f Deceased — Liability of Administrator. Where an administrator, without authority of law, carries - on the -business for the ■deceased, he is chargeable with all the losses thereby incurred.</p> <p>(Syllabus by the Court.) ,</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Suit by Chauncey A. Owen and others against the City of Tulsa and others. Judgment for defendants, and plaintiffs bring error. Citing: Douglas v. City of Placerville, 18 Cal. 643; Knox City v. Thompson, 19 Mo.

<p>1. APPEAL AND ERROR — Stay of Proceedings Below. Upon an appeal which stays proceedings, the subject-matter involved is removed 'from the jurisdiction of the lower court until the appeal has been determined.</p> <p>2. SAME — Appeal from County Court to District Court. A county court has no jurisdiction pending an appeal to the district court 'from an order transferring a. guardianship proceeding from that court to the county court of another county under act of the Legislature of 1910 (chapter 25, Sess. Laws Okla.) to make certified copies of the orders and judgments therein and transmit the same, as its power to act therein is suspended by the appeal; and a court receiving such proceeding under such circumstances is without jurisdiction to act.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Oklahoma County■; George W. Clark, Judge.</p> <p>Action by Henry L. Gerson against the Western National Bank. Judgment for plaintiff, and defendant brings error.</p>

Petition by B. O. Wadlington and others before the Corporation Commission to establish telephone rates of the Purcell & Lexington Telephone Companjr, owned by Lewis T. Hine. From an order establishing the rate, Hine appeals. On motion to strike certain evidence from the record.

<p> JError from District Court, Caddo- County; Frank M. Bailey, Judge. </p> <p>Action by J. P. Hass and others against J. A. McCampbell, .City Clerk. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. STATUTES — Constitutional Law — Elections — Amendments to Constitution — Initiative—Titles of Statutes., (a) An act entitled “An act carrying into effect provisions relating to the initiative and referendum; prescribing the method of procedure for submitting and voting for proposed amendments to the Constitution and other propositions, and prescribing the method of appeal from petitions filed or from the ballot title; repealing sections 6, 7, and 16 of article 1, chapter' 44, of the Session Laws of Oklahoma . 1907-08,” is not repugnant to section 57 .of article 5 of the Constitution.</p> <p>(b) Said act is neither repugnant to sections 2 and 3 of article 5 of the Constitution, nor sections 1 and 3 ' of article 24, of the Constitution of this state. ,</p> <p>(c) Section 4 (a) of article 3 of the Constitution, an amendment adopted at the election on the first Tuesday in August, A. D. 1910, is not invalid for the reason that it was submitted at the primary election held “throughout the state,” at said time, and not at the general election to be held “throughout the state,” for the election of state officers on the se'cond Tuesday of said year.</p> <p>(d) Said section 4 (a) qf article 3, supra, is neither repugnant to sections 1 and 7 of article 3, nor section 6, art. 1, or any other provision of the'Constitution.</p> <p>2. CONSTITUTIONAL LAW — Elections—Equal .Protection of Laws —Rights and Immunities, (a) Said section 4 (a), art. 3. Const., supra, is neither in violation of the fourteenth nor the fifteenth amendment to the federal Constitution.</p> <p>(b) Nor is said provision invalid on account of the following provision in section 3 of the Enabling Act; '</p> <p>“ * * * The Constitution shall be republican in form, and make no distinction in civil or political rights on account of race or color, and shall not be repugnant to the Constitution of the United States and the principles of the 'Declaration of Independence.”</p> <p>Kane, J., dissenting in part.</p> <p>(Syllabus by the Court.)</p>

Original Petition for Mandamus. Petition for mandamus by the State, on the relation of Francis R. Brennan, against D. C„ Shelton and others, composing the County Election Board of Tulsa county.

Original Application for Writ of Certiorari. Application by Hunter Montgomery for a writ of certiorari to the state election board and the county election board, of Ok-fuskee county.

<p>RAILROADS — Corporation Commission — Orders Appealable. The Corporation Commission, by order, made the following requirements of all electric and steam railway companies now operat- • ing or hereafter constructed in the state, to wit:</p> <p>“(a) Such railroads shall file with the commission original, corrected, and up-to-date drawings in white or blue print, certified by the chief engineer, showing the location of all right of way, station grounds, real estate, including alignment and profile of the road showing the Oklahoma state line, county lines and in conformity to designated mile posts:</p> <p>"Up-to-date drawings in white or blue print certified .by the chief engineer showing the location and ground plans of structures and buildings owned.</p> <p>“Blue or white prints of all other original drawings in’any way pertinent to any property owned in the state of 'Oklahoma.</p> <p>“(b) Shall report under oath the original cost of construction.</p> <p>“The amount expended for permanent additions and bet-■terments on each individual mile of road, between regularly, up-to-date established and designated mile posts as the unit for all calculations.</p> <p>“(c) All equipment assignable to Oklahoma to be averaged per mile of road.</p> <p>“All calculations to be classified in detail in accordance with classifications of expenditures for road and equipment, as per commission’s order No. 201.</p> <p>“(d) If the original cost can not be identified with any primary account named in such classification of expenditures, estimates for each of said accounts may be made on a form •prescribed by the company making the report to the commission.</p> <p>“The original, actual cost of right of way and station grounds shall be shown in all of state reports.</p> <p>“Detailed reports shall be made on form to be prescribed by the commission.</p> <p>“At the end of each three months detailed quarterly reports of the cost and location of all completed new construction, or additions, or betterments shall be made and certified by the, engineer of the company and shall -be accompanied by a white or blue print of original drawings, showing thereon the cost of any and all such completed construction, additions, or betterments, in the state .of Oklahoma.”</p> <p>Held, that an appeal will not lie to the Supreme Court of the state to review such order.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Craig County; T. L, Brown, Judge. </p> <p>Action by J. G. English against the Bank of Big Cabin. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICI'P'AL CORPORATIONS — Grant of Right to Use Streets— Exclusiveness of Grant. An ordinance of a municipal corporation granting to a person or corporation authority to use the streets and highways of a city for the purpose of ' constructing and operating a street railway system 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 rights, without legislative authority or sanction, invades the .private property of the person or corporation to whom such franchise has been granted, and may toe restrained at the instance of the owner of the franchise.</p> <p>2. SAME — Street Railway Franchises. The owner of a street railway, being operated upon the streets of :a city under a franchise, which was not exclusive, brought an action ' to enjoin another company from constructing and operating-, without a franchise or authority from the municipality, a street railway upon the streets of said city. The defendant company answered that it was acting under legislative authority granted by ordinance of the city council. Held, that the court had power to investigate the facts and determine whether defendant had a franchise, and if it hiad an alleged franchise, might determine whether such franchise was invalid because granted without authority of law.</p> <p>3. MUNICIPAL CORPORATIONS — Annexation of Territory — Procedure. Where, under the procedure prescribed by sec. 922 of Mansf. Dig. .Statutes of Arkansas, for annexing contiguous territory to a municipal corporation, a majority of the votes cast at the election to determine whether the territory shall be annexed is in favor of annexation, the annexation becomes effective and thie annexed territory becomes part of the corporation, if no notice of complaint against annexation is given, thirty days after the transcript is filed with the court as provided by said election, and not on .the date of the election.</p> <p>4. MUNICIPAL CORPORATIONS — Street Railway Franchises— Construction. A municipal corporation of the Indian Territory, before the admission of the state, granted toy ordinance to. a street railway company the right to use the streets and highways of the.city and to construct and operate a street railway system. Section 1 of the ordinance reads: "That 33, his associates, heirs, representatives and. assigns, hereinafter termed and styled grantees, is hereby granted the right, privilege and franchise to construct, operate and maintain a single or double track electric or trolley street railway over and. along the streets and highways of the city of Tulsa, Indian Territory, excepting Frankford Avenue, Greenwood Avenue. North First Street, (and other named streets in the section), and their extensions to the city limits.” Said section, considered and construed in connection with thie other provisions of the ordinance, held to grant to the grantee therein and his assigns .the use of all the streets of the city and their extensions thereafter brought within the municipal corporation by annexation of territory except those streets specifically named in tire excepting clause*of the section and their exten-tions; and that the granting of such franchise was within the power of the city council and is not void.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County; 8. II. Bussell, Judge. </p> <p>Action by O. A. Simmons and others against W. E. Whitting-ton. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. APPEAL AND ERROR — Orders Appealable. An order of the trial court quashing an execution is an order made “upon a summary application in an action after judgment,” and is ap-pealable.</p> <p>2. APPEAL AND EiRROR — Quashing Execution — Discretion. Every court has the inherent power to control its own process, and the quashal of an execution rests largely in its discretion, and an order made quashing an execution will not be reversed in this court except where abuse of such discretion is shown.</p> <p>2. EXECUTION — Stay of Process — Motion for New Trial. After return of the verdict of a jury, and the rendition of judgment thereon, during the pendency of 'a motion for a new trial, the court may in its discretion reserve the case for further argument or consideration and either stay or arrest all process until after the disposition of the motion for new trial.</p> <p>('Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Case-Made-^-Time of Service. A party desiring to appeal has three days by statute in which to serve the case-made after the judgment or order- appealed from is entered, and unless such case-made is served within that time, or within an extension of time allowed by the judge or court within said time, the case will not be considered in this court.</p> <p>2. APPEAL AND ERROR — Record—Action on Motions. Motions presented in the trial court, the rulings thereon, and 'exceptions are not properly part of the record, and can only be preserved and presented for review on appeal 'by incorporating the same into a bill of exceptions or' case-made.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Particularity—Justice Courts. The same degree of particularity, in pleadings, is not required in actions before a justice of the peace that is required in courts of record and a pleading that is sufficient in a justice’s court, is sufficient in the appellate court where the cause is tried de novo, upon appeal</p> <p>2. FRAUD — False Representations. A party is guilty of fraud and deceit where, with intent to induce another to entelr into a contract, he makes a positive assertion, which is material, in a manner not warranted iby his information, or where he is not shown to have reasonable grounds for believing it true, where the assertion so made is not true, even though believed by the party making it. In such a case the definite assertion as a fact of that which is untrue, concerning that which the party has no knowledge, is tantamount to the assertion of something which the party knows to be untrue-.</p> <p>3. NEW TRIAL — Misconduct of Jury — Treating Jurors. The verdict of a jury in favor of a party will be set aside where, after the empaneling of the jury and before verdict, he treats or entertains the same or any member thereof.</p> <p>4. SAME — After the jury has been selected and sworn to try the issues in the cause, the successful plaintiff entertained at dinner at his expense three jurors at a restaurant kept by a fourth juror; a motion for new trial setting this up as one of the grounds was denied. Held, error.</p> <p>(Syllabus by the ’Court.)</p>

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by A. G. Newman against John A. Newman. Prom an order overruling demurrer to petition, defendant brings error.</p>

<p>(a) As to what are reasonable hours depends upon the size of the town or village, the number of patrons, and the amoun't of income and expense, and the demand for service.</p> <p> Appeal from the Corporation Commission. </p> <p>Action by W. N. Mitchell and the State against the Twin Valley Telephone Company. From an order of the Corporation Commission, the telephone company appeals.</p>

Error from District Court, Kay Countyj W M. Bowles, Judge. Action by J. E. Lonsinger and others against the city of' Ponca City. Judgment for defendant, and plaintiffs bring error.

<p>Error from Creek County Court; 'Josiaih G. Davis, Judge.</p> <p>Action by E. S. White against Max Meyer and another. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Pontotoc Comity Comt; Joel Terrell, Judge. </p> <p>Action by R. E. King against W. W. Edwards. Judgmcnt for plaintiff, and defendant brings error.</p>

<p> Error from Custer County Court; A. H. Latimer, Judge. </p> <p>Action by C. W!. Conaway against C. J. Nikkei., Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Grant County; W. M. Bowles, Judge.</p> <p>Action by D. B. Bales against Gault McConnell and others. Judgment for defendants, and plaintiff brings, error.</p>

<p>la. TAXATION — Lien on Personalty Sold. Under the laws in force in the territory of Oklahoma (section 5920, Wilson’s Rev. & Ann. St. 1903), if any person in said territory, after his personal property was assessed and before the tax thereon . was paid, should sell all of the same to any party and not retain sufficient to pay the fax thereon, the tax for that year was a lien on such property.</p> <p>lb. .SAME — Personalty Purchased by Mortgagee. Although the party to whom such personalty was sold had a.mortgage lien ithereon, yet if*he did not acquire title thereto by virtue of a foreclosure of said lien, but by a voluntary sale made by the mortgagor to the mortgagee in satisfaction of said mortgaged indebtedness, ' under section 5920, supra, a tax lien was fastened on said property for the unpaid tax for such year.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter County; 8. H. Bussell, Judge. Action between the Farmers’ Loan & Security Company and the Mutual Ttust Company and Robert Anderson, O. M. Joiner, and E. G-. Wolverton. From a judgment for the former, the trust company and others bring error.

Error from, Creek County Court; Josiah G. Davis, Judge. Action by R. L. Barton and others against the Laclede Oil and Mining Company. From a judgment for defendants, plaintiffs bring error.

<p>APPEAL AND ERROR — Case-Made—Expiration of Time. Where* the time granted by the trial court within which to make and serve a case-made expires before the case is made and served, the court thereafter is without power to grant a further extension for that purpose.</p> <p>(Syllabus by the Court.)</p>

<p>Brror from District Court, Ohmulgee County; W. L. Barnum, . Judge.</p> <p>Action between William H. Willson and Martha E. Willson. From the judgment the former brings error.</p>

Action between the State, Howard Sharp, and others and the Atchison, T. & S. F. Ry. Co. From'the order of the Corporation Commission, the railway company appeals.

<p>APPEAL AND ERROR — Failure to File Briefs — 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 by the evidence, and there is no brief filed, and no reason given for its absence, on the part of the 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 may reverse the judgment in accordance with the prayer of the petition of'plaintiff in error.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Side Tracks — Powers of Corporation Commission. It is beyond the police power of a state to compel a railway company to put in switches at its own expense on the application of the owners of any elevator erected within a specified limit, and sec. 18 of art. 9 of the Constitution does not attempt to confer such power upon the Corporation Commission.</p> <p>(Syllabus by the Court.)</p>

Appeal from Corporation Commission. Action by the State and the Farmers’ Co-operative Shipping Association against the St. Louis & S. F. B. Co. From an order in favor of plaintiffs, defendant appeals.

Error from District Court, Pittsburg County; Peslie B. Cole, Judge. ' , Action by PI., L. Duncan against the McAlester-Clioctaw Coal Company, a corporation. From an order granting defendant a new trial, plaintiff brings error.

<p>Error from Logan County Court; J. C. Strang, Judge.</p> <p>Eepleviu by William Kenworthy against Ben Brummage. .Judgment for plaintiff, and defendant brings error.</p> <p>Citing: Nelson v. Fight-master, 4 Okla. 213; Seeley v. Gwilliam-, 40 Conn. 106; IJerury v. Sheldon, 35 Yt. 427; KiTburn v. Demming, 21 Am. Dec. .543.</p> <p>Citing Bliss v. Yedder, 34 Kan. 57, and Green v. Raymond, 58 Tex. 80.</p>

Error from Ottawa, County Court; D. W. Talbot, Judge. Action between K. E. Newton and Charles Baker. From the judgment the latter brings error. No copies ^of briefs reached the reporter.

<p>INSURANCE — Mutual Farm Insurance — General Verdict — Sufficiency. O. Company insured S. for a term of years beginning on the 17th of May, 1906, in consideration of a certain premium paid to it by S., said company being a mutual insurance company existing by virtue of art. 5, ch. 43, Wilson’s Rev. & Ann. St. 1903. A general verdict was returned in favor of the assured and judgment rendered thereon against the company for the recovery of said sum. Held, under this record, not to be error.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Southern District of the Indian Territory, 'Sitting at Byanj J. T. Diclcerson, Judge. Action by M. E. Ball against W. N. Gann and others. Judgment for plaintiff, and defendants bring error.

<p>APPEAL AND ERROR — .Review—Insufficiency of Evidence. Where, on inspection of the record, it is apparent that the evidence does not reasonably sustain the verdict of the jury, the verdict will be set aside by this court.</p> <p>('Syllabus by the Court.)</p>

<p> Error from Hughes County Court; P. W. Gardner, Judge. </p> <p>Action between J. A. Wortman and the Missouri, O. & G. Ry. Co.</p>

<p> Error from Seminole County Cowrt; T. S. Coll, Judge. </p> <p>Action by W. C. Long against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Expiration of Time. A party desiring to appeal has three days 'by statute in which to- serve the case-made after the judgment or order appealed from is entered, and unless such case-made is served within that time, or within an extension ot time allowed by the judge or court within said time, the case will not be considered in this court.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Nowata County; T. L. Brown, Judge.</p> <p>Action between L. A. Keys and the Second Missionary Baptist Church (colored) oí Nowata.</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Syllabus same as that in Leavitt v. Commercial National Bank, 26 Okla. 164, 109 Pao. 71.</p> <p>(Syllabus by the Court.)</p>

Error from District Gourt, Garfield County; M. G. Garber, Judge. Action between William Howald and J. H. Bash and others. From the judgment Bash and others bring error.

<p>1. LIS PENDENS — Actions to Enforce Vendor's Lien. The word, “title,” in section 4285, Wilson’s Rev. & Ann. St. 1903 (sec. 5621, Comp. Laws 1909), is to be construed in its broadest meaning and most comprehensive signification.</p> <p>(a). An action or claim to enforce a vendor’s lien comes within its meaning.</p> <p>2. SAME — 'Unrecorded Deed — Priority. Under section 13, art. T* ch. 21. Laws Okla. 1893, a lis pendens vendor’s lien claim is superior, with certain exceptions, to the claim of a grantee in a deed which was unrecorded at the time of the filing of the lis pendens petition, but which was filed for record prior to the time of the reducing said vendor’s lien claim to final judgment; said subsequent recording not having such retroactive effect as to overcome the superior lien theretofore obtained by .the filing' of the lis pendens vendor’s lien claim.</p> <p>(Syllabus by the Court.)</p>

<p>1. CORPORATIONS — Pleading—Capacity to Sue. It is not necessary for a plaintiff corporation in bringing a suit to allege that it is a corporation. Plaintiff’s want of legal capacity to sue, where such factt does not affirmatively appear upon the face of the petition, cannot be raised by motion for judgment upon the pleadings or by objection to the introduction of evidence under the pleadings. It should be raised by a special plea in the nature of a plea in abatement. If it is noit so done, 'defendant, by pleading to the meirits. admits plaintiff’s capacity to maintain the action.</p> <p>2. APPEAL AND ERROR — Refusal of Leave to Withdraw Answer —Discretion. A denial of an application of defendant ,to withdraw his answer for the purpose of filing an amended answer will not be held an abuse of discretion or material error, where the application fails to show the character or the purpose of the amendment desired.</p> <p>3. REPLEVIN — Pleadings—Issues'—Defects in Affidavit and Bond — Effect. In an action of replevin, where a petition has been filed, the affidavit and bond for an ancillary order of replevin are not parts of the pleadings; and whether a cause of action has been stated is determined by the averments of the petition; and the petition is not affected by defetets in the averment of the affidavit or by irregularities in the bond.</p> <p>4, EVIDENCE — Fact of Ownership — Opinions. Ownership of personal property is ordinarily a simple fact to which a witness having the requisite knowledge can testify directly; and, in an action of replevin, a question as to who is the owner of the property involved, where such ■ question involves a facit clearly ' within the) knowledge of itbe witness, and not thel expression of an opinion upon facts proven, is admissible.</p> <p>5. TRIAL — Sealed Verdict — Remand of Jury for Correction. A jury . that arrived at a verdict during recess of the count, under permission of the court, sealed their verdict and separated. Upon reconvening of the court, the sealed verdict returned by the jury found for plaintiff, but found that the costs should be divided. Held, that, in the absence of misconduct of the jury in arriving at the sealed verdict, it was not error for the trial court to remand the! jury to their room to correct their verdict as to costs, for the jury was without jurisdiction over the subject of costs; and that portion of the velrdict might have been treated by the court as surplusage and judgment rendered for plaintiff and for his costs upon the original verdict returned.</p> <p>(Syllabus by the Court.)</p>

<p>MUNICIPAL CORPORATIONS — Ordinances—Impounding and Sale of Animals — Procedure. An ordinance of an incorporated town made it unlawful for the owner of any horse to permit same to run at large within the town, and made it the duty of the town marshal to impound any horse found running at large within the' corporate limits and immediately upon impounding same to advertise the same for sale by posting notice thereof in the manner and for the time prescribed by the ordinance. The ordinance also made it the duty of the town marshal to keep in a book, suitable for the purpose, a complete record, showing the date and place of apprehending all animals taken up by him, the number of days such animals are impounded, the amount or fees, or a statement of the sale, amount received from such sale, and to turn all the money thus received over to the treasurer and make monthly reports, supported by his affidavit. Held, that failure of the marshal to keep the foregoing record prescribed by the ordinance did not render void the sale of a horse impounded by him and sold, in accordance with the provisions of the ordinance for the sale of stock impounded.</p> <p>(Syllabus by the Court.)</p>

<p>1 STATUTES — Sufficiency of Title — Constitutional Law — Removal of Officers, (a) Same as paragraph 1 of syllabus in State ex rel. Caldwell v. Hooker, County Judge, 22 Okla. 712, 98 Pac. 964.</p> <p>(b) That part of sec. 23, art. 3 of the Enforcing Act (.Sess. Laws 1907-8, p. 611) providing for the removal of sheriffs, constables. marshals and police officers, and all county and city attorneys for failure to enforce the provisions of said act is referable and cognate to the subject expressed in its title, going to make up a complete enactment or resulting as a complement of the main thought therein contained.</p> <p>(c) Same as paragraph 3 of the syllabus in State ex rel. v. Brown, Judge, 24 Okla. 433, 103 Pac. 762.</p> <p>(d) Section 23 of art. 3 of the Enforcing Act, providing that the judge of the district court wherein such cause is pending may suspend such officer from his office during the pend-ency of such action, is not in conflict with sec. 1, art. 4 of the Constitution.</p> <p>2. PROHIBITION — When Writ Lies — To Prevent Removal From Office. The district court having made an order setting the hearing of thel application for the removal of plaintiff from office at a certain time and place on' ex parte affidavits, summons-having been served on said plaintiff, who was present in person and by counsel when said order was made, no objection then being made as to the time arid place and the manner of such hearing on ex parte affidavits, a writ of prohibition will not. under such circumstances, if at all, be awarded.</p> <p>3. ACCUSATION — Removal of Officers — Grand Jury — Officers—Authority. The appearance of the “Counsel to the Governor” or his assistant before the grand jury, assuming the act authorizing his appointment to be void, does not render void the recommendation or accusation made by said grand jury, under sec. 23 of art. 3 of the Enforcing Act, for the removal of plaintiff from office.</p> <p>(b) When an action is commenced in the district court in the name of the state by the Attorney General, in the( absence of an affirmative showing to the contrary, he is presumed to have brought such action after having been requested by the Governor of one of the branches of the Legislature.</p> <p>(Syllabus by the Court.)</p>

<p>MANDAMUS — Executive Functions of Governor. The courts of the state are without jurisdiction to control the Governor by mandamus in the exercise of his executive functions.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by William F. Adams against the Pacific Mutual Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kiowa County; James R Tolbert, Judge. </p> <p>Petitions by Tula Brigman and -Wesley Cheney for appointment as guardian of a minor. From an order appointing Cheney, Brigman brings error.</p>

<p> Original Action in the Supreme Court. </p> <p>Action by A. J. Seay against Boards of Commissioners of Ellis and Roger Mills Counties.</p>

<p> Error from Seminole County Court; T. S. Cobb, Judge. </p> <p>Action by J. Coody Johnson against Henry Welchi. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Payne County Court; P. D. Mitchell, Judge. </p> <p>Action between H. L. Doggett and The Des Moines 'Fire Insurance Company. From the judgment, the insurance company brings error.</p>

<p>Error from District Court, Pittsburg County; Preslie B. Cole, Judge.</p> <p>Action between J. M. Lathim and Gr. D. Schlack. From the judgment, Lathim brings error.</p>

<p> Error from District Court, Carter Countyj S. H. Bussell, Judge. </p> <p>Action by M. P. Moss against J. M. Arnold. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — 'Review—Conflicting Evidence. Whelre the evidence is conflicting, this court will not review the evidence to ascertain where the weight of the! evidence lies; and if there is evidence reasonably tending to support the verdict, it will not be set aside.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Case-Made—Extension of Time. A trial court or judge is without authority to make, before the order or judgment appealed from is rendered, an order extending the time within which to make! and serve a case-made.</p> <p>(Syllabus by the Court.)</p>

<p>1. STATUTE OF FRAUDS — Agreement for Erection of Party Wall. An executory parol agreement for the erection of a party wall falls within that portion of section 3371 of Mansf. Dig'. Statutes of Arkansas, in force in the Indian Territory prior to the admission of the state, which requires that any contract for the sale of lands or any interest in’ or concerning them shall be in writing, and is void. ,</p> <p>2. SAME — Executed Contract — Acceptance of Benefits. But where an oral agreement is made between two owners, P and K, of adjoining lots that P shall ere'cij a party wall and staircase on the line between their lots and pay therefor, and that K shall, upon using the wall pay one-half of the cost thereof, if the wall is built before any relocation and K thereafter accepts the benefit of the contract and uses the wall, the contract is taken out of the statute, and an action thereon may he maintained.</p> <p>3. WITNESSES — Impeachment—Previous Statements. Before a witness can be impeached by proof of contradictory statements made by him outside of the court room, his attention must first be called to the time, place, and person involved in the supposed contradictory conversation in a manner sufficiently definite that there is a reasonable certainty that the recollection of the witness will be refreshed and his attention directed to the alleged conversation.</p> <p>4. SAME — Statements in Writing — Parol Evidence. If the contradictory statement consists of a written statement, made by the witness, the writing is the best evidence of the contents of the' statement; and, in the absence of a showing that the written instrument is lost or destroyed or that the person seeking to prove the contents of the same is unable to produce it in court, parol evidence! as to the contents thereof is not admissible.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Seminole County; A. T. West, Judge. </p> <p>Action between L. D. Meadors and J. Coody Johnson. From the judgment Meadors brings error.</p>

<p>1. EJECTMENT — Pleading—Equitable Defenses. By reason of section 5033 and of chap. 55 of Mansf. Dig. Statutes of Arkansas, in force in the Indian Territory before the admission of the state, a defendant in an action of ejectment brought in one of the United Statels Courts of the Indian Territory, may plead in his answer any equitable defenses he may have to the action.</p> <p>2. USURY — Effect on Note or Mortgage. A charge of usury by a national bank in the Indian Territory on a note' executed to it did not vitiate the note or the mortgage given to secure the payment thereof.</p> <p>3. MORTGAGES — Foreclosure Sale — Validity—'Ejectment by Purchaser — Defenses. In a foreclosure proceeding by advertisement under a power of sale, failure! of the mortgagee to give notice . of the sale in the manner and for the time provided in the mortgage invalidates the sale; and such irregularity may be pleaded as a defense by the mortgagor in an action of ejectment brought by a purchaser at the sale or by his grantee, both otf whom had notice of such irregularity.</p> <p>4. SAME — Evidence—Regularity of Sale — Recitals in Deed — Effect. Recitals In the deed of the trustee or mortgagee that are by the terms of the power of sale in the mortgage made prima facie evidence of the truthfulness of the facts recite'd are not conclusive evidence of such facts and may be rebutted by the mortgagor who attacks the regularity of the sale. The only effect of such recitals, showing that the sale was regular, is, upon the introduction of the deeds containing them, to place upon the mortgagor the burden of establishing the irregularities complained of.</p> <p>5. SAME — Sale of Land in Separate Parcels — Discretion. In the absence! of a provision of statute or of the mortgage requiring that the mortgaged property shall be sold in separate parcels or tracts, the sale en masse of the property by the trustee under the power of sale, although the property is susceptible of division and of being sold in separate tracts or parcels, rests largely in the discretion of the trustee’; but where the sale is made en masse with fraudulent intent and results in the property’s being sold for much less than its value and much less than what it would have brought, if it had been sold in separate tracts, the sale will be set aside.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garfield County; R. H. LoofbourrOw, Judge. </p> <p>Action between The Waverly Investment Company and the City of Enid. Prom the judgment the investment company brings error:</p>

<p>1. CORPORATIONS — Subscriptions to Stock — Fraud. A secret agreement to release one set of subscribers, or one particular subscriber, to stock in a corporation, is unfair and a fraud upon other subscribers.</p> <p>2. SAME — Sufficiency of Petition. Petition examined, and held to state facts sufficient to state a cause of action.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Alfalfa County Court; F. M. Gusiin, Judge. </p> <p>Action by A. J. Henderson against tbe Atchison, Topeka & Santa Fe Bailway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Tulsa County, L. M. Poe, Judge. </p> <p>Action between G. W. Singleton and W. L. Kennamer. From an order of district court dismissing an appeal, Singleton brings error.</p>

Action by the State and L. W. Wolf oik against the Atchi-son, Topeka & Santa Fe Railway Company. From an order of the Corporation Commission, the railway company appeals.

Error from District Court, Ohfushee County; John Caruihers, Judge. Action by W. H. Ebey, as receiver of the Citizens Bank and Trust Company of Stonewall, against W. H. Dill and . others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Muskogee County; John Tí. King, Judge. Action by M. F. Steil, A. H. Steil and A. L. Gibbs, co-partners, as Iowa-Missouri Land Company, against B. E. Wood, Sr. Judgment for plaintiffs. From denial of petition to vacate same, defendant brings error.

<p>1. GARNISHMENT — Indian Territory Procedure. Under the laws in force in the Indian Territory at the time of the/ erection of the state, it was only in suits by attachment that writs of garnishment were authorized to be issued against a -defendant before! judgment.</p> <p>2. SAMÉ. In such cases, not only an affidavit, but also a bond, was required, and the failure to make and file either would operate, on timely motion, to cause the writ of garnishment to 'be quashed' and the garnishee to be discharged.</p> <p>3. APPEAL AND ERROR — Reaord—Evidence—Showing of Prejudice. An action in equity pending on the equity side of the docket at the time of the eretetion of the state was required to be transferred to the district .court of the' state where both law and equity were administered from the same docket, and the answer of the defendant having raised an issue of fact which, if decided in her favor, would conclude the plaintiff as to. all the equitable relief sought, thoug'h there had previously been error committed in denying such preliminary relief the plaintiff having refused to introduce evidence to meet the issue raised on the part of the defendant, and not having brought up as a part of the record the evidence introduced on the part of the defendant, it does not affirmatively appear that any prejudicial error was committed against plaintiff.</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; John J. Carney, Judge. </p> <p>Action between The Art Wall Paper Mill and J. W. Ripe)' & Son. Prom the judgment, J. W. Ripey & Son bring error.</p> <p>Citing: Ex parte Anthony 5 Ark. 258; Simpson’v. Simpson, 25 Ark. 467; Andrew v. Bum-sey, 75 111. 598; Condon v. Gore, 42 Atl. 90; Griffin v. Leslie, 20 Md. 15; Hurlbert v. Palmer, 59 Neb. 157, 57 N. W. 1019; Kitchell v. Beach, 35 N. J. Eq. 446; Titus v. Latimer, 5 Tex. 433; Smock v. Bank, 22 Okla. 825; Crittenden v. Schermerhorn, 35 Mich. 370.</p>

<p> Original Action In Prohibition. </p> <p>Action by the State ex rel. Attorney General against A. H. Huston, District Judge, and others.</p> <p>Copies of briefs did not reach the reporter.</p>

<p> Oñgvnal Action for Writ of Mandamus. </p> <p>Action by the State, upon the relation of Charles A? Taylor, State Examiner and Inspector, against E. B. Cockrell, State Bank Commissioner.</p>

Error from District Court, Craig County; T. L. Brown, Judge Action by H. H. Byrd against C. H. Hammett and others From a judgment for defendants, ‘ plaintiff brings error.

<p> Error from District Court, Muskogee County; John PL. Pitchford, Judge. </p> <p>Actiqn by T. H. Martin against A. E. MeGarr. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Cowl, Comanche Cowniy; J. T. Johnson, Judge. </p> <p>Action by J. H. J. Holcomb against the Chicago, Rock Island and Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Paiunee County j Bayard T. Plainer, Judge. Action by Mary B. Herbert against S. R. Wagg and others. From a judgment in favor of certain defendants,, the plaintiff brings error. Copies of briefs did not reach the reporter.

<p>1. USU.RY — Action to Recover Penalty — Parties. Two joint makers of a note to a national .bank who have separately, but from a joint fund, paid usurious interest on the noté, may jointly maintain an action to recover the penalty provided by section 5198 of U. S. Eev. Statutes.</p> <p>2. SAME — Burden of Proof — Knowingly Receiving. One who seeks to recover the penalty under said section has upon him the burden to establish that he has paid a greater amount of interest than the legal rate, and that the bank received said usurious amount knowingly.</p> <p>3. SAME — Instructions. It is error to instruct the jury that plaintiff is entitled to recover if the jury finds that plaintiff has paid a greater rate of interest than the legal rate and to refuse, upon request of defendant, to instruct the jury that it must find also that the usurious interest was knowingly received by defendant.</p> <p>(Syllabus by the Court.)</p>

<p>1. PRINCIPAL AND AGENT — Authority of Agent — Evidence. The apparent authority oí an agent is to be gathered from all the facts and circumstances in evidence, and is a question of fact for the jury.</p> <p>2. SAME — Ratification of Agent’s Acts — Presumption from Silence. Eatification of an unauthorized act of an agent may be presumed from long continued silence of a principal who has knowledge of the facts constituting such ratification.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Johnston County Court j Niele Wolfe. Judge. </p> <p>Action by H. A. Ellis against the First National Bank of Mill Creek. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Pontotoc County Court; Joe Terrell, Judge. </p> <p>Action by the First National B'ank of Stonewall against W. P. Jeffrey and G-. H. Angelly. Judgment for defendants, and plaintiff appeals.</p>

<p>APPEAL AND ERROR — Subsequent Appeal — Law of the Case. If, upon a cause being remanded with directions to enter judg■ment in accordance with the opinion of the Supreme Court, the court below enters judgment in substantial conformity with the directions of the appellate court, its action will not be disturbed on a second proceeding in error.</p> <p>('Syllabus by the Court.)</p>

<p>1. . PLEADING — Variance—Estoppel to Complain. T. sued M. for the conversion of 1,500 cross-ties. M. having moved the court to require T. to make his petition more definite and certain, T. was thereby caused to insert therein the following clause, to wit: “* * by his then and there taking them and sawing off the ends of them, and by pounding with an ax or hammer the said marks off of the ends of them, and then and there painting the said changed ends of them red - * On the trial the evidence tended to show that the ends of the ties had neither been sawed nor cut off, but that the brands or marks had been allowed to remain, and red paint daubed over the same. M. complaining of a variance, held that, M. having caused such unnecessary allegation to be inserted in T.’s petition, he cannot now be heard to assign as error such alleged variance in the proof.</p> <p>2. NEW TRIAL — Grounds—Surprise—Newly Discovered Evidence-Sufficiency of Showing, (a) A party surprised during a trial, upon discovery of a mistake that will prejudice his interest, should immediately move for continuance or for such delay as would permit him to properly meet the issue.</p> <p>(b) He will not be permitted to speculate upon the verdict of the jury and afterwards, for the first time, in his motion for new trial raise the question of surprise.</p> <p>(c) To be entitled to a new trial on the ground of newly discovered evidence, the motion should set forth the names and place of residence of the witnesses, what they would testify to, and be accompanied by the affidavits of said witnesses or give a sufficient reason for not producing same; facts must also be set out showing diligence and negativing fault on the part of the movant.</p> <p>3. EVIDENCE — Oral Proof of Accounts. Oral proof as to the number of ties bought, though account of such ties is kept on books in due course of business, is admissible, without laying any predicate as to said books.</p> <p>(Syllabus by the Court.)</p>

<p>USURY — Pleading—Sufficiency of Petition. A petition ■ filed for the purpose of recovering alleged usurious interest by the party contracting for the payment of same should allege that the usurious interest had been paid and that the taking and receiving of the interest was knowingly done, and where these averments are lacking it is error to overrule a general'demurrer thereto.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Evidence—Sufficiency.. Where the jury is properly instructed upon an issue of fact joined by the pleadings, and there is evidence reasonably tending to support their finding on that issue, their verdict will not be disturbed by the Supreme Court.</p> <p>2. NEW TRIAL — New Evidence — Diligence—Sufficiency of Showing. A motion for new trial on the ground of newly discovered evidence should show that the applicant used due diligence to pro- . cure and present the evidence on the trial, and the facts constituting the diligence must be shown so that the court may determine whether the diligence Was sufficient.</p> <p>3. FRAUDS, STATUTE OF — Contracts Relating to Real Estate. In an action by the receiver of an insolvent bank against one of its former customers upon an overdraft and certain promissory notes, as a partial defense it was alleged, and the evidence tended to prove, that the defendant was the owner of a certain farm, which farm was sold to one A-, and later to said hank; whereupon it was agreed between said A. and said defendant and said bank that said A. would execute to said bank a promissory note in the sum of $2,000 for the purpose of securing said overdraft, ’and that the balance of said sum, after paying said overdraft, was to be credited to the account of said defendant with said bank. Hold, that this contract, as between the bank and! the defendant, did not constitute a transaction involving real estate within the purview of the statute of frauds.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Ohfuslcee County; John Carnihers, Judge.</p> <p>Action by Jennie J- Scraper against William Boggs and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from, Caddo County Courtj W. W. Vaughan, Judge.</p> <p>Action by Wm. Houston against the St. Louis and San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Marshall County; D. A. Richardson, Judge. </p> <p>Action by the State Life Insurance Company against H. Chowning. Judgment for defendant, and plaintiff brings error.</p>

<p>1. NEW TRIAL — Forcible Entry and Detainer — New Trial as Matter of Right. The party against whom a judgment is rendered in a forcible entry and detainer case 'is not entitled to a new trial by the same court as a matter of right.</p> <p>2. APPEAL AND ERROR — Failure to Present and Reserve Grounds of Review. The failure of the' trial court to pass upon a motion filed by the losing party is not reversible error where the record does not affirmatively show that the motion was called to the attention of the court, that the court refused to pass upon It, and that an exception was taken to the ruling of the court.</p> <p>3. JUSTICES OF THE PEACE — Appeals—Preservation of Issues on Appeal. On appeal from a justice of the peace to the county count every portion of plaintiff’s cause of action which was In issue in the justice’s court will remain in' issue, although defendants do not file an answer or any new or amended pleadings.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Defect of Parties — Dismissal. All persons against whom a joint judgment has been rendered must be made parties to a proceeding to reverse such judgment, and a failure to join any of them, either as plaintiffs or defendants, is ground for the dismissal of the case.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Exclusion of Evidence of Admitted Facts. The exclusion of evidence tending to prove an issue of fact joined by the pleading's is not reversible error when it appears from the record that .that issue has been admitted by counsel for the party prosecuting, the proceeding in error.</p> <p>2. APPEAL AND ERROR — Instructions—Necessity of Requests and Objections. The failure of the trial court to instruct the jury that three-fourths of their number concurring may return a verdict is not reversible error when the verdict is unanimous, . and the record shows that there was no request for such an instruction and no objection made or exception saved to the action of the court in not giving such instruction.</p> <p>(Syllabus by the Court.) *</p>

<p>APPEAL AND ERROR — Record—Necessity of Case-Made or Bill of Exceptions. A motion presented to the trial court to quash service of summons upon the ground that defendant was a nonresident of the county in which the action was instituted, and that sei'vice of summons was made upon him while he was within the county in attendance upon the court under its process, and the ruling- of the court thereon, are not properly part of the record and can only be preserved and presented for review on appeal to this court by incorporating the- same in a bill of exceptions or cas-e-made.</p> <p>(Syllabus by the Court.)</p> <p> Error from Pontotoc County Court; ■Top Terrell, Judge. </p>

<p>1. ATTACHMENT — Forthcoming Bonds — Validity. A forthcoming bond in attachment will be held good as a common-law bond, though it does not conform to the statute, if it does not contravene public,policy or violate the law, and may be enforced in an ordinary action at law.</p> <p>2. SAME — 'Recitals in Bond — Conclusiveness. Where a forthcoming bond in attachment recites the value of the property attached in a suit thereoin, where the execution of the bond' is admitted, the defendants are estopped from denying the truth of its recitals.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Jurisdiction—Appeals from County Courts. The Supreme Court is without jurisdiction to review, upon appeal thereto, an order or judgment of a county court made in an appeal to such court from am order of the county equalization boaxidi</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Okmulgee County; W. L. Barnum, Judge.</p> <p>Action by Frank E. Lamb against Samuel P. Baker. Judgment for defendant, and plaintiff brings error.</p>

Original Proceeding for Division of County Assets,- Will Linn, Esq., Special Master. Original action on the petition of Harper county for a division of the assets and liabilities of Woodward county.

<p>APPEAL. AND ERROR — Failure to File Briefs — Dismissal. Where attorneys of record for plaintiff in error fail to observe rule vii of this court, (20 Okla. viii) a motion to dismiss the proceeding in error may be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Time for Taking Appeal — Order Overruling Demurrer. Although moré than one year has intervened between the order of the court overruling defendant’s demurrer to plaintiff’s petition, and the filing of the petition in error in the Supreme Court, this court will review the action of the court in overruling said demurrer on proceedings in error to review the final judgment, commenced within the statutory time.</p> <p>2. REPLEVIN — Fraud—Possession—Sufficiency of Petition. Where a petition in replevin, after stating facts to show the jewelry to have been parted with by plaintiff in a trade to W. as a result of his fraud, stated that, after rescission and demand for its return, W. sold and “delivered said jewelry to” E., who “now claims said jewelry or an interest therein,” and that, by reason of “said false, fraudulent, and wrongful detention of .said property,” she was _ damaged, etc. — held, that the same states facts sufficient to show E. in possession of the property at the commencement of the action.</p> <p>3. SAME — Necessity for Demand — Bona fide Purchaser — Pre-exist-ing Debt. A petition in replevin which, after stating facts sufficient to show the jewelry to have been parted with by plaintiff in a trade to W. as a result of his fraud, stated that, after rescission and demand for its return, W. sold it to E. for the consideration only of a credit on a promissory note theretofore executed, evidencing a debt pre-existing between, them, and “delivered said jewelry to” E., “who now claims said jewelry or an interest therein,” and that, by reason “of said false, fraudulent, and wrongful detention of said property,” she was damaged, etc. —held, that the same states facts sufficient to show that E. came wrongfully 'into possession of the property, and ■ that a demand for its return was unnecessary before the commencement of the suit.</p> <p>4. SAME. Where W. secured possession of a stock of jewelry, the property of F., as the result of fraud in a trade with her and, after rescission and demand for its return, sold it to -E. for the consideration only of a credit on a promissory note theretofore executed, evidencing a debt pre-existing between them — held, that E. was not a bona fide purchaser for valúe, and that F. was entitled to recover from E. in replevin the property or its value.</p> <p>5. PROPERTY — Possession—Presumption of Continuation. Possession being a fact continuous in its nature, when its existence is once shown, it will be presumed to continue until the contrary is proved.</p> <p>6. APPEAL AND ERROR — Filing of Cross-Petition — Expiration of Time. This court has no jurisdiction to entertain a cross-petition in error, unless the same be filed within one year after the rendition of the judgment complained of.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTINUANCE — Application—Showing of Diligence. In an application for continuance it is not sufficient to- allege that due diligence has been used. The facts constituting the due diligence must be set forth, in order that the court may determine whether due diligence has been used.</p> <p>2. VENUE — Application for Change — Discretion of Court. The court, by section 4256 of Wilson’s Reiv. and Ann. Statutes, is vested with the sound discretion, upon showing made therefor by an applicant, to grant or refuse a change of venue; and on appeal, unless it appears there has beekn an abuse of this discretion, the action of the trial court will not be disturbed.</p> <p>3. ■ CONTRACTS — Orders for Money — Conditional Acceptance — Effect. M. delivered to C. the following order: “Mr. C., please pay to M. the sum of two hundred and two and no-100 dollars out of the money for my land, (signed) Johnson Buford,” which was accepted in the following language: “I, C„ accept the above order and agree to pay the same to M., provided Johnson Buford makes me a deed to said land when he becomes of age. (signed) C.” Held, that C. was bound by the conditional acceptance, and when Buford, on attaining his majority, executed a deled to his land to C., C. must pay the amount of the order or draft.</p> <p>4. SAME — Fulfillment of Condition — Conclusiveness Against Acceptor. The acceptance by C. of the order or draft was an. admission by him of the capacity and authority of the drawer to draw it; and he cannot bd heard to say, after tho terms of the conditional acceptance have been fulfilled, that the drawer was a minor and upon attaining his majority rescinded the order.</p> <p>5. SAME — Relations of Parties — Rights of Payee. Upon the fulfillment of the terms of the conditional acceptance. C. became bound as the principal debtor to M., and M., the payee, was not bound to retain mortgaged property or to /foreclose a mortgage given to him by the drawer before he could 'maintain an action against C., the acceptor.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—Abstract Propositions. The Supreme Court will not decide abstract or hypothetical cases disconnected irom the granting of actual relief or from the determination of which no practical relief can follow.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court. Pawnee Countyj L. M. Poe, Judge. </p> <p>Action by S. N. Treese against M. A. Wiers and W. A. Moore. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Syllabus same as in Leavitt v. Commercial Nat. Bank, 26 Okla. 164, 109 Pac. 71.</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Syllabus same as in Leavitt v. Commercial Nat. Bank, 26 Okla. 164, 109 Pac. 71.</p>

Error from District Court, Wlashington Coimty; J. J. Shea, Judge. Action between the Graham- Paper Company and the Bartles-ville Publishing Company. Judgment for the latter, and the paper company brings error.

<p>Action between Charles E. Davis and Stewart Humbarger, executor for the estate of Otto Botcher, deceased. From the judgment, Davis brings error.</p>

<p> Error from District Court, Lincoln Qowrvty; W. N. Mdben, Judge. </p> <p>Action by the Bank of Meeker against Y. S. Ellison and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Original Proceeding for Disbarment. </p> <p>Proceeding by the State, on the' relation of J. D. Cox and others, against J. J. Ewers.</p>

Error from District' Court, Muskogee County; R. McMillan, Judge. Action by Jesse B. Thomas against John E. Thomas. Judgment for defendant, and plaintiff brings error. • No copies of briefs reached the reporter.

<p> Appeal from Corporation Commission. </p> <p>The Kansas City Southern Railway Company was ordered by the Corporation Commission to install telegraph service at the town of Gans, and appealed.</p>

<p> Original Proceeding of Ancillary Injunction. </p> <p>Action' by the State, on the relation of U. L. Standeven, County Attorney, and the Commissioners of Kiowa County against J. E. Armstrong, C. E. Bull and J. W. Wilcox, County Commissioners, and others.</p>

<p>CORPORATION COMMISSION — Orders—Evidence to Sustain. When the Corporation Commission does not file with the record of the case a written statement of the reasons upon which an order appealed from is based, as required by section 22, art 9, ' of the Constitution, and such order is entirely unsupported by any evidence, it must be set aside.</p> <p>(Syllabus by the Court.)</p>

<p>BANKS AND BANKING — Payment of Forged Check — Right to Recover from Payee. A payee receiving money from a bank upon a check purporting to be drawn upon it toy one of its depositors but the signature of which was in fact forged, is. not entitled to retain the same, except upon the following combination of facts: First, that the payee was not negligent in receiving the check; second, that the payor was lacking in due care in paying the same; and third, that upon the payor’s action the payee has changed his' position or would he In a worse condition if the mistake was corrected than if the payor had refused to pay the check at the time of its presentment.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Evidence—Sufficiency. Where there is a conflict in the testimony introduced on the trial of an action, this court will not reverse the judgment of the trial court if the evidence of the successful party, when considered by itself, is sufficient to sustain the verdict.</p> <p>2. TORTS — Contracts—Violation—Action in Tort. Where the relation between the parties to an action has been established by contract, express or implied, if the law imposes certain duties because of the existence of the relationship created, a violation * of the contract obligations may be waived and an action in tort maintained for any violation of such imposed duties.</p> <p>3. DAMAGES — Sale of Diseased Animals — Exemplary Damages. In an action in which it is alleged that defendant by fraud and deceit induced plaintiff to purchase certain hogs which at that time the defendant well knew were infected with cholera, it is not error, under the provisions of section 2887, Comp. Laws of Okla. 1909, to instruct the jury that if it found from the evidence that the defendant, knowing said hogs to be diseased with the cholera, falsely and wilfully represented to plaintiffs that the hogs sold and delivered were sound in he'alth and condition and good stock hogs, and that plaintiffs had not examined them prior to the purchase, but relied upon such representations and such representations were false, and that said hogs were infected with cholera, that the defendant was liable to the plaintiffs, in addition to the amount of actual damages which had been sustained, a reasonable sum as exemplary damages for sake of example and punishment for the wrong done.</p> <p>4. NEW TRIAL — Grounds—Newly Discovered Evidence — Diligence. Where from the face of a motion for new trial on the ground of newly discovered evidence, as well as from all of the facts in the ■case, it is manifest that movant had failed to exercise reasonable diligence to secure the alleged newly discovered evidence in time for the trial, and which it is reasonably apparent could have been secured had proper diligence been Exercised, the denial of a motion for new trial based on this ground is not error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Caddo County Court; B. F. Holding, Judge. </p> <p>Action by W. W. Beatty against the Chicago, Bock Island and Pacific Bailway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Logm County; A. H. Huston, Judge. </p> <p>Action between W. T. Walker and the Missouri, Kansas & Texas Railway Company. From the judgment, the railway company brings error.</p>

<p>1. OFFICERS — Prohibition Enforcement Attorney — Constitutionality — Powers. Section 24, art. 3 of the Enforcing Act (Session Laws 1907-8, p. 612), empowering the Governor to appoint an attorney as counsel to the Governor, whose duty it shall be to enforce the provisions of said act, relating to the prohibition, etc., of intoxicating liquors, etc., is not repugnant to section 1, art. 4 of the iConstitution.</p> <p>. (a) Such officer, as counsel to the Governor, is authorized to bring actions in the name of the state to recover penalties under said act.</p> <p>2. APPEAL AND ERROR — Specification of Error — Necessity. Same as paragraph 7 of syllabu’s in Noble State Bank v. Haskell et al., 2'2 Okla. 48, 97 Pac. 590. '</p> <p>(Syllabus by the Court.)</p>

<p> Original Proceeding in Habeas Corpus. </p> <p>Habeas corpus by Prank Buck against R. W. Dick, Warden of the State Penitentiary.</p>

<p>1. EVIIDENiCiE — City Ordinances. — Admissibility—Harmless Error. An, ordinance of a city, when certified under the hand of the proper officer, and having the corporate seal of such city affixed thereto, may toe received in evidence.</p> <p>(a) Courts, in civil actions, will not take judicial notice of such ordinance.</p> <p>(to) The erroneously receiving such ordinance in evidence, it affirmatively appearing that it did not influence the finding of the court, was without injury, and therefore not reversible error.</p> <p>2. APPEAL AND ERROR — Review—Dissolution of Injunction— Discretion. The dissolution of an injunction is largely a matter of judicial discretion, to be determined by the facts of each particular case; and, except in cases of palpable abuse of such discretion or a clear showing of error on the part of the trial court, the reviewing court will not interfere with or in any' manner •control this discretion.</p> <p>3. EMINENT DOMAIN — Municipal Corporations — Sewerage Outlet. Under section 3330, Comp. Laws 1909 (Session Laws 1907-8, p. 261), any city is empowered to condemn lands in like manner as railroads for right of way, outlet, or outfall for its sewerage system.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Brief. Same as that of Leavitt v. Commercial National Bank, 26 Okla. 164, 109 Pac. 71.</p> <p>(Syllabus by the Court.)</p>