Volume 28 — Oklahoma Reports

Error from District Court, Rogers County; T. L. Brown, Judge. Ejectment by Ella M. Adkinson by her next friend, J. M. Adkinson, against the Denver, Wichita & Memphis Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Johnston County; Bobert M. Bainey, Judge. </p> <p>Action by R. M. Harris against the Tishomingo Electric Light & Power Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Appeal from the Corporation Commission. </p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by Ben R. LaDow against tbe Oklahoma Gas & Electric Company. Judgment for defendant, and plaintiff brings error.</p>

<p>SALES — Refusal to Accept — Action for Price — Sufficiency of Evidence. Evidence examined and held sufficient to require the case to he submitted to the jury, and that defendant’s demurrer thereto was improperly sustained.</p> <p>(Syllabus by the court.)</p>

<p> Error from District Court, Oklahoma' Ccnmtyj Geo. W. Clark, Judge. </p> <p>Action by Charles A. McNabb and Callie L. McNabb, his wife, against John W. Hunt and D. E. Sawyer. Judgment for defendant Sawyer, and plaintiffs bring error.</p>

Error from District Court, Texas County; R. II. Loofbourrow, Judge. Action by Levi Arnold against the First National Bank of' Guymon, Ivan Perkins intervening. Judgment for plaintiff, and defendant and lintervenor bring error.

<p>1. LANDLORD AND TENANT — Leases — Covenants — Conditions Precedent. One of the covenants in the lease of a farm for one year was that the lessors were to inclose the premises wltn fence sufficient to turn live stock, the same to be completed in time for the occupancy thereof by the lessee. At the time of its execution, the lessee was in, possession and enjoyed the premises until August of that year, when he abandoned same, but returned in October and harvested a crop of cane thereon. Held, that the covenant to repair was not a condition precedent, and that the lessors were entitled to recover the rent, notwithstanding their breach of said covenant.</p> <p>2. LANDLORD AND TENANT — Actions for Rent — Cross-Action for Failure to Repaii — Measure of Damages. In an action for rent by a landlord against his tenant under a lease, the 'measure of defendant’s damages, in a cross-action for failure to fence, is the difference between the rental value of the premises as they were and what they would have been if repaired as covenanted in the lease, taking into consideration the purposes for which they were to be used.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Western District of the Indian Territory, at Tulsa; Willicm B. Lawrence, Judge. Action by Jiidson C. Fast against John W. Sanders and others. Judgment lor plaintiff, and defendant brings error.

<p>1. APPEARANCE — What Constitutes — Moving for New Trial. A defendant who files a motion for a new trial in a case after judgment which is based on non-jurisdictional grounds, thereby enters a general appearance.</p> <p>2. APPEAL AND ERROR — Defect of Parties — Dismissal. 'A petition in error by two or three defendants, against whom judg-. ment was entered jointly for the. recovery of a specified sum, to which the other defendant is neither made a party plaintiff nor defendant in error, must be dismissed for want of necessary parties.</p> <p>(Syllabus by the Court.)</p>

Error from the United States Court for the Western District of the Indian Territory, at Tulsa; William B. Lawrence, Judge. Ejectment by Howard M. Stonebraker against George W. Barnes, Jr. Judgment for plaintiff, and defendant brought error to the United States Court of Appeals for the Indian Territory, whence the cause was transferred to the Supreme Court of the state of Oklahoma.

<p> Original Petition for Writ of Mandamus. </p> <p>Mandamus by the Regents of the State University of Oklahoma against M. E. Trapp, State Auditor.</p>

<p>1. STATUTES — Legislative Records — Signed Bill Conclusive Evidence. When an enrolled bill has been signed by the Speaker of the House and by the President of the Senate, respectively, in the presence of those bodies immediately after the bill has been read publicly at length, and the same has been approved by the Governor and deposited in the office of the Secretary of State, it is not competent to show from the Journals of the House that the act so authenticated, approved and deposited did not pass in the form in which it was signed by the presiding officers and approved by the Governor.</p> <p>2. TAXATION — Constitutional Law — Power of Legislature. That portion of section 2, article 7, ch. 38 (Sess. Laws 1909), being part of an act entitled “An act for raising and collecting revenues,” approved March 10. 1909, which levies annually one-fourth of one mill ad valorem tax for common-school purposes, does not violate section 20, article 10 of the Constitution.</p> <p>(Syllabus by the Court.)</p>

Action before the Corporation Commission by E. B. Miller and others to compel the Atchison, Topeka & Santa Fe Railway Company to operate a Sunday train. Order for plaintiffs, and defendant brings error.

From an order of the Corporation Commission requiring the Missouri, Oklahoma and Gulf Railway Company to establish a stop station and side tracks at Kemp City, the company appeals.

<p>Action by W. H. Coyle against Thomas P. Smith and others for an injunction.</p>

Error from District Court,, Logam, County; A. II. Huston, Judge. Action by the State oí Oklahoma on the relation of James Hepburn, County Attorney, against Thomas P. Smith, Secretary of State, and other state officers. From an order granting a temporary injunction, defendants bring error.

<p>Error from District Court. Grech County; IF. L. Bcernum, Judge.</p> <p>Habeas corpus by Mattie A. Smythe against William Smythe. Defendant was committed for contempt, and brings error.</p>

<p>Application by the State, on the relation of Lee Cruce, for a writ of mandamus to Frank P. Cease and others.</p>

<p>1. STATUTES — Local and Special Laws — Discretion of Legislature. Under section 59, art. 5, of the Constitution which directs that no local or special law shall be enacted where a general, law can be made applicable, the Legislature must determine whether a general law oan be made applicable to the -subject-matter in regard to which a special or local law is enacted; and a local or spee;al law enacted in such case will ibe held valid by the courts.</p> <p>2. SAME — Constitutional Limitations. Section 46, art. 5, Constitution, prohibits the enactment of special or local laws upon any of the. subjects therein named, éxcept such local or s-pec'-al legislation upon said subjects as are authorized by other provisions of the Constitution.</p> <p>3. SAME — Special Act Creating Superior Court. The act of the Legislature approved March 12, 1910 (Laws 1910, c. 47,) establishing a county superior court in the city of Cl'nton, Custer county, does- not violate those provisions of section 46, art. 5, of the Constitution, prohibiting the enactment of local o-r special laws regulating the affairs of counties or cities, creating offices in counties, or regulating the jurisdiction of courts-.</p> <p>4. EVIDENCE — A*dmissibility—Agency. In an action by physicians against an oil mill company for services rendered its employee, plaintiffs were permitted to testify that the messenger who cal’ed for them stated he had been sent by the president or manager of the company, and that the company would pay for the services. Held error in the absence of any other evidence showing such messenger to be the agent of the company.</p> <p>5. PRINCIPAL AND AGENT — Admissibility of Evidence — Agency. The company defended against any liability on the ground that its manager did not contract for or request the services of plaintiffs, and that, if he did he was without authority to bind the company. The court refused to permit the manager to testify as to what his authority was, and that he had no authority from the company to em-ploy physicians to serve its employees in this class of cases. Held error.</p> <p>(Syllabus by the Court.)</p>

<p>Error from Kiowa County Court; J. W. Mmsell, Judge.</p> <p>Action by the Superior Manufacturing Company against School District No. 63, Kiowa, County. Judgment for defendant, and plaintiff brings error.</p>

<p>WILLS — Revocation—Subsequent Will Defectively Executed. Though the subsequent will contains a clause expressly revoking the earlier will, yet, if such subsequent will is defectively executed, thie revocatory clause will not take effect.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Case-Made Settled in Party’s Absence. 'Same as paragraph 1 in First National Bank of Collins-ville v. Daniels, 26 Okla. 383, 108 Pac. 748.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Case-Made'—Sufficiency—Extension of Time. A purported order of the trial judge, extending the time in which to make and serve a case-made, is without force, where the case-made fails to show affirmatively that -such order was ever filed as a part of the record in the case in the lower court, or entered upon the record or the journal of said court.</p> <p>(Syllaibus by the Court.)</p>

<p> Error from District Gouri, Logan 0amity; A. Ii. JIusion, Judge. </p> <p>Action by Nora Meyer against W. K. Patterson and others. Judgment for plaintiff, and defendants bring error.</p>

Action by F. M. Floyd against the Tootle, Wheeler & Motter Mercantile Company. Judgment for plaintiff, and defendant brings error. Defendant in error originally brought this action against plaintiff in error in a justice of the peace court to recover the sum of $150 as rents on his certain building situated in the city of' Pawhuska for the month of April, 1908, and for attachment against plaintiff in error’s property to enforce the judgment.

<p>1. MANDAMUS — Sufficiency of Motion. In mandamus, pursuant to Wilson’s St. Okla., sec. 4888,, it is unnecessary to allege in the motion the eligibility of t'he parties stated therein to have been elected to office.</p> <p>2. MANDAMUS — Grounds of Relief — Recognition of Officers. Where relators show prima facie title to the office, they are entitled to the aid of mandamus to compel their recognition as members of the board of trustees of an incorporated town and their right to officially participate in its deliberations.</p> <p>3. MANDAMUS — Pleading—Answer. Where, in mandamus, pursuant to Wilson’s St. Okla., sec. 4888. defendants, by appearing, waive the issuance of the alternative writ and the rule to show cause, and demur, the court will treat such pleading as an answer admitting the facts recited in the motion, and apply the law thereto.</p> <p>(Syllabus-by the Court.)</p>

Error from District Court, Canadian County; A. II. Huston, Special Judge. Action by P. J. De Yitt and others against the City of El Reno and another. Judgment for defendants, and plaintiffs bring error.

Error from District Gowt, Comanche County; J. T. Johnson„ Judge. Action by School District No. 49 against the Board of Education of the City of Lawton and another. There was a judgment dismissing the petition. From a subsequent judgment, granting a new trial, defendants bring error.

<p>Error from Disiriei Oourt, Kay County; William M. Bowles, Jucbge.</p> <p>Action by Gus Christy against the Union Oil & Gas Company. Judgment for defendant, and .plaintiff brings error.</p>

<p> Error from. District Court, Kay County; W\ M. Bowles, Judge. </p> <p>Action by John Shirley against the Union Oil & Gas Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. JUSTICES OF THE PEACE — Jurisdiction—Construction of Statutes. Statutes conferring jurisdiction upon justices of the peace are to he strictly construed, and are not to he aided or extended by implication beyond their express terms.</p> <p>2. JUSTICES OF THE PEACE — Right of Appeal. The action was commenced before a justice of the peace prior to statehood, the amount claimed being less' than $20. Summons was duly had upon the defendant, who made no appearance prior to the rendition of judgment. On the day set for trial the .plaintiff appeared and demanded a jury, which was selected, and impaneled, and Which, after -hearing, returned a verdict for the plaintiff for a sum less than $20. Held, that the plaintiff was not entitled to a trial by jury, and that the defendant was not denied the right of appeal by section 6359, Compiled Laws of Oklahoma 1909, which provides that in all civil actions after an appearance of the defendant, and before the justice shall proceed to incluiré into the merits of the cause, either party may demand a jury to try the action, which jury shall be composed of six good and lawful men, having the qualifications of jurors in the district court, unless the parties shall agree on a less number.</p> <p>(Syllabus by the Coiirt.)</p>

<p>JUSTICES OF THE ¡PEACE — Right of Appeal. Syllabus same as St. L. & S. F. R. R. Co. v. Couch, Justice of the Peace (handed down this term) ante, 114 Pac. 694.</p> <p>Turner; C. J., and Williams J., dissenting-'.</p> <p>(SyLabus by the Court.)</p>

Error from District Court, Custer County; -Jas. B. Tolbert, Judge. Action by Homer R. Dodder and others against W. T. L. Moberly, in which R. J. Shive intervenes. From the judgment, plaintiffs bring error; defendant and intervenor prosecuting a cross-appeal.

Error from, District Court, Oklahoma- Countyj George W. Clark, Judge. . Action by Daisy J. Stephens and Beatrice Stephens, a minor, and B'ernice Stephens, a minor, by Daisy .Stephens, their next friend, against the Oklahoma City Railway Company and others. Judgment for defendant. railway company, and plaintiffs bring error.

<p>Error from District Cowl, Oklahoma County; IF. M. Bowies, Judge.</p> <p>.. Action between M. C. Binion, Sheriff, and the Oklahoma Gas & Electric Company. From a judgment in favor of the latter, the former brings error.</p>

<p>1. ACCORD AND SATISFACTION — What Constltutesr-Partial Execution. An accord must be completely executed to sustain a plea of accord and satisfaction. A part execution and tender of performance of the residue is insufficient.</p> <p>2. SAME — Evidence. Where, in an action on certain promissory notes, defendant pleaded accord and satisfaction, in effect, that pending the action it was agreed between defendant and plaintiff’s agent that plaintiff would accept of defendant in full satisfaction of said notes certain lots, whereupon defendant place'd- him in possession and later tendered a deed therefor, which was refused, and the evidence! supported the plea, held, that a judgment for defendant was contrary to law.</p> <p>(Syllabus by the Court.)</p>

Action by the State against the St. Louis, Iron Mountain & Southern Railway Companjr. From the judgment, the railway company brings error. Citing Atlantic C. L. B. Co. v.' N. C. Corp. Com., 206 IT. S. 1, and Mo. Pac. By. Co. v. Kansas ex ral., H. S. Sup. Ct. Reports, April 1, 1910. Chas. West, Atty. Gen., and Geo. A. Henshaw, Asst. Atty. Gen. (•/. A. Tillotson, of counsel), for the State.

Error from District Court, Cherokee County; Malcolm E. Rosser, Judge. Action by Sam Spade, a minor, by John Spade, guardian and next friend, against A. D. Morton, Jennie O. Morton, and the Prairie Oil and Gas Company. Judgment for defendants, and plaintiff brings error.

<p> Error from District Cowrt, Pittsburg County, Preslie B. Cole, Judge. </p> <p>Action by James Clark against the Cboetaw Electric Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Cowl, Tulsa, County; L. M. Poe, Judge.</p> <p>Action by Bessie Brown English against H. T. Richardson, County Treasurer. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Noble County; Wm. M. Bowies, Judge. </p> <p>Action by H. L. Boyes and others against George A. Masters and others. From the judgment plaintiffs bring error.</p>

<p>Error from' 'District Court, Tillman Countyj J. T. Johnson, Judge.</p> <p>Action by the Wichita Falls & Northwestern Eailway Company against Ira J. Holloman to condemn land. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Extension of Time to Settle— Powers of Special Judge. A special judge or judge pro tempore, while possessing the power to sign and settle a case-made after he has ceased to sit as judge, has no power to extend the time for its settlement and signing', and where he attempts to do so . 'his act is a nullity.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Tulsa County Court; N. J. Gubser, Judge. </p> <p>Action by the Erick-Reid Supply Company against W. A. Aggers. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Custer County; Jas. B. Tolbert, Judge.. </p> <p>Action by Simon Binswanger and others against Jeff Stanford and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from Oklahoma County Court; D. B. Welty, Special Judge. </p> <p>Action by Ella Lyle against M. C. Binion and another. Judgment for plaintiff, and defendants bring' error.</p>

<p>COURTS — Supreme Court — Original Jurisdiction — Quo Warranto. Quo warranto in the Supreme! Court, brought by a private relator, contesting the right of respondent to the office of county judge, will be dismissed, where there has been no showing that the relief demanded could not be secured by an action in the district court of the district in which the county lies.</p> <p>(Syllabus by the Court.)</p>

<p>1. SALES — Implied Warranty — Patented Machines. The law implies a warranty in a contract for the sale of patented machines that they are reasonably adapted to the purpose for which they are made.</p> <p>2. PATENTS — Sale of Right — Failure of Consideration. In a suit on a promissory note made, executed, and delivered by defendants to plaintiff for their share of the purchase price* of a patent right, where the answer pleaded a failure of consideration, the court did not err in charging, in effect, that the jury should find for the .plaintiff, unless the machines were not reasonably suited to the uses for which they were made.</p> <p>(Syllabus by the Court.)</p>

<p>SALES — Warranties—Well-Drilling Machinery. Certain vendees contracted with the manufacturer in writing to buy and pay for a well-drilling outfit, made by the latter and described in its cata-logue, at an agreed price. Before this contract was made, the vendees informed the agent of the vendor that they wanted a drilling machine to bore in a certain designated area in New Mexico for artesian water, and the ag'ent of the manufacturer assured them that the outfit would bore to a certain specified depth in such country. But the written contract was silent upon this subject. The vendees relied upon this assurance of the agent, and made the contract. The machinery was without defect as to quality and construction. Held, that there was no implied warranty that the drill and its machinery would bore in the specified area in New Mexico to a certain’ depth.</p> <p>(Syllabus by the Court.)</p>

<p>Proceeding by J. J. Beall, Frank Gwynn, and J. H. Olm-stead for a writ of habeas corpus.</p>

Error from Tulsa County Court; N. J. Gubser, Judge. Action by W. A. Cook and others against J. J. C. Bond and others. An appeal from justice court was dismissed. From an order refusing a new trial, defendants bring error.

<p>1. LIBEL AND SLANDER — Commercial Agency — Publication as to .Credit. The false publication by the defendant, a commercial agency, as to the plaintiff, who was engaged in business, in words, characters, and figures of the following: “v. — N. S. Sherman Machinery Oo. (Not Inc.) F-4.” — said words, characters, and figures being explained in such publication by an accompanying key as meaning, as to plaintiff’s credit, “$10,000 to $20,000, limited,” is not libelous per se.</p> <p>2. LIBEL AND SLANDER — Pleading—Special Damages. A publication not being libelous per se, an action cannot be maintained thereon, although same was false, without allegation and proof as to special injury or damage.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Review—Findings of Fact. Where special findings of fact are made by the court without the intervention of a jury and such findings are baseid in part on oral testimony, on review here, as a rule, they are conclusive upon any disputed or doubtful question of fact.</p> <p>2. ■ EJECTMENT — Right to Second Trial — Effect of Statehood. Under the laws in force in the' Indian Territory at the time of the erection of the state, the losing party in an ejectment suit was not entitled as a matter of right to a second trial.</p> <p>(a) As to pending ejectment actions, afterwards finally determined in the state district courts, the losing party as a matter of right was not entitled to a second trial.</p> <p>(Syllabus by -the Court.)</p>

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

<p>1. RAILROADS — Street Crossings — Power of Corporation Commission. Under the power conferred by section 18, art. 9. of the Constitution, to supervise, regulate, and control all transportation and transmission companies doing business in this state in all matters relating to their public duties, and of correcting abuses, the Corporation Commission has authority to require .a railway company to guard the intersections of its tracks with the streets of a city of the first class when they have become dangerous to the life or safety of the persons or their property using such railway for transportation as common carriers, by reason of the press of travel along the streets forming such crossings.</p> <p>2. CORPORATIONS — Prosecution Before Corporation Commission— Parties. Complaints against a public service corporation may be prosecuted before the Corporation Commission in the name of the state upon complaint by a private citizen who may be affected by the alleged violation of public duty.</p> <p>3. RAILROADS — Street Crossings — Maintaining Flagman — Powers of Corporation Commission. The fact that the relief granted incidentally casts upon the railway company the burden of maintaining a flagman at a street crossing in no wise interferes with the exercise of the police power conferred upon the Corporation Commission to interfere when such crossings become dangerous by reason of frequency of travel.</p> <p>4. SAME — 'Reasonableness of Order — Evidence. Evidence examined, and held to sustain the findings of the commission as to the reasonableness of the order appealed from.</p> <p>('Syllabus by the Court.)</p>

<p>INDIANS — Lands—Descent and Distribution- The threte allottees whose estates are involved herein were enrolled by the Commission -to the Five Civilized Tribes under section 28 oí the original agreement made with the Creeks, and ratified by act of Congress approved March 1, 1901 (chapter 676, 31 Stat. 861), and the same allotted in their respective names by the commission prior to the supplemental agreement made with the Creeks and ratified in 1902 by Act of Congress approved June 30, 1902 (chapter 1322, 32 Stat. 500). One died November 1, 1900, one died June 1, 1901, and one died December 25, 1901. Held, the Creek law of descent and distribution determines the heirs and their shares and portions as directed by the second paragraph of section 28 of the said original agreement, which declares that “all citizens who were living on the first day of April, 1899, entitled to be enrolled under section 21 of the Act of Congress approved June 28, 1898, entitled, ‘An act for the protection of the people of the Indian Territory and for other purposes’ (Act June 28, 1898, c. 517, 30 Stat. 502), shall be placed upon the rolls to be. made by said commission under said act of Congress, and if any such citizen has died since that time, or may hereafter die, before receiving his allotment of lands and distributive share of the funds of the' tribe, the lands and money to which he would be entitled, if living, shall descend to his heirs according to the laws of descent and distribution of the Creek Nation, and be allotted and distributed to them accordingly.”</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Corporation Commission — Orders Appealable. Order held not appealable upon the authority of St. L. & S. F. R. Co. v. State, 24 Okla. 805, 105 Pac. 351, A.", T. & S. F. Ry. Co. v. State, 24 Okla. 807, 105 Pac. 352. and No. 2029, A., T. & S. F. Ry. Co. v. State, 27 Okla. 329, 114 Pac. 721.</p> <p>(Syllabus by the Court.)</p>

<p>WITNESSES — Attendance—Recognizance. The power to hind a witness by recognizance to appear and give evidence in criminal cases is an extraordinary one, and cannot be exercised in the absenes of statutory authority.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Failure to File Briefs — Dismissal. Where plaintiff in error fails to file his "briefs within the time required by rule of court, and there is no resistance of a motion to dismiss on that ground, aind no request made for leave to file1 briefs out of time, the motion to dismiss should be sustained.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Gowrt, Pittsbwg County; Preslie B. Gole, Judge. </p> <p>Action between J. M. Lathim and G-. D. Schlack. From the judgment, Lathim brings error.</p>

<p>1. APPEAL AND ERROR — 'Reservation of Grounds — Necessity. The Supreme Court will not review alleged errors of the trial court, unless the error complained of is in some manner assigned for review by the petition in error.</p> <p>2. APPEARANCE — General Appearance. Where a motion is made in which questions are raised that go to the jurisdiction of the court over the parties, and in which questions are also raised that cannot be raised by special appearance, but can be heard only upon a general appearance, the parties will be taken and held to have entered a general appearance, and in such case defects in the service of summons will be deemed and held to have been waived, even though such appearance be made after judgment and upon a motion to vacate and set aside such judgment.</p> <p>(Syllabus by the Court.)</p>

Proceedings by tlie State and others against the Atchison, Topeka & Santa Fe Railway Company. From an order oí the Corporation Commission, directing defendant to stop certain trains when flagged at a specified station, defendant appeals.

Error from District Court, Washington County; T. L. Brown, Judge. Action by Yirgil Wantland, a minor, by J. W. Wantland, his next friend, against the Petroleum Iron Works Company. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Dismissal—Summons in Error — Time. A petition in error, although filed in this court within one year from the rendition of the judgment appealed from, will be dismissed, where no summons in error was issued or praecipe filed therefor within said time, and where there was no waiver of issuance and service of summons in error.</p> <p>2. APPEAL AND ERROR — Motion for New Trial — Necessity. A motion for a new trial is unnecessary to enable this court to review the action of a trial court in rendering judgment upon the pleadings.</p> <p>3. APPEAL AND ERROR — Transfer of Cause — Time. Where the judgment appealed from is rendered upon the pleadings, the time from which to perfect the appeal commences with the rendition of the judgment, and not from the order of the court overruling a motion for a new trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from■ Choctaw County Court; W. T. Glenn, Judge. </p> <p>Action by W. E. Farrar, administrator of Etta Thompson, against W. H. Howard and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Case-Made—Extension of Time. An order extending the time in which to make and serve a case-made provided “that defendant should be granted 60 days in which to make and serve a ease-made.” Held, that the period of time granted by the order began to run from the date of making the order, and not from the expiration of the statutory period of three days after entry of judgment appealed from in which to make and serve a case.</p> <p>2. SAME. Neither the court nor the judge thereof in vacation, after the time prescribed by the statute or granted by -the court within which to prepare and serve a case-made has expired, has power to extend the time fixed by statute or previously granted the court in which to make and serve a case-made.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pawnee County; L. M. Poe, Judge. </p> <p>Action between Rose Adams and John Ramsey and the Board of County Commissioners of Pawnee County. From the, judgment, Adams and Ramsey bring error.</p>

<p>APPEAL AND ERROR — Dismissal—Settlement of Controversy. Where on account of a settlement between parties to an appeal settling the matters in controversy, the questions raised by the appeal become abstract or hypothetical, and disconnected from the granting of any actual relief or from the determination of which no practical results can follow, except to determine who shall pay the cost of the proceedings, the cause will not be determined by this court, but will be dismissed.</p> <p>(Syllabus by the Court.).</p>

<p>TAXATION — Property Subject — Lands of Indians. Section 4 of an act of Congress of May 27, 1908, c. 199, 35 Stat. 312, 313, entitled “An act for the removal of restrictions from part of the land's of al-lotees of the Five Civilized Tribes, and for other purposes.” is valid, and under and by yirtue thereof the lands of all allottees of the Five Civilized Tribes of Indians, from which restrictions have been or shall be removed, are subject to taxation under the general laws of the state equally with the property of all other persons.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissenting.</p>

<p> Error from Superior Court, Logan County; J. M. Sandlin, Judge. </p> <p>Action by George W. Choate and others against M. E. Trapp, Secretary of the State Board of Equalization. Judgment for defendant, and plaintiffs bring error.</p>

<p>TAXATION — Property Subject — Lands of Indians. Section 4 of an act of Congress of May 27, 1908, c. 199, 35 'Stat. 312, 313, entitled “An act for the removal of restrictions from part of the lands of allottees of the Five Civilized Tribes, and for other purposes,” is valid, and under and by virtue thereof the lands of all allot-tees of the Five Civilized Tribes of Indians from which restric-. tions have been or shall be removed, are subject to taxation under the general laws of the state equally with the property of all persons.</p> <p>(Syllabus by the Court.)</p> <p>Kane J., dissenting.</p>

Error from District Court., Wagoner. County; John H. King, Judge. Action by Oscar Jeffers, administrator of the estate of Alex Clarkston, against Jasper W. Hensley, for conversion of certain cattle. Judgment for defendant, and plaintiff brings error.

<p>APPEAL AND . ERROR — Settlement of Case-Made — Necessity for Notice. Where no notice of the time of settlement of a case-inade is given or waived, and there is no appearance of the opposite party either in person or by counsel, a case so settled is a nullity, and no jurisdiction is vested' in this court to decide any question arising thereon.</p> <p>('Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Record—Motions Presented in Trial Court. Motions presented in the trial court, including a motion for a new trial and the ruling thereon and exceptions taken are not a part of the record proper, and can be preserved and presented for review on appeal only by incorporating the same into a bill of exceptions or case-made.</p> <p>2. , APPEAL AND ERROR — Record Proper. Under the uniform ruling in this jurisdiction, the record proper is made up of the petition, the process, return, pleadings subsequent thereto, reports, verdicts, orders, and judgments, and an error appearing upon the face thereof may be raised for the first time in this court on a transcript thereof accompanied by a petition in error duly presenting the same.</p> <p>3. APPEAL AND ERROR — Reservation of Grounds of Review. While the trial court may under a motion for a new trial duly filed to the report of a referee examine the evidence for the purpose of correcting errors occurring on the trial, this court may not do so unless the motion for new trial and the ruling thereon is brought into the record either by bill of exceptions or case-made.</p> <p>4. APPEAL AND ERROR — Review—Presumptions. Where it appears from the record that a referee was appointed and made his report with his findings of fact and' conclusions of law and the trial court has rendered judgment thereon, but the order making the appointment is not in the record, this court, on appeal for the purpose of sustaining the judgment entered, will presume the order of reference to be in all respects sufficient to support the judgment.</p> <p>5. REFERENCE — Conclusions of Law By Referee — Effect. The conclusions of law made by a referee on his findings of fact are in no particular binding upon the trial court, and they may be set aside or modified to any extent without a re-refererice of the case or report to the referee.</p> <p>6. REFERENCE — Report and «.Findings! — Correction—Authority of Court. The authority of a court to correct the findings of fact made by a referee, where the evidence is before it, is confined to those cases where the court may do so either under a stipulation by the parties or where, under section 5811, Comp. Laws of Oklahoma, 1909, it may direct a reference without the consent of the parties and to equitable actions where the parties have consented to the reference.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Choctaw County■; D. A. Richardson, Judge. Action by the Board of County Commissioners of Choctaw County against J. M. Meredith, as Sheriff of such county for malfeasance in office. From a judgment removing defendant from office, lie.brings error.

<p>1. PLEADING — Demurrer to Supplemental Petition — Sctope. A demurrer to a supplemental petition filed pursuant to Wilson’s Rev. & Ann. 'St. Okla. 1903, sec. 4348, runs to the allegations of both the original and supplemental petitions.</p> <p>2. PLEADING — Waiver of Objections — Filing Answer and Going to Trial. Where plaintiff, without objection, filed a supplemental petition setting up a new cause of action, the error, if any, is waived where defendant files answer and goes to trial upon the issues thus joined.</p> <p>3. PLEADING — Waiver of Objections — Filing Answer. Misjoinder of causes of action as ground of demurrer filed after answer is waived by filing answer.</p> <p>4. APPEAL AND ERROR — Briefs—Sufficiency. Where a party complains of instructions given or refused and fails to set out in his brief such as he excepts to, as required by rule 25 of this court (20 Okla. xii, 95 Pac. viii), the same may not be considered.</p> <p>(Syllabus by the Court.)</p>

<p>VENDOR AND PURCHASER — Executory Contracts — Title—Growing Crops. Equity treats things agreed to he done as actually performed, and, when real estate is agreed to he conveyed by a valid executory contract of sale, without reservation, the equitable title passes at once to the vendee, and with it title to all crops growing on the land, hut not as to crops severed from the soil.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Application by Hugh A. Burrell for writ of habeas corpus to John L. Wisener, Sheriff. Relator discharged, and defendant brings error.</p>

<p> Error from District Court, Creek County; W. L. Bwrnum, Judge. </p> <p>Proceedings by Edith’ Durant, by Monday Durant, her next friend, against Bates B. Bennett, guardian of Edith Durant. From an order of removal defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — Public Improvements — Contracts —Validity. A contract let by the mayor and city council for a municipal filtration plant, pursuant to Snyder’s Stats, of Okla. sec. 702, but in excess of the estimate of cost submitted with the plans and specifications of the city engineer, is void.</p> <p>2. SAME — Taxpayer—Right to Equitable Relief. A resident taxpayer of such municipality may invoke the interposition of a court of equity to prevent the illegal disposition of the moneys of the municipality in payment of work done pursuant to said contract.</p> <p>3. SAME — Adequate Remedy at Law. The remedy afforded by Snyder’s Stats, of Okla. secs. 704,. 7413, and 7414, is not an adequate remedy at law in the sense that it will oust a court of equity of its inherent jurisdiction to restrain an unlawful expenditure of the moneys of a municipality at the suit of a resident taxpayer, but is cumulative thereto.</p> <p>4. ACTION — Nature and Form — “Cumulative Remedy.”. A “cumu- ■ lative remedy” is a remedy created by statute'in addition to one which still remains in force; and, when a statute gives a new remedy, and contains no negative, express or implied, of the old remedy, the new one provided is cumulative, and the party may elect between the two.</p> <p>(Syllabus by the Court.)</p>

<p>1. GAS — Necessity of Municipal Grant — Use of Streets — Franchises —Statutes. By section 12, art. 2, c. 26, pp. 435, 436, Sess. Laws 1909, the defendant in error, a domestic gas pipe line corporation, has not, without first being granted a franchise for such purpose, the right to lay, use, and maintain gas pipes and mains, with all necessary attachments, connections, and appurtenances, upon and below the surface of the streets, alleys, sidewalks, etc., of the city of Pawhuska, and to maintain a system of gas pipes and gas works in said city, to sell and supply gas to it and its inhabitants.</p> <p>2. CONSTITUTIONAL LAW — Initiative and' Referendum Provisions —Statutes. Sections 17, 18, and 19, art. 1, c. 44, Sess. Laws 1907-OS, vitalized, the initiative and referendum provisions of article 18 of the Constitution of this state.</p> <p>3. MUNICIPAL CORPORATIONS — Initiative and Referendum Provisions — Substantial Compliance — Petition—Filing. Section 5b, art. 18, of the Constitution of this state, requires initiative petitions as to municipal legislation, demanding that a franchise be granted, to be filed with the chief executive officer or mayor of such municipal corporation.</p> <p>(a) Section 17, art. 1, c. 44, 'Sess. Laws 1907-08, does not require such petition to be filed with the city clerk.</p> <p>(b) Although having been filed with the city clerk, yet having been presented to the mayor, and he having acted thereon, according to the mandates of section 5a of article 18 of the Constitution, and called an election thereon, there being no requirement that he indorse such petition as filed, the same was a substantial compliance with said provision.</p> <p>(c) The petition signed by the required number of electors, demanding that the franchise be granted, containing a proposed ordinance setting forth the terms of the franchise in detail, designated as. initiative petition No. 1, and the title of same being “An ordinance granting the Pawhuska Oil and Gas Co. of Paw-huska, Okla., a corporation organized under and by virtue of the laws of the territory, its successors and assigns, a franchise, for 'twenty-five years to use the streets, etc., to sell and supply said city and inhabitants and concerns thereof, natural gas, and defining the rights and privileges thereunder,” is a substantial compliance with the provisions of section 5, art. 18, of the Constitution.</p> <p>4. CONSTITUTIONAL LAW — Self-Executing Provisions — Effect as to Previous Laws — Duration of Franchise. Section 5a, art. 18, of the Constitution, providing that no franchise shall be granted for a longer period than 25 years, is self-executing. '</p> <p>(a) Section 589, St. Okla. Ter. 1893 (section 693, Comp. Laws 1909), providing that such privileges or franchises could not be granted by cities to extend beyond the period of 21 years, being repugnant to the provisions of section 5a, art. IS, was not continued in force in the state after its admission by virtue of section 2 of the Schedule.</p> <p>5. MANDAMUS — Officers—Ministerial Duty — Grant of Franchise. Section 5b, art. 18, of the Constitution, providing that after a franchise has been voted to be granted by a majority of the qualified electors voting thereon, the same shall be granted by the proper authorities at the next regular meeting of the legislative body of the municipality, imposes upon the mayor and councilmen a mandatory ministerial duty.</p> <p>(a) The writ of mandamus is available to require the performance of such duty.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Corporation Commission. </p>

Error from, District Court, Cleveland County; B. McMillan, Judge. Action by N. M. Nelson, guardian, and others, against J. M. Glenn and Bell Glenn. Judgment for defendants, and plaintiffs bring error.

<p> Error from Sequoyah County Court. </p> <p>Aqftion by .Thoma© and John Hardwick against the St. Louis, Iron Mountain & Southern Eailway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Wagoner County; John H. King, Judge. </p> <p>Action by Andrew C. Davis against the Creek Land & Improvement Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Tulsa County; Benjamin C. Conner, Special Judge. </p> <p>Action by William Lynch against the Canadian Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie Countyj A. II. Huston, Judge. </p> <p>Action by W. C. Brissey against Maurice Furstenburg. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Craig County; T. L. Brown, Judge.</p> <p>Action by the International Bank & Trust Company against Lucy Tolbert and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Review—Motion for New Trial — Necessity. Errors occurring during trial cannot be considered by the Supreme Court, unless a motion for a new trial, founded upon and including such errors, has been made by the complaining party and acted upon by the trial court, and its ruling excepted to, and afterwards assigned for error in the Supreme Court.</p> <p>(Syllabus by the Court.)</p>

<p>Error from the District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by tbe Yan Ardsdale-Osborne Brokerage Company against Win. Cooner. Judgment for defendant and plaintiff brings error.</p>

<p>1. LIMITATION OF ACTIONS — Recovery of Personalty. Under section 3550, Compiled Laws of Oklahoma 1909 (Sess. Laws 1895, p, 183; section 4216, Wilson’s Rev. & Ann. Stat. 1903), actions for the specific recovery of personal property are required to be brought within two years.</p> <p>2. SAME — Stolen Personalty. The statute of limitations as to personal property, though stolen, when held in good faith for value, openly and notoriously, runs in favor of such adverse possession so as to bar a recovery by the true owner after the expiration of two years. After the statute of limitations begins to run, such subsequent purchaser may tack on such prior adverse holding- in order to complete the bar.</p> <p>3. APPEAL AND ERROR — Reservation of Grounds of Review— General Exception to Instructions. It is a settled rule that a general exception to a charge of the court containing several dist’net instructions, some of which are unobjectionable, will not be available as error.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—Conflicting Evidence. Where a case is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence.</p> <p>(a) Where the evidence is partly oral and conflicting and the finding of the court is general, such finding is a finding of every special thing necessary to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p> <p>(Syllabus by the Court.) ,</p>

<p>RAILROADS — Stopping Trains at Flag Station — Order of Corporation •Commission. A petition was filed for the stopping of certain trains on flag at Craig 'Switch, which was granted by the Commission. An appeal was prosecuted therefrom. Held, that the same should not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUSTICES OF THE PEACE — Pleading. A defendant in a justice’s court may, without filing pleadings, plead1 any defense he may have to plaintiff’s claim; and on appeal to the county court, when no answer or pleadings was filed in thei justices - court, the same rule applies.</p> <p>2. TELEGRAPHS AND TELEPHONES — Contract for Transmission — Claims for Breach — Time—Validity of Limitation. Under the laws existing in the Indian Territory, a stipulation between a telegraph company and the sender of a message that any claim arising out of a breach of said contract for damages or penalty must be presented within 60 days from the date of the filing of said message may be valid.</p> <p>3. JUSTICES OF THE PEACE — Appeal—Record—Correction. On timely application to the county court, a party to the action should be permitted to have the record from the justice’s court . corrected by such justice of the peace so as to¡ show that an answer was filed therein by the defendant, if, in fact, it was.</p> <p>(Syllabus by the Court.)</p>

<p>Application by Tom Herndon for a writ of prohibition against B. P. Hammond, County Judge.</p>

<p> Error from District Court, Jackson Coiuniy; ~W. T. McConnell, Judge. </p> <p>Action by J. W. May against Eugene Roberts. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Trial—Review of Conflicting Evidence — Findings. Where a case is tried by the court without the intervention of a jury upon controverted questions of fact, and there is evidence reasonably tending to support its findings, such findings will not be disturbed on the weight of the evidence.</p> <p>(a) Where the testimony is partly oral and conflicting, and the finding of the court is general, such finding is a finding of every special thing necessary to be found to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p> <p>(Syllabus by the Court.)</p>

<p>Emr from District Court, Oklahoma County; Jos. G. Lowe, Judge.</p> <p>Action by Frank Harrah against William Hess. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Stephens County; W. IT. Admire, Judge. </p> <p>Action by Mollie Ward against C. C. Bichards. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Seminole County; John Caruthers, Judge. </p> <p>Action by James L. Adair against B. Porter McFarlin and others. Judgment for defendants, and plaintiff brings error.</p>

Error from Ohoctaw County Court; W. T. Glenn, Judge. Action by A. M. Vanderberg against the Gulf Pipe Line Company. Judgment for plaintiff, and defendant brings error. This action was originally instituted on the 20th day of April, 1908, by defendant in error in a justice court of Choctaw county to recover damages alleged to have been sustained by him by reason of certain negligent acts of plaintiff in error, a foreign corporation.

Error from District Court, Muskogee County; John IT. King, Judge. Action between Frank C. Garner and Pete Scott, administrator of tbe estate of Sarilda Scott, and another. From the judgment, Garner brings error.

<p>PROHIBITION — Abstract Question's — Dismissal. Where pending a proceeding by a petition for a writ of prohibition to prohibit and restrain a district judge, an incorporated city, and its officers from proceeding in the prosecution and determination of a condemnation proceeding, whereby certain lands of petitioner are sought to be condemned for the purpose of waterworks, petitioner sells and conveys the lands involved to the city, upon such fact being brought to the knowledge of this court the cause will be dismissed, because it presents for consideration only abstract or1 hypothetical questions, from a determination of which no practical relief can follow.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Pontotoc County Court; -Joel Terrell, Judge. </p> <p>Action, by P. E. and T. D. Anderson against the Oklahoma Portland Cement Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from Oklahoma County Courtj Sam■ Hooker, Judge. </p> <p>Action between G. W. Turley and Hayes & Shirk. Prom the judgment, Turley brings error.</p>

<p>Error from District Court, Okmulgee Countg; W. L. Barnum, Judge.</p> <p>Action by S. J. Haynes against E. W. Gill and others. Judgment for plaintiff, and defendants bring error.</p>

JUrror from Superior Court, Muskogee C'ounty; Bdga/r A. De Meules, Special Judge. Motion of E. D. Jefferson for writ of mandamus against ■Robert Toomer, Clerk of the Superior Court, Muskogee County. Judgment for defendant, and plaintiff brings error.

<p>TELEGRAPHS AND TELEPHONES — Negligent Delay in Delivering Message — Damages for Mental Suffering. In the absence of statute, damages are not recoverable for mental distress alone, caused by negligent delay in delivering a telegram. .</p> <p>(Syllabus by the Court.)</p>

Error from Pittsburg County Court; B. W. Higgins, Judge. Action by the Ellet-Kendall Shoe Company against Mac H. Boss, in which Butler C. Brewin intervened. Judgment for inter-vener, and plaintiff brings error.

<p>"1. TRIAL — Directing Verdict — When Warranted. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to he taken must be eliminated entirely from consideration and totally disregarded, leaving for consideration that evidence only which is favorable to the party against whom the motion is leveled.</p> <p>'2. MASTER AND SERVANT — Injuries to Servant — Furnishing Safe Appliances — Case. Plaintiff, an employee of defendant, was charged with the duty of unloading cotton seed from a box car on a side-track into a seed conveyor parallel therewith, said conveyor consisting of a long metal-lined trough about 16 inches wide in which lengthwise ran a metal screw about 12 inches in diameter, and which had, the season before, been covered by an immovable grating of metal rods three inches apart, upon which said seed had been theretofore unloaded, but which said grating at the time of the injury lay in six foot sections which could be raised on hinges and hooked against the building to which the conveyor was attached. To accomplish the work he was required to raise and hook back a section of the conveyor opposite the open door of the car, lay a platform of loose boards from the outer edge of the open conveyor to the car door, enter the ear, and fork the seed from it into the open section of the conveyor. After laying' the platform, in order to get into the car, plaintiff got on top of said conveyor a.t the end of the building, walked to where said section was raised, and, in attempting to step from there to the platform on his way into the car, lost his balance, stepped into the moving screw of the conveyor, and received the injuries complained of. Held, that there was no evidence that defendant was negligent in that it failed in the performance of its duty to provide a reasonably safe appliance for the performance of the work required by failing to keep said conveyor covered as during the previous season.</p> <p>(Syllabus by the Court.)</p> <p>Dunn, J., dissents.</p>

<p> Error from Atolca County Court; J, Ii. Linebaugh, Judge. </p> <p>Action by the Cochran Grocery Company against J. L. Green & Company, W. E. Harris intervening. From a judgment for in-tervenor, plaintiff brings error.</p>

<p>APPEAL AND ERROR — Matters Left Open by Mandate — New Proceeding in Error. The district court may hear and determine any matters left open by thd mandate of this court, and judgment rendered and entered thereon can be reviewed in this court by a new proceeding in error only.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kiowa County; James B. Tolbert, Judge. </p> <p>Action by the Higgins-Boberts Grain Company against W. B. Schmucker. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Cowl, Oklahoma County; J os. G. Lowe, Judge. </p> <p>Action by T. B. Wilson against G. W, Wheeler. Judgment for defendant, and plaintiff brings error.</p>

<p>.TAXATION — Lien for Taxes — Stock of Goods Sold — Construction of Statutes. Where taxes assessed upon a certain: stock of goods are in arrears for the years 1905, 1906, and 1907, and the same are thereafter in 1907 sold to one certa-'n pel-son and the owner fails to retain sufficient to pay the taxes thereon, a lien thereon , for the taxes of the year 190-7 only is preserved by chap. 75, art. 1, sec. 8, of Wilson’s Stats, of Oklahoma.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Comanche Countyj J. T. Johnson, Judge. </p> <p>Action by Milan • G. Foster against J. J. Miller and Lula Southern. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Washita County; James R- Tolbert, Judge. </p> <p>Action bv Katie E. Griffin against Hiram Gernert and another. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kingfisher County ; A. H. Huston, ■ Judge. </p> <p>Action by B. S. Mean against Nora L. Callison. Demurrer to petition sustained, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Assignment of Error — Scope of Review. Where plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to ‘review errors alleged to have occurred during the progress of the trial in the court below.</p> <p>2. LANDLORD AND TENANT — Relation of Lessor and Sublessee. As between the lessor and sublessee of the orginal lessee there is neither privity of estate nor privity of contract; the lessor cannot sue the sublessee upon the lessee’s covenant to pay rent.</p> <p>('Syllabus by the Court.)</p>

Corporation Commission. From an order of the 'Corporation Commission in favor of A. A. Zalondek and others and against the St. Louis and San Francisco Railroad Company, the railroad company appeals.

<p> Error from Superior Court, Oklahoma County; A. N. Mwnden, Judge. </p> <p>Injunction by the State upon relation of Fred S. Caldwell, against tbe Gulf, Colorado & Santa Fe Railway Company and others. From the judgment, defendants bring error.</p>

<p>1. PROCESS — Service by Publication — Sufficiency of Affidavit. Where it is stated in an affidavit to obtain service by publication that the defendants are non-residents and reside out of the territory of Oklahoma, and that plaintiff is unable with due diligence to make service of summons upon said defendants, though otherwise sufficient, it is defective on direct attack, in that it does not state that service cannot be had upon said defendants within the state. (Following Ballew v. Young et al., 24 Olda. 182, 103 Pac. 627.)</p> <p>2. APPEAL AND ERROR — Time for Perfecting Appeal — Review of Action on Motions. A motion to quash the service by publication being overruled by the trial court, the defendant having appeared specially for the purpose of making such motion, and saving its exceptions to such- action of the court, thereafter answered and the cause was tried and final judgment rendered. More than one year after the ruling on the motion to quash, but within a year from the time the motion for a new trial was overruled, the proceeding in error was commenced in this court. Held: That the action of the trial court in overruling the motion to quash was reViewable in such proceeding in error.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissents.</p>

<p> Error from District Court, Muskogee County; G. A. Brown, Judge. </p> <p>Action between Frank T. Swift and W. J. Coulter. From the judgment, Swift brings error.</p>

<p>1. NEGLIGENCE — Question for Jury. Same as paragraph 2 of the syllabus in Harris et al. v. M., K. & T. Ry. Co., 24 Okla. 341.</p> <p>2. APPEAL AND ERROR — Change of Theory on Appeal. A jury having found against the plaintiff in error on the theory relied on by it in the court below, it will not be permitted to change front on appeal in this court and claim the right of defense on some other theory.</p> <p>(Syllabus by the Court.)</p>

<p>NEGLIGENCE — Question for Jury — Appeal and Error — Change of Theory. Same as that in St. Louis & San Francisco R. Co. v. Key (ante), decided at this term of court.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Pittsburg County; Presley B. Cole, Judge.</p> <p>Action by E. N. Allen and others against the board of commissioners of Pittsburg county. From a judgment of dismissal, plaintiffs bring error.</p>

<p> Error from Bryan County Court; Charles A. Phillips, Judge. </p> <p>Action by W. F. Bennett against A. Goodman. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Seminole County; A. T. West, Judge. </p> <p>Action between Orlando McConnell and T. H. Rogers Lumber Company. From the judgment, the latter brings error.</p>

Action by the State, on the relation of R. J. Edwards, against the City of Oklahoma City and Elmer C. Trueblood, -as City Treasurer. Judgment for plaintiff, and defendants bring error.

Error from District Court, Miiskogm County; Q. A. Brown, Special Judge. ' Action by J. W. Davis, special administrator of J. L. Davis, deceased, against the Pioneer Telephone and Telegraph Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Muskogee County; John II. King, Judge.</p> <p>Action by H. M. Sappington against W. A. Graham and O. R. Graham. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>Action by Renben J. Heald against J. C. Starr, Guy Patten, W. E. Ross, and Rilev Oil Company. Judgment for plaintiff, and defendants bring error.</p>

<p>CORPORATION COMMISSION — Appeals from Orders — Jurisdiction of Supreme Court. Section 20, article 9, of the Constitution, which provides that, “From any action of the1 commission prescribing rates, charges, or classifications of traffic, or affecting the train schedule of any transportation company, or requiring additional facilities, conveniences, or public service of any transportation or transmission company * * * an appeal * * * may be taken by the corporation whose rates, charges, or classification of traffic, schedule, facilities, conveniences, or service are affected,” confers appellate jurisdiction upon the Supreme1 Court in all actions before the Corporation Commission wherein it is sought to regulate the management and operation of transpoi-.ation companies within the state in the' interest of persons who use such companies for the transportation of themselves or their property, and does not apply to actions for the correction of abuses disconnected from such services.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from Corporation Commission. </p> <p>Proceeding by the State, Lynn Lane Township, and others against the St. Louis 'and San Francisco Railroad Company. From an order in favor of petitioners, the railroad company appeals.</p>

<p> Appeal from Corporation Commission. </p>

<p> Error from Bryan County Court; Charles A. Phillips, Judge. </p> <p>Action by A. F. Snther against the Farmers National Bank, of Durant, Olda. Judgment for plaintiff, and defendant brings error.</p>

<p>RECORDS — Indian Territory Registration Law — Effect of Statehood. Instruments executed in- the Indian Territory prior to statehood, which were valid under 'the laws in force in that jurisdiction without registration, are valid after statehood, notwithstanding non-compliance with the registration laws extended over -and put in force in 'the state by the Enabling Act and Schedule to the Constitution.</p> <p>(Syllabus by the! Court.)</p>

<p> Error from Jefferson County Court; G. M. Bond, Judge. </p> <p>Action between John Marple and the Farmers’ and Merchants’ National Bank, of Nocona, Texas. From the judgment, Marple brings error.</p>

Error from District Court, McCurtain County; D. A. Richardson, Judge. Action'by the Incorporated Town of Valliant against Thomas Mills, J. B. Harris, and W. J. Miller, township trustees composing the township' board for municipal township No. 5 of Mc-Curtain county, Oklahoma, and ex officio highway commissioners for the said municipal township No. 5 and for road district No. 2 of said township, and E. L. Nelson, treasurer, of McCurtain county, Oklahoma.

<p>1. CONTINUANCE — Surprise—Diligence. Surprise at the trial is not sufficient ground for a continuance unless the surprise is such as cannot be obviated by t'he exercise of ordinary care and due diligence on the part of the party asking for -the continuance.</p> <p>2. APPEAL AND ERROR — Instructions—Sufficiency. If an instruction complained of, when considered in connection with the other instructions given, fairly covers the legal phases necessary to present to the jury, the cause will not be reversed although, standing alone, it may not be technically accurate.</p> <p>3. DAMAGES — Action by Parent for Injuries to Child — Measure of Damages. In an action by a parent for the loss of the services of his minor child, the damage to the parent is limited to such as will compensate him for the loss of the child’s services to the! time of his majority, the reasonable amounts necessar'ly expended in the treatment and care of the child, and the value of the parent’s services while nursing the child; and the jury may consider that with age, growth, and expedience the value of the child’s services would increase, although they cannot consider that the child might, if not injured, engage in any particular calling.</p> <p>4. RAILROADS — Public Crossings — Care Required of Railroad and Traveler. 'The obligations, rights, and duties of the railroads and travelers at public crossings are mutual and reciprocal, and no greater degree of care is required of one than of the other. Both parties are charged with a mutual degree of care in keeping a lookout on their part, and the degree of diligence to be exercised on both sides is such as a prudent man would exercise under the circumstances of the case.</p> <p>5. TRIAL — Instructions—Burden of Proof. An instruction to the effect that the burden of proof is upon the plaintiff to establish each and every particular fact necessary to make out his cause of action by a preponderance of the evidence and the burden is upon the defendant to establish the affirmative allegations or defense set up in its answer by a preponderance of the evidence, was a correct general statement of the law governing th.e burden of proof and therefore unobjectionable.</p> <p>(Syllabus by the Court.)</p>

<p>1. COURTS — Jurisdiction—District Courts — Suspension of Officers. Section 2630 of Wilson’s Rev. & Ann. Statutes, conferring upon the district courts original jurisdiction of all actions arising under section 2628 of said statutes, and all that portion of section 2631 conferring upon the district courts in all actions arising under section 2628 authority to suspend from office district, county, city, and township officers, pending the determination of such action, was not extended in force upon the admission of the state, because repugnant to section 12, article 7, of the Constitution.</p> <p>2. EVIDENCE — Judicial Notice — Terms of District Judges. This court will take judicial notice that the term of a district judge has, pending an application for a writ of prohibition, expired and a successor has been elected and qualified under the provisions of the statute and Constitution.</p> <p>3. PROHIBITION — Action Against Judge — Expiration of Term of Office — Abatement. An action for a writ of prohibition against a district judge to prohibit and restrain further proceeding in a prosecution for a misdemeanor in a district court and to suspend relator from office contrary to law, is not abated by the fact that the term of the .district judge against whom the writ is asked expires before the writ is issued. 1</p> <p>(Syllabus by the Court.)</p>

<p> Error from Oklahoma County Court; 8am Hooker, Judge. </p> <p>Action by A. V. Snell, H. L. Paddock, and John Sherman, Jr., partners, against John R. Hughes. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from Osage Gownty Court; O. T. Bennett, Judge. </p> <p>Action by Smith & Steele against R. Lee Martin. Judgment for defendant, and plaintiffs bring error.</p>

<p>Error from District Court, Cr'aig County; T. L. Brown, Judge.</p> <p>Action by Laura P. Campbell against John E. Campbell. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pottawatomie Countyj W. N'. Maben, Judge-. </p> <p>Action by the Smith Premier Typewriter Company against W. A. Grace, Sheriff of Pottawatomie 'County. Judgment for plaintiff for part of the relief asked, and defendant brings error.</p>

<p>Brror from District Court, Kingfisher County; A. H. Huston, Judge.</p> <p>Action by E. A. Davis against J. A. Smith and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Eiror from District Court, Bryan County; D. A. Richardson, Judge. </p> <p>Action by J. J. Terry against E. M. Creed. Judgment for defendant, and plaintiff brings error.</p>

Error from District Gourl, Greeh County; W. L. Ban’num, Judge. Action by W. B. Stone and others against the City of Sa-pulpa and M. Summers and F. R. Stone, doing business under the firm name of Summers & Stone. Judgment for defendants, and plaintiffs bring error.