Volume 3 — Oklahoma Reports

<p>njunction — Restraining Order — Not Lie, When. On September i6, 1893, A settled upon a tract o£ land, under the third section of the act of congress of May 14, 1880. On October 7, 1893, B made a homestead entry at the local land office of said '.tract of land. On March 15, 1894, A, in the absence of the district judge, obtained of the probate judge of K county, a restraining order, restraining B from settling upon and improving the tract of land in dispute between said A and B. On March 20, 1894, B filed a motion in the district court to dissolve the temporary restraining order issued by the probate judge, and said motion was allowed and the restraining order dissolved.. Held, That it was not error to dissolve such restraining order for the reason that B, by virtue of his homestead entry, had a right to the joint use and occupancy of the land until such time as the land department should determine which of the contestants is, under the homestead law, entitled to the land in dispute.</p>

<p>1. Provisional Government — A'o Legal Authority to Contract Debts. The provisional government for the regulation and management of the affairs of the cities and towns of the Territory of Oklahoma which were established piior to the act of congress approved May 2, 1890, were but voluntary associations of the people living in them; were -without legal authority, and had no power to contract debts which should constitute legal obligations upon the municipalities afterwards ■ formed under authority of law.</p> <p>2. Incorporation — Retention of Purchases Made Prior to — City Liable. Purchases of lumber were made prior to May 2, 1890, from the Jones-Richardson Lumber company, by persons representing the provisional government of Oklahoma City. The lumber was applied in constructing sidewalks upon the streets, and for other public improvements for the city. The unpaid account for the lumber was assigned for value to the defendant in error. The plaintiff in error became a legally incorporated city on the 7th day of April, 1891. Thereafter, upon the-day of September, 1891, the defendant in error demanded payment for, or return of, the lumber, from the plaintiff in error, both of which were refused. The plaintiff in error thereby appropriated the lumber, and will be bound to pay the value thereof at the time of the demand and refusal to pay for or return the same, together with interest upon the amount, at 7 per cent, from the-day of September, 1891. It is an ordinary case of conversion.</p>

<p>Note — The opinion of the court in this case, reversing the decision of the district court, was delivered by Justice Bierer and filed February 16, 1895. Motion for rehearing was filed, and presented at the June term, 1895, and the same denied. To the latter ruling of the court Justice McAtee dissented, delivering his opinion July 27, 1895.</p>

<p>1. Satutes — Construction of. The intention of the legislature governs the construction of a statute, and if that requires a change in the punctuation, or even in the wording, of the statute, such change must be made.</p> <p>2. Road and Bridge Tax — County Commissioners No General Au-.thorily to Levy. The board of county commissioners, under the laws of 1893, had no authority to levy any tax for road and bridge purposes, unless they were first authorized to do so by a majority vote of the people, upon the question being submitted at'a general or special election.</p> <p>3. Misjoinder of Parties — Not Ground for Demurrer. A misjoinder of parties, both plaintiff and defendant, is no ground for a demurrer to the petition under our code.</p> <p>4. Injunction Against Illegal Tax — foinder of Parlies. Several persons, whose property is affected in the same manner by the same illegal tax, may, under our statute, join in an action to restrain the collection of such tax.</p> <p>5. Illegal Tax — Injunction a Projcr Remedy. Under our code injunction is a proper and legal remedy to restrain the collection of illegal taxes.</p> <p>(5. General Demurrer — Not Proper If Any Cause, of Action Is Slated. Where a demurrer is joined in by several persons, on the ground that the petition does not state a cause of action, there is no error in overruling the demurrer as to all of the defendants, if a cause of action is stated against any of them, although no cause of action whatever may be stated against a part of them.</p> <p>7. When Parties in Interest Must Sue. One or more tax payers, whose property is attempted to be subjected to an illegal tax, can not maintain an action enjoining the collection of the tax as against the property of other tax payers similarly situated, under the provisions of the code, which is that “ when the question is one of common or general interest in many persons, or when the parties are very numerous and it may be impracticable to bring them all before the court, one or more may sue or defend for the benefit of all.”</p>

<p>i. Instructions to Jury — Special Findings. Under the code of civil procedure, of the Statutes of Oklahoma, of 1890, §4574, which provides that “the court, in all cases, when requested by either party, shall instruct them, if they render a general verdict, to find specially upon material questions of fact, to be plainly stated in writing," it is not error to refuse an instruction, which, upon the submission of special questions for the jury, “instructs them that it is your duty to answer each of said questions fairly as you shall find the truth to be under the evidence, without regard to your general verdict,” The provision of the statute is that the jury shall make special findings only upon condition that they return a general verdict, and it would be error to instruct them to make such findings without regard to such general verdict.</p> <p>2. Special Interrogatories. If the record discloses that special interrogatories have been submitted to the jury, and that they have been returned into court by the jury in connection with their general verdict, at the request of the defendant, and that “the court submitted said certain special questions of fact for the jury to answer and return," such statements made in the record will be sufficient to show that special interrogatories were in fact submitted and answered by the jury, as provided by the statute, notwithstanding that no express and written instruction from the court to the jury to that effect appears in the record.</p> <p>3. Same — Evasive Anszuers — Effect. If the jury returns evasive or equivocal answers to some of the special interrogatories proposed, and a motion is made to the court to remand the jury and require them to return definite answers to such interrogatories, and the motion is refused, and the party to the cause making such motion is not damaged by such evasive or equivocal answers, such refusal of the court to remand and direct the jury is not reversible error.</p> <p>4. Same — Equivocal Answers Construed. If the jury, in making a return to special interrogatories in connection with the general verdict, returns evasive, equivocal or uncertain answers, not stating the result of the evidence, either in the affirmative or in the negative upon the point, it is simply a finding that adequate proof has not been produced, at the trial, of the existence of the fact upon which the question has been proposed, and that it is not made out by proof, and is equivalent to a finding against the party holding the affirmative upon such fact.</p> <p>5. Railroad Cars —Trespasser on — Eights of. A person who gets upon the freight train of a railroad company, without the knowledge of the conductor, and under direction of a brakeman of the train, places himself in a box car, making a payment for his passage to the brakeman, does not, by making such payment and accepting such direction from the brakeman, contract with the railroad company for his passage. He is not a passenger, but a trespasser. He is not entitled, at the hands of the railroad company, to that high degree of care to which a passenger is entitled, but only to the right to be exempt from wanton and wilful injury at the hands of the company.</p> <p>6. Passenger — When Guilty of Contributory Negligence. The caboose of a freight train is the proper place to which persons must go, and take their places, who intend to become passengers upon the train. A box car is a place of increased danger, and if one seeks to be a passenger, and voluntarily places himself in such a car, he will be guilty of such contributory negligence as will preclude recovery against the company for an injury received while occupying such a position.</p> <p>7. Same. If one, who undertakes to be a passenger upon a freight train, voluntarily places himself in a box car, leaves his place back in the car and goes to the open door of the car while the train is in motion, and is, by a sudden shock of the train, thrown from the door and injured, he is guilty of such contributory negligence as will preclude recovery from the railroad company.</p> <p>8. Jury — Special Findings — Duty of Cotcrt. In a case in which the plaintiff takes passage upon a freight train of defendant which has a caboose attached, and goes into the box car upon the train which is not provided by the company for the accommodation of passengers, and the plaintiff was not allowed to take passage upon such train under the rules of the company, and his presence on the freight train was unknown to the conductor, engineer or fireman, but was known to a brakeman to whom the plaintiff gave a dollar for his ride, which was less than the regular fare, and the brakeman had no authority to collect the dollar from the plaintiff, and the plaintiff knew that the train on which he took passage was not a passenger train and that the car in which he took passage was not provided by the company for carrying passengers, and the plaintiff was thrown from the car by the stopping of the train, while he was leaning from the door of the car, and would not have been injured if he had remained back in the car until the train stopped, and these facts were all found by the jury upon special interrogatories proposed by the defendant in connection with the general verdict for the plaintiff for damages in his behalf, and the defendant thereupon filed his motion for judgment on the answers of the jury to the special questions, it was error in the court to overrule such motion, and the ruling of the court should have been for judgment in favor of the defendant upon such special findings of fact.</p>

<p> Err or from the District Court of Logan County. </p>

<p>i. Trial — Presumption. Under the Indiana code of civil procedure, in force at the time of the trial of this causé, when a jury is waived, and trial by court, and the court required to make findings of fact and conclusions of law, a motion “that the court set aside the findings and grant a new trial for the reason that each of said findings are contrary to law,” raises the question whether the facts, as found, are supported by the evidence, and the evidence not having been brought up with the record, the motion must be overruled. The examination of the evidence required by the motion is impossible. The presumption is that the trial court found the facts truly.</p> <p>2 Chattel Mortgage — Rights of Parties. Chattel mortgages were executed in Kansas upon property located, and by persons residing, there, who afterward removed to this territory, bringing the property with them. The law is, that the rights of the parties to such chattel mortgage contracts are to be determined by the law as it exists in the state or country where they were made, and are to be performed.</p> <p>3 Same — Construction of Statutes Governing. The Kansas s'tatute here being construed, which provides that every mortgage of chattels shall be void against creditors of the person making the same, • unless, within thirty days next preceding the expiration of one year from the time it was filed, an affidavit, exhibiting the interest of the mortgagee, be made as required by the statute, to preserve the rights of the mortgagee as against execution creditors, and after the lapse of one year from the time of filing, the fact that such affidavit has been made must affirmatively appear in behalf of the mortgagee, otherwise the conclusion must be that no such affidavit was made.</p> <p>4. Same — Void as Against Creditor, When. The statute is peremptory that the mortgage so filed shall be void as against the creditors of the person making the same, unless the renewal affidavit be filed as provided by it, and in case of a failure to so file it, the mortgage will be rendered void as to creditors, notwithstanding the re-filing and renewal may have been rendered impossible by the removal of the mortgagors from the state.</p> <p>5. Same — Must Be Piled. The statutes of Nebraska, in force in this territory at the time, declared chattel mortgages to be '‘absolutely void as against a creditor of the mortgagor, unless the mortgage, or a true copy thereof, shall be filed in the office of the county clerk of the county where the mortgagor resides.” Under this statute, in the ■ absence of the filing of the original mortgage, a copy of it, properly authenticated asa " true copy,” must be placed on file as here provided.</p> <p>6. Same — Authentication. Such authentication under the Statutes of 1890, in force at the time, must have been "by an attestation made by the keeper of the same that the same was a true and complete copy of the original in his custody, and the seal of the office of said keeper thereto annexed, or by the certificate of the clerk and the seal of the district or probate court of the proper county where the keeper resides, that such attestation is made by the proper officer.” And a certificate made by the register of deeds of Oklahoma county, where an instrument was filed, which "purported to be a copy of such chattel mortgage,” that a copy of such copy was “a true copy of the original mortgage on file in this office,” is not such authentication, and is plainly erroneous and misleading.</p> <p>7. Same — Registration. In order to have the effect of notice to creditors, a chattel mortgage,, or copy of it, must be such as is by the statute declared to be sufficient and effective for that purpose, and the registry must have been made in compliance with the law, otherwise the registry will be treated as a mere nullity.</p>

<p>1. Homestead — What Constitutes — Exempt From Execution. DeF., one of the plaintiffs in error, owned a lot with a building thereon, in the business part of the city of Guthrie, and rented the basement and first floor for the sum of thirteen hundred dollars, and a part of the second floor for offices for the additional sum of two hundred and fifty dollars. He resided v ith his family on a portion of the second .floor, valued at the sum of two hundred and fifty pollars per annum. The family had no other home. Held, That the building was the dwelling of DeF., and the home of his family, within the meaning of § 2, chapter 34, Oklahoma Statutes, 1893, and was the homestead of plaintiff in error, and, as such, exempt from execution.</p> <p>2. Same — Statute —Construction Under this section of the statute, providing for the exemption of land as a homestead in a city, which has been improved by a building used by the family as a home, the homestead is not lost or forfeited by the circumstances that the style of the building resembles, in its architecture, ordinary business structures, and that it is on one of the .principal business streets, flush with the sidewalk; that the larger portiou of the house is rented for the purpose of business and revenue, and the smaller part used for a home, and that the family resides on the second floor, and not upon the first floor of the building. If the building is in fact the only home of the family, it is exempt from execution, although its principal use maybe for business purposes.</p> <p>3. Witness— Interrogation by Court Not Error, When. The interrogation of witnesses by the judge, during the progress of the case, is not error, and he may, in the exercise of his discretion, aid in eliciting material matter, suggested by the evidence.</p>

<p> Errors From the District Court of Canadian County. </p>

<p>1. Liquor License. Liquor licenses, as well as taxes and other public charges, are payable in money, unless provision is made by statute for their liquidation in some other manner, or by some other means.</p> <p>2. Statutes — Construction of. A statute must be construed in accordance with the legislative intent, and to ascertain this intent, the various provisions of the legislative enactments must be construed together.</p> <p>3. Same — Literal Inter-relation of. A literal interpretation will not be given to the language used in a part of a section of a statute when such construction would conflict with another provision of the same section, and with other provisions of the statute.</p> <p>4. Same — Literal Interpretation Nor will a literal interpretation be given to language in a statute when such interpretation would operate unjustly or lead to absurd results.</p> <p>5. Same — Construction of — Payment of Liqtior License. The section of the statute relating to the duties of the county treasurer, which provides that whenever he receives any money, warrants or orders on account of licenses, fines or any other account, except taxes charged on the tax roll, shall make out duplicate receipts therefor, one of which shall be deposited with the county clerk, and which provides that the treasurer shall then enter the same in his cash book as cash received for taxes, does not, when construed in connection with other provisions of the statute making liquor licenses payable in dollars, and providing for the registration and payment of county warrants in the order in which they are presented to the county treasurer, and providing for the use of such warrants in payment of taxes and the redeeming of such warrants,, either by payment or by their receipt for taxes, require the county treasurer to receive county warrants in piyment of liquor licenses when there are many thousand dollars in outstanding warrants of the county which have precedence in order of payment over those tendered, and when those tendered cannot be received as cash.</p>

<p>i. Street Crossing — Contributory Negligence. The question as to whether or not a party is guilty of contributory negligence in passing at night over a street that is being graded, and where there are no barriers or danger signals, and where there is a conflict in the evidence as to the condition of the street, and as to whether it was lighted or not, and where the party injured claims she did not know the condition of the street, but supposed it was in a safe condition, is a question of fact for the jury, under the circumstances oE the case, and not of law for the court.</p> <p>2. Right of City to Grade Street — Duly As lo Reasonable Care. While the right of the city to grade or otherwise improve a street is paramount to the right of the public to use the same during the time of making such repairs, or doing such grading, if such grading or improvement makes the street dangerous for travel in the night time, it is the duty of the city to place warning signals for passers-by, or to place barriers preventing travel during the time of improvement.</p> <p>3. Streets — Amount of the Same lo be Ke$t Safe for Travel. The question as to whether or not the whole width of a street of a city must be kept in a safe condition for travel, is a question of fact for the jury, and not of law for the court to determine.</p>

<p> Error from the District Court of Logan Coionty. </p>

<p> Error from ■ the District Court of Logan County. </p>

Error from the District Court of Canadian Coioniy. Action in replevin brought by S. H. Glaze, in the district court of Canadian county, against Thomas R. Jackson, E. L. Gay, and H. H. Cook, to recover a stock of merchandise seized by Cook as the property of one Charles Bartley. Judgment in the lower court in favor of Glaze for the recovery of the possession of the property, finding the value thereof at $2,200.00 and damages for detention at $300.00.

<p> Error from the. District Court of Canadian County. </p> <p>This is an action brought by the plaintiff below to set aside a conveyance of certain real estate made by the defendant, N. B. Wass, through the intervention of a trustee, to his wife, Lydia A. Wass, and to subject the same to the payment of plaintiff’s judgment against N. B. Wass. • The opinion states the facts.</p>

<p> Error from the District Court of Pottawatomie County. </p> <p>The opinion states the facts.</p>

Error From the District Court of Grant County. Action in replevin brought by the Vaughn Lumber company against the Missouri Mining and Lumber company, to recover possession of a lot of shingles shipped by plaintiff to a party in Grant county, and seized by defendant upon an execution. Plaintiff brings up this case.

Error from the District Court of Oklahoma. County. Action commenced imthe district court of Oklahoma county by Jesse A. Mitchell against 0. T. Bassett and J. 0. Wellwood, to declare them trustees for Mitchell and compel a conveyance from Bassett and Well-wood of real property. Judgment in the lower court for Mitchell. Bassett brings the case to this court.

Error from the District Court of Payne County. The plaintiff in error brought his action in replevin in the district court of Payne county to recover a span of mules, a wagon and a set of harness, of which he alleged he was the owner, and that the same were unlawfully detained from his possession by the defendant.

<p>1. Divorce — legislative Power to Confer Jurisdiction on Probate Courts. The power to regulate matters of divorce is a legislative one, and the conferring of jurisdiction upon probate courts to grant divorces is not a wrongful exercise of the right granted by the Organic Act to the legislature of this territory to pass enactments upon rightful subjects of legislation; and the act of the legislature of this territory, of 1890, giving probate courts jurisdiction to entertain actions of divorce, needed no ratification by congress, and the act of congress subsequently passed approving the territorial legislative enactments granting jurisdiction to probate courts, did not take away the right of the legislature to still further make regulations respecting divorce proceedings, nor the right to repeal its own enactments granting to probate courts jurisdiction in divorce cases. The former conclusion of the court in this case on the question of the general jurisdiction of probate courts to grant divorces approved, but the reason for the holding changed.</p> <p>2. Same. The jurisdiction of probate courts to grant divorce'under §4966, of the Statutes of 1890, must be exercised in the mode and manner prescribed in the section granting the jurisdiction. It is, therefore, held, that probate courts, under the Statutes of 1890, only had jurisdiction to grant divorces where the petition and affidavit showed that the plaintiff had been a resident of the territory for two years, and of the county for six months next preceding the date of filing of the petition.</p>

<p>Fraudulent Conveyance — Notice. Where a transfer of property is made for the purpose, or with the intent, on the part of the person making such transfer, to hinder and delay creditors, it is fraudulent and void; and the conveyance is fraudulent and void, also, as to the transferee, if, at the time, or before the making, of the transfer, the transferee had notice of such facts and circumstances as would arouse the suspicion of an ordinarily prudent man and cause him to make inquiry as to the purpose for which such transfer is being made, which would disclose the fraudulent intent of the maker; and it is not necessary, in order to defeat such a transfer to show that the transferee had actual notice of, or was a participant in. the fraud of the maker of the transfer. The former holding of this court on this question in the case of Chandler v. Colcord, i Okla 260, is overruled.</p>

<p>Mandamus — Insufficieyit Anstuer— Demurrer Sustained, No JZrror. In a mandamus proceeding, where the answer to the alternative writ is so defective that it does not show any good and sufficient reason for a failure to do the thing commanded in the writ, no error is committed in sustaining a demurrer thereto.</p>

Error from the District Court of Canadian County. Action commenced in Canadian county district court by Isaac Jalonick Jr. against Robert M. Hamill, to recover possession of property held by Hamill under a lease from Jalonick. Judgment below for Jalonick Hamill brings up the case. The facts are stated in the opinion.

<p> Error from the District Court of Canadian County. </p>

<p>1. Lot Contests — Rule Requiring Deposit Regal. The rule of the land department requiring a deposit of $32 from contestants for lots before a townste board is a legal requirement, and one which must be complied -with. The poverty of a claimant is a condition which does not constitute a defense against the rule, or against the action of the townsite board, and will not constitute a sufficient excuse to entit'e a claimant to the intervention of a court of equity.</p> <p>2. Default — Demurrer Will Lie. In a case in which the complainant seeks an injunction to restrain an adverse claimant, upon the ground that the complainant had failed by reason of poverty to make the deposit for expenses of contest required by the rules of the secretary of the interior and land department, the complaint does not state facts sufficient to constitute a cause of action, and a demurrer to such complaint should be sustained.</p>

Error from the District Court of Garfield County. Calvin F. Mason procured an injunctional order against Fullerton C. Cromwell from the probate judge enjoining Cromwell from the use and occupancy of a tract of land covered by his homestead entry, except a small portion thereof outside of his fences. The district court modified the order and permitted Cromwell to use and occupy a portion of the land inside the enclosure of Mason. Mason appeals the case to this court.

<p> Petition for a Rehearing. </p>

Error from the District Court, of Logan Comity. Joseph L. Mulhall brought this action in the district court of Logan county to recover upon his petition in two counts, one for the sum of 8130, and one for the sum of 8593.50, a total sum of 8723.50, with interest. On the trial by the court, without a jury, judgment was given the plaintiff in the sum of 8593.50, with interest on that sum, as prayed for, from which defendant appeals.

Error from the District Court of Kingfisher County. Action commenced October 25, 1892, in the district court of Kingfisher county, by J. L. Trout and M. J. Kane, against R. Eappe, to recover possession of certain real estate, held under a lease. Judgment in the court below for the recovery of the possession, and §230 as rent for the property. Pappe brings the case here on appeal. The opinion states the facts.

<p>1. Motion to Make More Definite and Certain. Where a motion to make a petition more definite and certain is filed, and such motion fails in any manner to point out wherein the petitiqn is indefinite and uncertain, it is not error to overrule such motion</p> <p>2. Exhibits — When a Part of Petition. Where the instrument, which is the basis of the action, is attached by copy to the petition and made a part thereof, such copy should be considered as a part of the petition, when construing the allegations thereof</p>

Error from the District Court of Canadian County. The opinion states the facts. Judgment for defendants below. The plaintiffs bring the case here.

Error from the District Court of Canadian County. At the May term, 1894, of the district court of Canadian county, William Wamsley was tried, found guilty and sentenced for the crime of burglary. From such judgment he appeals.

Error from the District Court of Cleveland County. W. H. Seawell filed a claim before the board of county commissioners of Cleveland county for rent of a building, discount on warrants, and services as janitor, which was disallowed. He appealed to the district court and obtained a judgment against the county for the sum of $351.58 and costs. The county brings the case to this court. The opinion states the facts.

Error from the District Court of Oklahoma County. Action for damages by John T. Welsh against the city of Oklahoma City for injuries received in falling into an excavation in one of the streets of the city, temporarily made, to receive gas mains. Judgment in the court below for Welsh in the sum of $1,350. The city brings up the case. The opinion states the facts.

<p> Error from the District Court of Canadian County. </p>

<p>Record — Motion to Dismiss Appeal From, Probate to District Court, and Motion for New Trial No Part of, Without Case-Made or Bill of Exceptions. Under the code of 1893, a motion to dismiss an appeal from the probate court to the district court, and a motion for a new trial, and the evidence taken on the trial in the district court, and the exceptions made to the various rulings of the district court upon these matters, are not a part of the record without a case-made or bill of exceptions, and a transcript of the record of the district court presents no questions, in this court, for a review of the actions of the district court in its rulings upon such motions.</p>

<p>1. Pleadings — Amendments — Variance. Where the plaintiff sued the defendant for money loaned, and the defendant answered by a ' general denial, and also by special plea that the money had been invested in cattle in which plaintiff and defendant were partners, and in which they had both invested certain ajmounts of money, and that the cattle still remained undisposed of, and where the plaintiff replied by general denial, and a trial was had by the court, and neither the evidence nor the rulings upon any of the questions occur-ing on the trial are saved, but the record is brought to this court on a transcript of the pleadings and the special findings and conclusions of the court, showing that the court found that the $1,500 was invested in a partnership interest in the cattle, but afterwards the defendant agreed to take the plaintiff's interest in the cattle and to pay him back the said sum of $1 500, and the court rendered judgment for the amount sued for in favor of pi rintiff, held, that the ca-e is one in which the pleadings could havebten amended to correspond to the proof, and that, no objection appearing to have been made until after judgment, this coui twill consider the case as if p optr amendments had been made, and there was not a fatal variance.</p> <p>2. Trial — Presumption of Regularity. Where the evidence and the record of the proceedings occurring on the trial of the cause are no* brought to this court, but only the pleadings, finding and conclusions of the court and the motions made af er judgment, the presumption is that all of the proceedings of the court are regular, and that the pleadings were treated by the parties as amended where the case is one where an amendment may be allowed.</p> <p>3. Contract — Sufficiency of Consideration. A partnership interest in certain cattle in which a party had invested $1,500, and in which it appeared at the time of the contract that the business would be unprofitable and losses might occur, and where there is no claim of fraud or deceit, is sufficient consideration for a promise to pay $1,500 for such partnership interest in the cattle.</p>

Original Proceeding in Habeas Corpus. Petition for writ of habeas corpus, Louis LeRoy, petitioner. Convicted in the district court of Logan county, and sentenced to three years in the penitentiary. The facts are stated in the opinion.

Error from the District Court of Pawnee County. STATEMENT OP THE CASE. On the 16tli day qf November, 1894, the county commissioners and county clerk of Pawnee county appeared before the district court of said county, pursuant to published notice as required by law, and filed a petition to 'issue funding bonds of said county.

<p>i . Public Land — Rights of Settlers — Jurisdiction of District Court, District courts of this territory have jurisdiction to enquire into the right of possession as between settlers upon public land. Aod where it appears that the rights of adverse claimants have been adjudicated by the land department, and the homestead entry of one of the parties has been cancelled, held, that the district court may, by injunction, give exclusive possession to the person who was successful in the contest proceedings.</p> <p>2. Possession- — Rejnedy. The forcible entry and detainer act of this territory does not provide an adequate and speedy remedy to a person who is entitled to the exclusive and immediate possession of land covered by his homestead entry.</p> <p>3. Mandatory Injunction. It is the duty of the courts, when called upon, to issue an injunction, mandatory and prohibitory, to restrain a person whose homestead entry has, by the land department, been cancelled, (i) to compel such party to yield up and surrender possession of land, and (2) to prohibit him from interfering with the possession of the person who has the homestead filing for such and.</p> <p>4. Occupying Claimants— Act Hot Aj>j>ly, Wheji. The occupying claimants act, passed by congress June 1, 1874, has no application to land until the title to the same passes from the government of the United States.</p> <p>5. Title — Homestead Filing. A homestead filing does not convey "color of title” within the meaning of the act of congress of June 1, 1874.</p> <p>6 Homestead Entry — Cancelled for Fraud. A person whose homestead entry has been cancelled for fraud in its inception cannot avail himself of the benefits of the occupying claimants act.</p>

<p>i. Probate Courts — Jurisdiction in Divorce Proceedings — Sufficiency of Com/plciint to Give Jurisdiction. The same complaint is before the court in this case which was before the court for consideration in the case of Irzuin v Irzvin, (2 Okla. Rep. 180; 37 Pac. 548) and on rehearing (this volume, p. 186; 41 Pac, 369) and the » conclusions there reached are followed in this case, and it is held: (1) That on January 14, 1883, probate courts had jurisdiction to hear and determine actions for divorce. (2) That the complaint for a divorce in a probate court must show that the plaintiff had been a resident of the territory for two years and of the county six months next preceding the date of the filing of the complaint, but if the complaint stated that the plaintiff had been a resident of the territory six months and was then a resident of the county, the plaintiff might amend her complaint and the defect in the complant would not entirely deprive the probate court of jurisdiction of the cause. (3) That a complaint for divorce which charged that the defendant had been guilty of cruel and inhuman treatment toward the plaintiff, ' and alleged facts showing that the defendant had slapped the plaintiff and had violently cursed and abused her, and that he had failed and refused to provide for plaintiff and her children, was sufficient to give the probate court jurisdiction to hear her cause for divorce upon the statutory ground of extreme cruelty.</p> <p>2 Divorce Proceedings — Restraining Order, Cowjlainl. It is not necessary that the complaint in divorce proceedings under the Code of 1890 should allege the facts entitling plaintiff to a restraining order, or pray for a restraining order against the defendant to prevent the disposition of his property in fraud of the plaintiff’s rights, but those facts may be set up in the affidavit asking this auxiliary relief without being stated in the complaint</p> <p>3. Restraining Order — Lost; Chattel Mortgage. Where, in a divorce proceeding a restraining order has been properly granted, commanding the defendant not to dispose of his property pending the action for divorce, such order is operative upon all persons having notice of the granting of such order, although the order and the return of service may be lost or removed from the files of the court.</p> <p>4. Divorce Proceedings — Restraining Order; Notice of Affilication Therefor. A restraining order which has been granted without notice to the defendant, in a divorce proceeding, is not void, and may not be attacked collaterally, upon the ground that the emergency therefor was not sufficiently shown.</p> <p>'5. Divorce — Alimony — Decree of Alimony in Specific Proferir Erroneous blit tVot Void. While the .decree for alimony under the Statute of 1890 should have been made for a sum of money in gross, and not for specific property, yet such a decree was not void as against the collateral attack of one claiming a chattel mortgage upon the property which was the subject of the decree, and which chattel mortgage had been taken prior to the decree of divorce and in violation of the restraining order against the defendant’s making a disposition of his property.</p>

<p> Error from the Probate Oourt of Lincoln County. </p>

<p>Action — Nezu Parties — Abearance—Jurisdiction. Octobei* io the the judge of the district court issued an order making new parties defendants in an action, and in such order required them to appear and answer by October 13. One of said defendants made no appearance and a judgment was rendered against her by default. Held: The court by its order obtained no jurisdiction over the person ox-property of such defendant.</p>

<p>1. Case-Made — Mecords of Court; Contradiction. The records o£ the court incorporated into a case-made cannot be contradicted by other statements contained in the case-made.</p> <p>2. Same — If Not Served in Time. Extension of Time by the Judge Void. Where the extensions of time granted by the district court or judge thereof, have once expired, the district court or the judge thereof has no power then to extend the time for serving a case-made, and a case-made, served, signed and settled after the expiration of time, is void.</p> <p>3. Same — Being Held Void, Cannot Be Used as a Transcript. Where a case-made has been held void because it was not served in time, and where the clerk of a district court has not certified that the copies of the pleadings, findings and conclusions of the court as contained in the case-made, are true and correct copies of the same as shown by the records of the district court, such record cannot be considered as a transcript of the record of the court below upon the certificate of the judge of the district court, attested by the clerk, that the pleadings, orders and process are true and correct copies of the originals.</p>

Error from the District Court of Pottawatomie County. STATEMENT OP THE CASE.

<p> Error from- the District Court of Logan County. </p>

<p>1. Injunction — Temporary Order- -When tYol Disturbed by Su-premc Court. When a judge o£ a district court issues a temporary injunctional order, without notice to the defendant in the case, after the answer of defendant was on file, held, that the supreme court will not consider an assignment of error predicated upon such alleged erroneous action, until after the matter has been presented for correction to the judge making the order.</p> <p>2. Same — Discretion of the Court. In an action pending in the district court, wherein the pleadings disclose that an injunctional order will prevent irreparable injury to one of the parties to the litigation, the granting of such order is entirely within the discretion of the court.</p>

<p>x. Contributory Negligence. If one ships cars of cattle on a railroad stock train upon a contract which provides that he shall be transported upon the caboose attached to such train, and that he shall care for said cattle during transportation and upon their delivery at their destination, and he takes passage upon the caboose of such train, goes to sleep upon it, and is awakened by an employe of the railroad company, who is himself a passenger upon the train and has nothing to do with its running or management, who tells him that the train has reached its destination, and that his cars of stock are being "set out at the stock chute,” and he is not told or notified to leave the train by any one of the company’s servants having charge thereof, and the train has, in fact, reached the point of destination between g and xo o’clock at night, the night being very dark, but has stopped at a distance from the passenger station and upon a bridge twenty-five or thirty feet in height, and he goes out of the caboose and with no lights or depot in sight and without endeavoring to ascertain the situation of the train, steps off the platform, and in doing so falls twenty-five or thirty feet to the ground, thereby suffering injuries, he cannot recover damages from the company. Such a case does not disclose negligence on the part of the railroad company. The cause of the injuries to the plaintiff was his own negligence.</p> <p>2. General Verdict- — Special Findings of Fact Control. When a general verdict is rendered in behalf of the plaintiff and findings of fact are made by the jury upon special interrogatories proposed to it, and the defendant files his motion for judgment in his favor and against the plaintiff upon the findings of fact, contained in the answers to the special interrogatories proposed to it, the general verdict will be set aside when the special findings of fact are inconsistent with the general verdict and exclude such a conclusion as would authorize a recovery for the plaintiff. When the special findings of fact are inconsistent with the general verdict, the former controls the latter and the court may give judgment accordingly.</p> <p>3. Same. In order to justify the jury in finding a general verdict for the plaintiff in this case, it was necessary that they should have found that the plaintiff's injuries were caused wholly by the negligence of the defendant in error, and that he should not himself have contributed to them by any negligence on his own part.</p>

Error from the Probate Court of 0 County. Action by William Cameron &• Co. v. Ivan (7. Conkling, as receiver of the Merchants Bank at Enicl, for the recovery of money in the hands of said Conkling- as receiver, filed in probate court of O county, April 27, 1894. Judgment for the plaintiff. Defendant brings error.

Error from the District Court of Kingfisher County. STATEMENT OF THE CASE.

<p>1. Chattel Mortgage — Possession. Where at the time of the execution of a chattel mortgage, it is understood and agreed between the parties that the mortgagor shall be allowed to remain n possession of the mortgaged property and sell and dispose of the same in the ordinary course of trade and apply the proceeds to his own use, the mortgage is absolutely void as to creditors of the mortgagor.</p> <p>2. Same. It does not matter whether such agreement is oral or in writing, contained within the mortgage or without, if such an agreement was had, the mortgage is fraudulent and void as to creditors.</p>

Error from the District Court of Logan County. Action for damages by S. D. Décker against the Atchison, Topeka & Santa Pe Railroad company. Case tried in the district court of Logan county, taken from the jury and jury instructed to return a verdict for the defendant. Motion for a new trial filed and overruled. Exception taken and case brought here 6n error. The facts are stated in the opinion.

Error from the District Court of Logan County. Action brought in the probate court of Logan county on the 2d day of January, 1893, by defendant in error against plaintiff in error to recover the sum of $300.15. On the 16th day of February, 1893, the case was tried by a jury and a verdict rendered in favor of the plaintiff for the sum of $267.89. Defendant brings error. The facts are stated in the opinion.

Error from the Probate Court of K County. Action brought in the Probate court of K county on the 27th day of January, 1894, by S. Kaufman & Co. against J. A. Newkirk, to recover the sum of 1249.06. The facts are stated in the opinion.

On the 22d day of December, 1894, there was returned int.o the district court of Canadian county, by the grand jury thereof, a certain indictment against John Delana and Charles W. Beacom, in words and figures as follows, to-wit: “INDICTMENT No. 299. “ Territory of Oklahoma v. John Delana and Charles W. Beacom. “Of the November term of the district court of the Second judicial district of the Territory of Oklahoma, within and for Canadian county, in said Territory, in the…

Error from the District Court of Logan County. The appellant, Frank Brink, was convicted of murder in the district court of Logan county and sentenced to imprisonment for life, and brings the case here on,appeal. The facts are stated in the opinion.

On the 1st clay of April, 1893, the United States grand jury within and for Logan county, returned an indictment against John Dossett, charging him with the crime of murder. On the 18th day of August, 1893, his trial commenced before Chief Justice E. B. Green, then presiding judge of the First judicial district, and was finished on the 28th day of August, 1893, the court sitting with the powers of a United States district and circuit court.

Louis LeRoy was convicted of grand larceny and sentenced to three- years in the penitentiary and appeals to this court. The facts are stated in the opinion.

Prosecution for forgei-y. Indictment rendered December 22, 1894. Demurrer filed and sustained on March 6, 1895. Territory excepts and brings case here on appeal. The facts are stated in the opinion.

<p> Error from the District Court of Logan County. </p>

<p>i. Civil Action — Withdrawal of Answer — Demurrer—Waiver of Error. Where in a civil cause the issues are made up by a petition, answer and reply, and on the cause being called for trial the defendants make application for continuance on account of the absence of witnesses, and the court overruling such application, they, by leave of court, withdraw their answer and demur to the petition, and upon the overruling of the demurrer, elect to stand upon their demurrer and refuse to plead further, and judgment is rendered on the petition; such action is a waiver of any error that may have been committed in ruling upon the application for continuance.</p> <p>2. Rescission- Edition in Equity- -Sufficiency Of. In a petition in equity to procure the rescission of a contract for exchange of real estate on account of false and fraudulent representations, if the petition contains the other material allegations it is sufficient to offer to return all that was received by the exchange.</p>

<p> Error from the District Court of Payne County. </p>

<p>1. Criminal Law — Persons Jointly Indicted Have Right to Separate Trial. Persons jointly indicted for a felony have a right on request to separate trial, but such right may be waived, either expressly, or by the conduct of the parties. Such request must be made before the trial begins, and for this purpose the trial commences from the time when the work of empaneling the jury begins. It is not error to overrule a request for separate trial made after the parties announced ready for trial and the work of empaneling the jury was commenced.</p> <p>2. Verdict — Statutes Construed. Section 12, art. 12, chap. 68, Criminal Procedure, relating to manner of receiving the verdict, contemplates an oral verdict. And where the verdict is in writing and signed by the foreman, and delivered and read in open court, the requirements of the Statute are obviated, and it is not error to fail to poll the jury, unless requested by one of the parties.</p> <p>3. Errors — When Waived Not Considered. When alleged errors are expressly waived they will not be considered.</p>

<p>1. Real Estate — Innocent Purchaser Protected. An innocent pur chaser o£ real estate tor value is protected against outstanding equities and secret trusts.</p> <p>2. Same — Mortgagee Purchaser to Extent of Claim. One who loans money to the holder of the legal title of real estate and takes a mortgage upon such real estate to secure the same is to the extent of his claim a purchaser of the land and is entitled to the same protection from all secret equities of which he had no notice, at the time of taking the mortgage, as any other bona fide purchaser.</p>

Original Proceeding in Mandamus. The plaintiff was employed as a stenographer in the service, and under authority of, the last legislature of the territory. He presented bis account and voucher for services to the territorial auditor for allowance and payment from the treasury of the territory.

<p>1. Practice in Justice Court — Bill of Particulars Sufficient. A bill of particulars in a justice’s court for work and labor which states the title o£ the court and the names o£ the parties aDd alleges that the defendant is indebted to the plaintiff in a sum certain for work and labor performed at the instance and request of defendant and that the amount is due and unpaid states a good cause of action. The law does not require that strictness in pleading in justices’ courts that prevails in the district courts.</p> <p>2. Verdict — Will Be Permitted to Stand. When. It is not the province of an appellate court to take from the jury the right to weigh conflicting evidence and determine controverted questions of fact, and when there is any evidence reasonably tending to support the verdict it will be permitted to stand.</p> <p>3. New Trial — Not Error to Overrule Motion for, When. It is not error to overrule a motion for a new trial based upon the ground of newly discovered evidence when such newly discovered evidence is merely cumulative.</p> <p>4. Same — What Motion Should Shorn. A motion for a new trial on the ground of newly discovered evidence should show that the applicant used due dilligence to procure and present the evidence on the trial and the facts constituting the dilligence must be shown so that the court may determine whether the dilligence used was sufficient.</p> <p>5 Pleading — Appeal — Questions Not Considered, While it is a loose method of pleading, and one not to be commended, to sue parties by the initials of their Christian names only, yet if no ad vantage is taken of it in the court below the appellate court will not consider such objection on appeal.</p>

<p> Error from the District Court of OJclaJioma County. </p>

<p>i. Petition in Equity — Demurrer—Error to Overule, When. It is error to overrule a demurrer to a petition for want of sufficient facts to constitute a cause of action, which petition seeks to have the holder of the legal title to town lots declared a trustee for, anda conveyance decreed to. an adverse claimant by reason of settlement and occupancy, and which petition declares the fact that the plaintiff has failed, by reason of poverty, to make the deposit for expense of contest required by the rules of the secretary of the interior.</p> <p>2. Townsite Trustees— Rules — Inability to Comply With Not Sufficient Excuse. The financial condition of the claimant is something over which the trustees or adverse party could exercise no control, and his inability to comply with the rule requiring a reasonable deposit to meet the expense of a hearing is not a sufficient excuse to entitle him to the intervention of a court of equity.</p>

<p> Error from the District Court of Logan County. </p>

<p> Original Proceeding in Mandamus. </p>

<p>i Contract — Rescission—Resale—Breach of Implied Warranty. Baum purchased from Coyle & Smith oats to be fed to his livery horses, paid the purchase price and received the oats. This constituted an executed contract, and the ownership of the oats passed. After using a portion of the oats Baum discovered that they were unfit for feed by reason tf having castor beans intermingled with them, and notified the vendors of such fact. By agreement he returned the unused portion of the oats and was paid for such unused portion the same rate per bushel as the original purchase price. Held, That this did not constitute a rescission of the contract, but was a new agreement by which a resale was made, and the question as to whether the new agreement amounted to a compromise, or accord and satisfaction, of the damages occasioned by breach of the implied warranty of quality, was a question of fact to be determined from the agreement itself and the intention of the parties at the time.</p> <p>2. Same — Implied Warranty — Action Will lie, When. When a dealer in feed sells oats to a liveryman for the purpose of being fed to his livery horses, and such purpose is known to the seller at the time of sale and the vendee does not examine or inspect the oats, there is an implied warranty that the oats are reasonably fit for the purpose for which they are intended And if such oats contain castor beans, a poisonous substance when fed to horses, this constitutes a breach of the warranty for which an action will lie</p> <p>3. Actions — 'L'zuo Causes Improperly Blended — Harmless Error-. When a cause of action in tort and one ex contractu are improperly blended in the same petition, and no objection is made to the same until after plaintiff's proof is introduced, and it appears from the special findings of fact by the jury, the instructions of the court and the whole record, that the case was determined upon the theory of a breach of contract, and the elements of tort did not enter into the final results, error of the trial court in overruling a motion by defendant to require the plaintiff to elect on which theory he will stand, is harmless, and a cause will not be reversed for such ruling</p> <p>4. Damages — Measure Of. The measure of damages in an action for breach of warranty of quality of oats sold for feed for horses, where the oats contained substances which kil'ed a portion of the horses, made some sick, and permanently injured others, is the value of the horses killed, the difference in value of the injured horses before and after the injury, the loss of the use of the horses while sick, the expense of medical treatment and medicine, and such other damages as are the natural and direct consequences of such breach of warranty.</p> <p>5. Witness — Value of Horses — Market Valtie Assumed. Where a witness testifies that he is acquainted with the values of livery horses generally, and that he knew the horses in question, and testified as to their value, it will be assumed that the market value is meant, unless, from the testimony of the witness, it appears that he fixes his values on some other basis.</p> <p>6. V-eterinary Surgeon — Opinion of as to Damages. When a veterinary surgeon has treated certain horses for disease caused by eating castor beans and gives the effect of the poison on the stomach and digestion of the horses, and is acquainted with the general effects of such poison on horses, he may give his opinion as to the permanency of the injury, and where he is acquainted with the general values of such horses may testify as to the damages occasioned by such injuries.</p>

<p>Clerks of Territorial Courts — ¿'ees Clerks of the district courts of the territory are required by the laws of the United States to account to the secretary of the treasury of the United States for all fees earned by him as such clerk, territorial as well as United States, and any act of the legislative assembly attempting to regulate the same is in violation of the laws of the United States and therefore void.</p>

Original Proceeding in Mandamus. Action in mandamus on the relation of A. H. Huston, county attorney, filed in the supreme court April 15, 1895. Alternative writ awarded same date, returnable to the supreme court at the June term. Case submitted on briefs and oral argument. The facts are stated in the opinion.

<p> Error from the District Court of Canadian County. </p>

<p> Error from the District Court of Canadian County. </p>