Volume 31 — Oklahoma Reports

<p> Error from Grady County Court; N. M. Williams, Judge. </p> <p>Action by the Missouri-Lincoln Trust Company against A. E. Long. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Washington County; T. L. Brown, Judge. </p> <p>Bill by Oliver Bagby against Freeman E. Hertzel, Howard Weber and others. From the decree, Hertzel and Theodore N. Barnsdall bring error.</p>

Error from District Courts Stephens County; ■Prank M. Bailey, Judge. Action by J. S. Mullen and others against S. E. Saunders and others. Judgment for plaintiffs, and defendants bring error.

<p>TRIAL — Exclusion of Witnesses. The principal officer of a railway company who becomes a witness in a cause may be put under ' the rule and excluded from the courtroom a's other witnesses.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Marshall County; D. A. Richardson, Judge. </p> <p>Action by D. A. Spear against the Fall RiveiJ Oil & Gas Company, the American Well & Prospecting Company intervening. Judgment for plaintiff, and intervener brings error.</p>

<p>APPEAL AND ERROR — Review — Sufficiency of Evidence. Where the ease turns upon a question of fact, and thé issue joined is fairly presented to a jury, a judgment entered upon their verdict will not be reversed, when there was evidence' adduced reasonably tending to support it.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Noble County; W. M. Boivles, Judge. </p> <p>Action by Hehry Kopenbrink against W. P. Wallace. Judgment for plaintiff, and defendant brings error.</p>

<p>1. COURTS — County Courts — Jurisdiction—Statutes—Effect on Pending Actions. Section 2, art. 1, of an act of the Legislature of 1907-OS, entitled “An act to define the jurisdiction and duties of the county court,” etc. (Sess. Laws 1907-08, p. 284; section 1978, Comp. Laws 1909), has no application to an action instituted and pending in a county court before the passage and approval of said act.</p> <p>2. TRIAL — Verdict—Sufficiency—Signing by Jurors. Where, in an action in a county court, the parties agree to a trial by a jury of five jurors, instead of six, and a unanimous verdict is returned by said jurors, the verdict is not void, because not signed by all members of the jury concurring.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Noble County; W. M. B otoles, Judge. </p> <p>Action by H. B. Bullen against the Arkansas Valley & Western Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>MUNICIPAL CORPORATIONS — Railroad in Street — Damages. Syllabus same as in Ark./Val. & W. Ry. Co. v. Bullen, ante, 119 Pae. 414, decided at this term.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Bryan County; D. A. Richardson,, Judge. </p> <p>Action by J. K. Cobb & Co. and others against C. A. Hancock. Judgment for defendant, and plaintiffs bring error.</p>

<p> Appeal from the State Corporation Commission: </p> <p>Proceedings by the State and J. F. McFadden against the Atchison, Topeka & Santa Fe Railway Company. From an order of the Corporation Commission adjudging the railway guilty of contempt, it appeals.</p>

<p>INJUNCTION — Injury Already Committed. Where, in an action for an injunction to prevent a city council from entering into a contract, it is made to appear that prior to the issuance and service of the writ and without notice thereof the contract had been duly executed, the judgment of the trial court denying' the injunction will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, ■Jackson County; J. T. Johnson, Judge. </p> <p>Action by Gertrude Nelson against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by E. Renzleman against J. S. Mullen. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Statutory Provisions — Retroactive Operation. As a general rule, the right of appeal is governed by the law applicable thereto in force when the final judgment is rendered, and, unless it is evident from the terms of the statute which gives, modifies, or takes away the right of appeal that it was intended to have a retrospective effect, it has no application to causes in which final judgment had been rendered prior to the time the act in question was passed.</p> <p>2. SAME — Time for Taking Proceedings — Statutory Provisions — Re- . troactive Operation. The amendment to section 574, c. 66, St. Okla. 1893, provided for in chapter 18, Sess. Laws Okla. 1910-11, p. 35, reducing the time allowed for appeal from a judgment from one year to six months, does not operate, retrospectively, nor apply to judgments entered before its passage, but is limited in its operation to judgments thereafter entered. Therefore proceedings in error taken within one year from the entry of a judgment of a date prior to the passage of such amendment, even though more than six months has expired, will not be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Tulsa County; John H. Pitchford, Judge. </p> <p>Action by C. B. Kelman against James L. Kennedy. Judgment for defendant, and plaintiff brings error.</p>

<p>1. BAIL — Criminal Prosecutions — Constitutional and Statutory Provisions. Wilson’s St. Okla. 5774, is not repugnant to section 8 of the Bill of Bights.</p> <p>2. SÁME — Criminal Prosecutions — Deposit—Recovery by Depositor. Where, pursuant to Wilson’s St. Okla., sec. 5774, permitting a deposit in lieu of bail, one other than defendant deposits the money, held, when construed with Wilson’s St. Okla., sees. 5403, 5413, which make no provision that the money be returned to one other than defendant, that the same fairly require that said money so deposited should, for the purpose of the deposit, be conclusively presumed the money of the defendant and treated accordingly.</p> <p>3. SAME. Where, pursuant to Wilson’s St. Okla., sec. 5774, a deposit of money is made with the clerk of the district court in lieu of hail by one other than defendant, and where, upon failure of defendant to appear at the time and place required hy his undertaking, default is had and a forfeiture duly entered upon the journal of the court, on petition of the person making such deposit for an order requiring the clerk to turn the money over to him, held, that the court did not err in refusing to grant the prayer of the petition.</p> <p>4. SAME — Criminal Prosecutions — Relief From Forfeiture. Where the court’s order for the release ,of defendant was not signed by the judge when the same was delivered to the sheriff, in conformity to Wilson’s St. Okla., sec. 5773, the failure so to do does not render unlawful the discharge thereon of the prisoner so as to save a forfeiture of the money deposited in lieu of bail pursuant to Wilson’s St. Okla., see. 5774.</p> <p>5. BAIL — Criminal Prosecutions — Forfeiture — Entry on Minutes. Where money is deposited in lieu of bail and the defendant fails to appear, it is only necessary, in order to declare a forfeiture, that the court should direct the fact of the deposit, and of the defendant’s neglect to appear, to be entered of record. The forfeiture then follows as a matter of course.</p> <p>(Syllabus by the Court.)</p>

<p>Bill by the Town of Grove against C. N, Haskell, Governor, and others for an injunction.</p>

<p>Original.action by the Town of Checotah and others against the Town of Eufaula and others for writ of injunction. To the report of a referee appointed to take evidence, with his findings of fact and conclusions of law, the plaintiffs except.</p>

<p>1. CONTRACTS — Construction — Practical Construction by Parties. Where the meaning of the terms used in a written contract is not clear, the subsequent acts of the parties showing the construction they have put upon the agreement themselves are to be looked to by the court.</p> <p>2. SAME — Construction—Question of Law or Fact. The determination of the meaning of a written contract-is ordinarily a question of law for the court, and not one of fact for a jury, but, where the construction depends upon extrinsic facts as to which there is a dispute, its construction is a mixed question of law and fact, and is for the jury under proper instructions from the court.</p> <p>3. EVIDENCE — Parol Evidence Affecting Writings — Admissibility. A written agreement reciting that plaintiff pays the defendant a certain sum and agrees to pay a further sum when S. and L., by his guardian or otherwise, are placed in possession of their allotments of land in Chickasaw Nation, Ind. T., and that the defendant agrees to represent S. and L., or the guardian of L., in the matter of placing them in possession of their allotments, and in securing lawful leases from the guardian and having them approved by the United States court, is so ambiguous as to authorize the admission of evidence that plaintiff insisted that by the terms of the contract defendant was to secure him a lease on the allotment of S. as well as on the allotment of L., and that defendant so understood the contract and took some steps toward carrying his understanding into effect by entering into a compromise with a certain party with a view to procuring a lease on the allotments for the plaintiff.</p> <p>(Syllabus by the Court.)</p> <p>Turner, J., dissenting.</p>

<p> .Error from District Court, Pontotoc County; Joel Terrell, Judge. </p> <p>Action by John R. Osborn against George A. Harrison and others. From a judgment in favor of. plaintiff, defendants bring •error.</p>

<p> Error from District Court, Murray County; R. McMillan, J%idge. </p> <p>Action between J. C. Chidsey and others and D. F. Ellis and others. From an order dissolving a temporary injunction, the former appeal.</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action between Agnes Scott and John A. Jacobs. From the judgment Scott brings error.</p>

<p> Error from District Court, Tillman County; J. T. Johnson, Judge. </p> <p>Action by William Mahaffey against Ben Brinsley. Judgment for plaintiff, and defendant brings error.</p>

<p>PROSECUTING ATTORNEYS — Compensation—Liability of Third Persons. A public officer cannot recover compensation from third persons for the performance of acts within the scope of his official duty, even though the acts were performed at their request, or though they may have expressly promised to pay him. This rule applies to an attorney acting as special prosecutor for the state, the regular county attorney being disqualified, by appointment by order of the district court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Rogers County; John H. Pitchford, Judge. </p> <p>Bill by Bruce Mitchell against Mark R. Bell. From an order of dismissal, plaintiff brings error;</p>

Error from District Court, Murray County; R. McMillan, Judge. Action by E. T. White and Claude Masters, administrators, against Eliza Jane Plawkins and another. Judgment for plaintiffs, and defendants bring error.

<p>NEW TRIAL — Second Trial as of Right. Same as paragraph 2 of the syllabus in Runyan v. Fisher, 28 Okla. 450, 114 Pae. 717.</p> <p>(Syllabus by the Court.)</p>

<p>NEW TRIAL — Second Trial as of Right. Same as paragraph 2 of the syllabus in Runyan v. Fisher, 28 Olda. 450, 114 Pac. 717. (Syllabus by the Court.)</p>

<p> Error from District Court, Caddo County; E. M. Bailey, Judge. </p> <p>Action by School Distinct No. 160, Caddo County, against W. W. Aleott and others. Judgm'ent for defendants, and plaintiff brings error.</p>

<p> Error from Pontotoc County Court; Joel Terrell, Judge. </p> <p>Action by the Douglass-Whaley Grocery Company against J. A. Barnard and another before a justice. Judgment for plaintiff, and defendant Barnard appealed to the county court. From an order dismissing that appeal, he brings error.</p>

<p>GARNISHMENT — Dissolution—Impeachment of Affidavit. The court has power to dissolve a garnishment process and discharge the garnishees upon motion of a defendant debtor, alleging and supported by evidence that th'e allegation in the affidavit for garnishment that the defendant debtor has not property liable to execution sufficient to satisfy plaintiff’s demand is untrue.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Woods County; R. H. Loofbourrow, Judge: </p> <p>Action by C. M. Cade against Blanche Vickers and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Carter County; S. A. Apple, Special Judge. </p> <p>Action by J. R. Moore and J. .F. Bledsoe against Wells Fargo & Co. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. BANKS AND BANKING — Checks—Revocation. Cheeks are but inland bills of exchange and subject to all the rules applicable to instruments of that character, and impose no obligation upon the drawees until accepted; and, until presented and paid, are revo- . cable by the drawer, who has the legal control of the money to his credit until -actual acceptance or payment of the cheeks.</p> <p>2. ASSIGNMENTS — Drafts—Assignment of Funds — Acceptance. A draft drawn in the ordinary form does not constitute an equitable assignment pro tanto of funds in the hands of the drawee to the credit of the drawer before sueh draft has been accepted or presented for payment.</p> <p>(Syllabus by the Court.)</p>

<p>BROKERS — Real Estate Agent — Right to Commissions., A real estate agent, authorized to sell the land of another for a certain price for a certain compensation, or send the seller a buyer, has not earned his commission until he produces a purchaser ready, willing, and financially able to purchase the land upon the terms agreed upon.</p> <p>(Syllabus by the Court.),</p>

Error from Pottawatomie County Court; Ross F. Lockridge, Judge. Complaint by the Asher State Bank to the Board of Commissioners of Pottawatomie County to reduce an assessment. From the decision the bank appealed to the county court, and from a judgment sustaining the action of the board the bank brings error.

<p> Error from District Court, Kingfisher County; A. H. Huston, Judge. </p> <p>Action by Charles A. Love against the Deming Investment Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Action between the J. I. Case Threshing Machine Company and E. G. Ditto and others. From the judgment, the J. L Case Company brings error.</p>

<p>Error from District Court, Jackson County; ' Frank Matthews, Judge.</p> <p>Action by Sanford Gay and others against H. E. Hicks and another. From order of reinstatement after dismissal, defendants bring error.</p>

<p> Error from District Court, Jackson Comity; J. T. Johnson, Judge. </p> <p>Action by S. E. Echols against T. G. Compton. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Caddo County Court; B. F. Holding, Judge. </p> <p>Action by the Page Woven Wire Fence Company against John Allen. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Review—Demurrer to Evidence. The ruling on a demurrer to the evidence is a decision occurring on the trial; and, in order to enable the Supreme Court to review such ruling, it is necessary that a motion for new trial be filed within the time prescribed by law.</p> <p>2. ATTACHMENT — Wrongful Attachment — Liability of Plaintiff. The plaintiff in an action wherein a writ of attachment is issued which is wrongfully levied upon the goods of another is equally liable with the officer who levies the same if he actively participated, directed the levy to be made, ratified, or knowingly received the benefits thereof, and is a proper party defendant in an action to recover for damages inflicted.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Caddo County Court; B. F. Holding, Judge. </p> <p>Action by W. Á. Zumwalt against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Logan County; Milton Brown, Judge pro tem. </p> <p>Action between James Murphey and S. J. Favors. From the judgment, Murphey brings error.</p>

<p>1. JUDGMENT — Default Judgment. A judgment by default upon a complaint that does not state facts sufficient to constitute a cause of action, is void, and will be reversed on appeal.</p> <p>2. QUIETING TITLE — Who May Maintain Action. A person who has no interest in the title to real estate cannot maintain an action to remove a cloud upon the title to such real estate.</p> <p>(Syllabus by the Court.)</p>

<p>■ Brror from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by Ennis Patten against James J. Ramsey. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Commencement of Proceeding — Dismissal — “Commenced.” Where the judgment sought to be reviewed was-rendered November 23, 1909, and the petition in error and ease-made, together with a praecipe for a summons in error, were filed July 10, 1910, but no summons in error issued until May 10, 1911,. held, that the proceeding in error was not “commenced” within one year from the rendition of the judgment appealed from,, within the contemplation of Wilson's St. Okla., sec. 4748.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Washita County Court; L. R. Shean, Judge. </p> <p>Action by W. W. Dowdy against C. W. Maddox. Judgment for plaintiff, and defendant brings errbr.</p>

<p>EVIDENCE — Best and Secondary Evidence — Admissibility. The' rule requiring a party offering secondary evidence of writing to show that he has in good faith exhausted in a reasonable degree all the sources of information and means of discovery which the nature of the case would naturally suggest and which are accessible to him does not apply, where the adverse party is the custodian and shown to have been last in possession of the document, and admits that the same is lost, as there is no longer any reason for the rule, and no other accounting for the loss is required.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Murray County; R. McMillan, Judge. Action between IT. B. Gooch and others and R. C. Hope and another. From the judgment, Gooch ánd others bring error.

<p>CONTRACTS — Contract to Sell Land — Consideration. In a suit to enforce a contract providing for the payment of money, where it appears from the allegations of the answer that the consideration thereof was a sale of the improvements on, and possession of, lands held by the promisee, in violation of Act Cong. July 1, 1902, c. 1362, 32 St. 641, held, that the same furnished no consideration for the contract, and that a demurrer thereto was improperly sustained.</p> <p>(Syllabus by the Court.)</p>

<p>APPEARANCE — Defects in Service of Summons — Waiver. A defendant in an action in a justice court, upon whom a defective service of process has been made, although he appears specially for the purpose of challenging the service and the court’s jurisdiction of his person, and thereafter, without waiving his special appearance, proceeds to the trial upon the merits, if he appeals from a judgment of the justice court against him to the county court, where a trial de novo upon questions both of law and fact must be had, by taking the appeal, he waives all irregularities in. the issuance and service of summons in the justice court, and he cannot thereafter be heard to question the same, or to deny the aiipellate court’s jurisdiction of his person.</p> <p>(Syllabus by the Court.)</p>

<p>1. CHATTEL MORTGAGES — Notice of Sale — Waiver. A mortgagor of chattels may waive the benefit of section 4418, Comp. Laws 1909, which provides for the posting of notices in five public places in the county where the property is to be sold at least ten days before the time therein specified for such sale, by consenting in the mortgage to a sale of the property on a different notice.</p> <p>2. CHATTEL MORTGAGES — Sale—Purchase by Mortgagee — Validity. Under a power of sale in a chattel mortgage giving the right to the mortgagee to purchase at his own sale, as well as under the provisions of section 4419, Comp. Laws 1909, a chattel mortgagee is entitled in good faith to become such purchaser, but when he does so, and the sale is attacked, the burden is upon him to show that the same was openly and fairly conducted, and that the price paid was not so grossly inadequate as to raise a presumption of bad faith.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter. County; S. H. Russell, Judge. Action by the Houston-Hudson Lumber Company and Ken-nett Hudson against George W. McLaughlin. Judgment for plaintiffs. A motion by defendant to set aside a sale on execution was denied, and defendant brings error.

<p>Application by the State, on the relation of W. H. Blackaby, for writ of mandamus against James B. Cullison,' Judge.</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action between the Northern Guaranty Loan & Trust Company and D. C. MeCurtain and others. From a judgment, the trust company bring error.

Error from District Court, Seminole County Tom D. McKeown, Judge. Application by the State, on the relation of T. S. Cobb. County Judge, for a writ of mandamus to the Board of County Commissioners of Seminole County. From a judgment awarding the writ, defendants bring error.

<p> Error from District Court, Pontotoc County; D. A. Richardson, Judge. </p> <p>Action by George H. Phillips against J. L. Jefress and others. Judgment for plaintiff, and defendant Jefress brings error.</p>

<p> Error from District Court, Seminole County; . Robert M. Rainey, Judge. </p> <p>Application by the State, on the relation of J. E. Shepard, Treasurer of School District No. 22, Seminole County, for a writ of mandamus to G. S. Crouch, Treasurer of Seminole County, Application denied, and relator brings error.</p>

<p>1. INSURANCE — Policy—Breach of Warranty. A policy of insurance written upon the written application of the insured, insured against loss from fire “a one-story frame building." The terms of both the application and the policy made the answers of insured to th'e questions in the application his warranties. To the following question, “Are you the sole and undisputed owner of the property to be insured?" he answered, “Yes." Insured Was the sole and absolute owner of the building insured and destroyed, but owned only an undivided half interest in the lot upon which the building was situated. Held, that said answer was not false, and constituted no breach of insured’s warranty.</p> <p>2. INSURANCE — Action on Policy — Failure to File Proofs of Loss. A policy provided that, in event of loss, proof of loss in writing, giving certain information designated in the policy, shall be rendered by the insured to the company within 60 days after the fire, and that no suit or action on the policy for the recovery of any claim shall be sustainable in any court until after compliance with said requirement. No proof of loss was rendered by the insured before the institution of his action on the policy or before trial. Held, that the action was prematurely brought, ■and could not be maintained.</p> <p>3. ESTOPPEL — Pleading. In order for a party to avail himself of the doctrine of estoppel as constituting a part of his cause of action or defense, he should plead the facts constituting the estoppel.</p> <p>4. TRIAL — Demurrer to Evidence — Consideration of Incompetent Evidence. In considering a demurrer to the evidence, a trial court may disregard incompetent testimony admitted over proper objections, and, on appeal to this court from a ruling sustaining a demurrer to the evidence, incompetent evidence admitted over objection will not be considered for the purpose of reversing such ruling.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Brycm County Court; Chas. A. Phillips, Judge. </p> <p>Action by J. W. Brown, against A. “S. Hamilton, Sheriff of Bryan county. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court; Carter County; S. H. Russell, Judge.</p> <p>Action by L. G. Shelton against the First National Bank of Mannsville. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Kay County; Wm. Bozvles,, Judge. </p> <p>Action by Charles E. Foudray against Salem Eouts. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Pawnee County; John Caruthers„ Judge.</p> <p>Action of Swan C. Nelson against W. D. Kidwell, Judgment for defendant, and defendant brings error.</p>

Error from District Court„ Bryan County; D. A. Richardson, Judge. Action of Mary Rushing, for herself and as next friend of Ivy Roy Rushing, a minor, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by Charles C. Bell and another against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from Kay County Court; Claude Duval, Judge. </p> <p>Action by L. O. Allen against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Cleveland County; R. McMillan, Judge.</p> <p>Action by John L. Bohannan against L. M. Jennings. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Delaware County; John H. Pitchford, Judge. </p> <p>Action by W. H. Cloe against T. J. Rogers. Judgment for defendant, and plaintiff brings error.</p>

<p>PARENT AND CHILD — Gifts—Validity. Under the rule existing in the Indian Territory, the existence of a fiduciary relation between a parent and his child was not necessarily fatal to a deed or gift from the former to the latter, it being held by the federal courts that such a deed or gift was natural and reasonable, and sustained by the presumption that it was inspired by parental affection and devotion; this presumption overcoming the ordinary presumption that an unnatural or unreasonable gift procured through a fiduciary relation was void, and the burden was upon those who assailed it to show that it wa; procured by the exercise of unlawful or fraudulent undue influence.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Supervision — Corporation Commission — Appeal. Section 20, art. 9, of the Constitution, which provides that “from any action of the 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 classifications of traffic, schedule, facilities, conveniences, or service are affected,” confers appellate jurisdiction upon the Supreme Court in all actions before the Corporation Commission wherein it is sought to regulate the management and operation of transportation companies within the state in the interest of persons who use such companies for the trans-. portation 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> Error from Rogers County Court; H. Tom Kight, Judge. </p> <p>Action by the Johnston Abstract & Loan Company against J. W. Swarts. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Zack Murphy against L. C. Taylor. From the judgment, Záck Murphy brings error.</p>

<p> Error from District Court, Osage County; John J. Shea, Judge. </p> <p>■ Action by Bivins & Carroll against John L. Bird, Sheriff of Osage County. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. SALES — Breach of Warranty — Damages-. A purchaser of a team of horses, at the time of the purchase in the month of February, stated to the seller that he desired the horses with which to cultivate a crop on 70 acres of land. The seller represented and warranted the horses to be sound and in good health, and capable of rendering the services for which they were desired. The horses were unsound, diseased, and without value, because of which the purchaser was unable to plant and cultivate 30 acres of his land. There was no allegation that other horses with which to cultivate the land could not be had upon the market, or if they could be had that the purchaser was unable to buy them; and that such facts were within the knowledge of the seller. Held, that the profits the purchaser would have realized -• from the cultivation of said land in a crop of cotton are not recoverable as damages resulting from a breach of the seller’s warranty, because same are remote, speculative, uncertain, and not within the contemplation of the parties at the time of the sale. Held, also, that the price contracted by the purchaser to be paid by him as rents on said land constitutes no element of his damages nor a proper measure thereof.</p> <p>2. SAME — Breach of Warranty — Damages. As a general rule, the measure of damages recoverable for breach of warranty of personal property is the difference in value the property sold would have had at the time of the sale, if it had been sound or as warranted, and its actual value with the defects constituting the breach of warranty.</p> <p>(Syllabus by the Court.)</p>

<p> Error from McIntosh County Court; Frank W. Rushing, Judge. </p> <p>Action by H. D. Lambert against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. COUNTIES — County Seat — Location—Submission of Question to Popular Vote. The fact that a partisan of one of two cities that were candidates for the location of a county seat had, on the day of election, at his place of business, a block from the polling place in one precinct, whisky, which he dispensed freely, promiscuously, and indiscriminately to some of the voters after they had voted, and to others who were not voters, where it is not shown that such whisky had been promised to the voters before casting their ballot, for the purpose of influencing them in voting, and some of the voters did not receive whisky, is not sufficient cause to require, in a contest of said election, the entire vote cast at said precinct to be rejected.</p> <p>2. SAME — County Seat — Location—Submission of Question to Popular Vote — “Swear.” At a county seat election, voters at several precincts, on entering the polling places, were asked by the clerk the questions necessary to enable the clerk to fill out the blanks in the voter's affidavit required by section 12, art. 4, c. 31, p. 382, Sess. Laws 1907-08. The voter having answered fully, the clerk filled out the blank in the affidavit; whereupon the voter, in the presence of the special election commissioner, signed the affidavit, after which the special election commissioner, who is authorized by law to administer oaths to voters at such elections, explained 'the affidavit to the voter, and asked if he understood same to be his affidavit of qualification as a voter, or asked if he understood he was signing an affidavit that he was a legally qualified voter, to which the voter answered, “Yes,” and the election commissioner thereupon signed his jurat upon the affidavit, and the voter was given a ballot and permitted to vote. Held that, by reason of section 2182, Comp. Laws 1909, said acts ou the part of the voter and of the election officers constituted a swearing by the voter to said affidavit, as required of him by said section 12, supra. Following Inc. Town of Che-cotah v. Inc. Town of Eufaula, infra, 119 Pac. 1014.</p> <p>3. SAME — County Seat — Location—Geographical Center of County. The Chilocco Industrial School reservation constitutes part of the geographical territory of Kay county, and the Secretary of State, in determining the geographical center of said county, did not err in considering said reservation as a part of the county.</p> <p>4. SAME — County Seat — Location—Geographical Center of County. To ascertain the distance between the geographical center of a county and the nearest corporate limits of a city, as authorized by section 6, art 17, Constitution, the measurement is to be made upon a straight line between said points, and not by the usual traveled way.</p> <p>5. MUNICIPAL CORPORATIONS — Extent of Territory — Proceedings for Annexation of Territory — Collateral Attack. Where a city of the first class, acting under section 458, Wilson’s Rev. & Ann. St., enacted an ordinance annexing certain additions to its corporate limits, and continuously for about nine years thereafter exercised municipal authority over the annexed territory, levied and collected taxes thereon, constructed public improvements thereon, and did all other things incidental to maintaining a municipal government thereon, and the validity of such annexation has never been questioned by the state, a rival city, in a proceeding to contest a county seat election, cannot eollaterallj attack the validity of the ordinance or of the proceedings by which the additions were annexed to the municipal corporate limits.</p> <p>6. COUNTIES — County Seat — Location—Geographical Center. The fact that a certificate of the Secretary of State, showing the geographical center of a county, executed by virtue of section 6, art. 17, Constitution, was issued before an election was held under said section for determining the permanent location of a county seat does not render such certificate invalid.</p> <p>7. SAME — County Seat — Location—Geographical Center. Section 6, art. 17, Constitution, does not require that the distance between the geographical center of the county and the nearest corporate limits of any city or town shall be determined by measurement made by the ‘Secretary of State, but such measurement may be made by other persons, whose testimony is competent to establish such distance.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Payne County; A. H. Huston, Judge. Application by W. E. Erwin for mandamus to L. G. Wheeler to require him to turn over the records, books, and documents belonging to the office of town clerk of the' town of Cushing, Payne county. Judgment for defendant, and plaintiff brings error.

<p> Error from District Court, Johnston County; A. T. West, Judge. </p> <p>Action by the Vulcan Iron Works Company against Wm. J. Scott. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Okmulgee County Court; M. M. Alexander, Judge. </p> <p>Action between Herbert E. Smith and Clara E. Eldred and others. From the judgment, Smith brings error.</p>

<p> Error from District Court, Greer County; G. A. Brown, Judge. </p> <p>Action of S. H. Tittle and others against the Board of Commissioners of Greer County. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Rogers County; John H. Pitchford, Judge. </p> <p>Action between James P. Allen and H. H. Oliver. From the judgment, Allen brings error.</p>

<p>MUNICIPAL CORPORATIONS — Charters—Recall of Officers — Petition. The ordinance of a city operating under a charter form of government provided for the recall of its executive officers by filing with the city clerk a petition signed by electors qualified to vote for a successor of the incumbent sought to be removed, equal in number to at least 25 per cent of the last preceding vote cast, and made it the duty of the said clerk, upon filing of such petition, to “ascertain by examination thereof and of the registration books and election returns, whether the petition is signed by the requisite number of electors.” A petition was filed containing names equal to 25 per cent of the number of votes cast at the last election. The clerk refused to certify to the sufficiency of the same, for the reason that the names signed to the petition which appeared upon the registration books did not equal the 25 per cent, required. On a proceeding in mandamus, the clerk was required to certify to the sufficiency of the petitions on the theory that qualified electors not on the registration books were qualified petitioners. Held, error.</p> <p>(Syllabus by the Court.)</p>

Proceedings by C. D. Baldwin and others before the Corporation Commission against the Plarriss-Irby Cotton Company. From the decision of the Commission, the defendant appeals.

Error from District Court, McClain County; R. McMillan, Judge. Action by C. L. Griffin, surviving partner of Griffin & Griffin, against the First National Bank of Byars, Okla., and another. Judgment for plaintiff, and the bank brings error.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by Roy Beacham, an infant, by his next friend, John Beacham, against the Independent Cotton Oil Company. Judgment for plaintiff, and defendant brings error.

<p>1. LIMITATION OF ACTIONS- — Personal Property — Replevin — Limitations. Under Mansf. Dig. see. 4478 (Ind. T. Ann. St. 1899, see. 2945) actions in replevin are required to be brought within three years:</p> <p>2. LIMITATION OF ACTIONS — Replevin—Property Taken out of Jurisdiction. The statute of limitations (Mansf. Dig. sec. 4478 [Ind. T. .Ann. St. 1899, sec. 2945]) as to personal property stolen and removed from’ this jurisdiction is suspended by Mansf. Dig. sec. 4502 (Ind. T. Ann. St. 1899, sec. 2969) and begins to run in favor of an innocent purchaser for value, so as to bar a recovery against the true owner, from the time the property is returned to this jurisdiction and by such purchaser held openly and notoriously for three years.</p> <p>3. LIMITATION OF ACTIONS — Submission to Jury. Where in re-plevin the statute of limitations had been suspended pending the removal of the property from this jurisdiction and since its return or the starting of the statute three years had not expired at the time of the commencement of the suit, held that the court did not err in refusing to submit to the jury the issue of the running of the statute.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by J. H. Parker against A. L. Hausam. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pawnee County; John Caruthers, Judge. </p> <p>Action between the Arkansas Valley National Bank and E. M. Clark., From the judgment, the Bank brings error.</p>

<p>1. TELEGRAPHS AND TELEPHONES — Regulation — Jurisdiction of Corporation Commission. An objection that the Corporation Commission fixed rates without evidence to support the order does i not run to the jurisdiction of the Commission to make the order, but to the reasonableness of the order when made.</p> <p>2. CONSTITUTIONAL LAW — Due Process of Law — Equal Protection of Laws — Regulation of Telegraph. Companies. A telegraph company is entitled to earn a fair return upon the present value of its property used in the business within the state; and where the Corporation Commission establishes rates that will not admit of such return as, under all the circumstances, is just, its order, establishing such rate, is in violation of the fourteenth amendment of the Constitution of the United States.</p> <p>3. .TELEGRAPHS AND TELEPHONES — Regulation—Determination of Reasonableness. The reasonableness or unreasonableness of rates prescribed by the Corporation Commission for the transmis: sion of messages by a telegraph company within the limits of the state must be determined with reference only to the intrastate business done by the carrier, and to the profits derived from that business. ' It is by dividing the capital of the carrier invested in the business in proportion to the earnings of each that the amount, of capital invested in intrastate business is found, and upon which the carrier is entitled to a fair return. And it is by dividing the total expense of conducting both its interstate and intrastate business on the same basis tliat the expense of conducting each is found. If the net profits' derived from the intrastate business, further reduced by the application of the order, fail to yield a reasonable return on the investment, the order is unreasonable and unjust, and will be reversed.</p> <p>4. COMMERCE — Subjects of Regulation — Charges by Telegraph Companies. An order of the Corporation Cosnmission, which provides: “No extra charge shall be made for delivering a telegraphic message in cities or towns in this state within a radius of two miles from the office of the delivering t.elegraph company; provided that such point of final delivery is within the corporate limits of such town or city” — applies to incorporated towns and cities only, and is not an unconstitutional interference with interstate commerce, but a valid exercise of the power of the Corporation Commission, not only as to intrastate, but as to telegraphic messages from points without to points within the state.</p> <p>5. TELEGRAPHS AND TELEPHONES — Regulation — Reasonableness. That part of the order whieh reads: "No telegraph office where messages are received and transmitted for the public shall be discontinued or abolished without first obtaining the consent of -the Commission, upon an application duly filed by the said company desiring such discontinuance, wherein shall be stated the reason therefor; it being understood that this refers to the main office, and does not include branches of the main office at any place” — is held to be unreasonable, and is modified, so as to require twenty days notice to the Corporation Commission of a proposed discontinuance.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by G. G. McKinnon against Wheeler Lively and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by Thomas Campbell against L. C. Harsh. Judgment for defendant, a'nd plaintiff brings error.</p>

<p>MASTER AND SERVANT — Injury to Railroad Employee — Fellow Servant — Constitutional Law. In an action for damages for personal injuries "by a section laborer against a railway company for' injuries inflicted upon the plaintiff by the negligence of a co-employee subsequent to statehood, the common-law doctrine of the fellow servant, in so far as it affects the liability of the master for injuries to his servant, is abrogated by section 36, art. 9, of the Constitution, which provides: "And every such employee shall have the same right to recover for every injury suffered by him for the acts or omissions of any other employee or employees of the common master that a servant would have if such acts or omissions were those of the master himself in the performance of a nonassignable duty.”</p> <p>(Syllabus by the Court.)</p>

<p>1. CHAMPERTY AND MAINTENANCE — Conveyance of Land Held Adversely. A conveyance of land made in contravention of sections 2214 and 2215, Comp. Laws 1909, is void as against persons holding adversely, either by themselves or tenants, and claiming to be owners of the land under color of title.</p> <p>2. LANDLORD AND TENANT — Disputing Landlord’s Title. A tenant, while remaining in possession, even after the expiration of his term, is precluded, on the doctrine of estoppel, from either setting up an adverse title to defeat an action of ejectment, or without first surrendering possession, making a Contest with his landlord over the title held by him at the time of securing the right of entry.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Motion for New Trial. As the questions for review are such that it would require a motion for a new trial in order to examine them, and no motion for a new trial was filed within the time prescribed by law, the motion to dismiss must be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>• Error from Ottazm County Court; W. Y. Quigley, Judge.</p> <p>Action by Charles P. Williams against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND EEBOE — Case-Ma.de—Settlement. A case-made must, be signed and settled by the judge who tried the cause. The certificate of the clerk that the case-made is correct will not da ■ away with the necessity of such authentication.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND EEEOE — Case-Made—Time for Filing. A trial judge has no power to extend the time in which to serve a case-made, after the time previously granted has expired.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Comanche County; G. A. Brown, Judge. Condemnation proceedings by the City of Lawton and others against the Lawton Rapid Transit Railway Company. Judgment for plaintiffs, and defendant brings error.

<p> Error from Stephens County Court; W. H. Admire, Judge. </p> <p>Action by W. S. Spears against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Appeal from the State Corporation Commission. </p> <p>Action by the State and C. H. Cannon & Son against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant appeals.</p>

Appeal from the State Corporation Commission. Proceedings by the State and A. Haber against the Atchison, Topeka & Santa Ee Railway Company, before the Corporation Commission. From the judgment the Railway Company appeals.

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by the N. S. Sherman Machine & Iron works against the Baker Gin Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MANDAMUS — When Lies — Commissioners of Land Office. A mandamus will not issue to compel the performance of an act by the Governor of the state, but a mandamus to the Secretary of State, State Auditor, and two other state officers, who, with the Governor, comprise the Commissioners of the Land Office of the state of Oklahoma, may be issued to require them to perform ministerial duties east upon them by law as members of said board.</p> <p>2. SCHOOLS AND SCHOOL DISTKICTS — State Treasurer — Control of Permanent S.chool Pund. There is no constitutional mandate or legislative act which directs that the permanent school fund donated by Congress to the state, or arising from the sale of public lands or other sources, shall be immediately placed in the hands of the State Treasurer»</p> <p>(Syllabus by the Court.)</p>

<p>1. CARRIERS — Injuries to Passengers — Question for Jury. Where there was evidence tending to establish that plaintiff, who had gone to the depot of the railway company and purchased a ticket, for the purpose of embarking upon one of its passenger trains, and who, after purchasing the ticket, went out upon the platform to watch for the train, and upon arrival of the train went up where the people were getting on and off, when he heard the conductor call, "All aboard!” turned and caught with his hands the iron rods of the train about its entrance, for the purpose of getting on, and, as he did so, the train moved up with a sudden jerk, jerking loose one of his hands with considerable force and throwing him around against the train, and that by the sudden jerk, and by striking him against the side of the ear, he was hurt across the breast and received other injuries, it was not error for the court to submit to the jury for its determination, under proper instructions, whether the accident was caused by the negligence of the railway company.</p> <p>2. TRIAL — Instructions—Requests—Instructions Already Given. It is not error to refuse to give an instruction that correctly states the law, if substantially the same instruction is embodied in the charge of the court to the jury, and the charge, taken as a whole, correctly states the law applicable to the facts in the case.</p> <p>3. WITNESSES — Impeachment—Admissibility of Evidence. On the trial of a civil action at which the plaintiff testifies as a witness in his own behalf, it is competent for defendant to prove that plaintiff, in furtherance of the identical cause, and for the purpose of prevailing therein, had been guilty of base, dishonorable, or criminal conduct. Such evidence is admissible in behalf of defendant, both to discredit the plaintiff as a witness, and to throw suspicion upon the justice of his causo of action.</p> <p>4. TRIAL — Reception of Evidence — Offer After Objection Sustained. Where the purpose of a question objected to and the nature of the expected answer thereto is evident, specific offers of proof are not required to entitle the party to a review of a ruling sustaining an objection to the question, if an exception thereto has been duly saved.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>■ Proceedings on execution in favor of Louisa Adams against J. C. Williamson and another. From an order .confirming a sale .under the execution, defendants bring error.</p>

<p> Appeal from the State Corporation Commission. </p> <p>Proceedings by the State, on the relation of the Shawnee City Waterworks an,d others, against the Shawnee Gas & Electric Company, before the Corporation Commission. From an order granting a reduction in rates, the Shawnee Gas & Electric Company appeals.</p>

Appeal from the State Corporation Commission. Proceedings before the Corporation Commission against the S't. Louis, Iron Mountain & Southern Railway Company. From an order of the commission, the railway company appeals.

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Lena Lilly against the St. Louis & San, Francisco Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. CORPORATIONS — Organization—Collateral Attack. In an action in damages brought by plaintiff as a domestic corporation, an answer averring, in effect, that plaintiff’s organization was a pretended one in fraud of the laws of the state in that it was not organized for any purpose authorized by such laws, is not a collateral attack within the contemplation of Comp. Laws 1909, sec. 1256, but contains all that is essential to a plea of nul tie! corporation, and a demurrer thereto was improperly sustained.</p> <p>2. SAME — Corporate Existence — Estoppel to Deny. A suit in damages by plaintiff as a domestic corporation against defendant as a common carrier of telegraphic messages for hire for failure to correctly transmit one message, and for failure to promptly deliver another. Held, that defendant is not estopped to deny the corporate existence of plaintiff at the date of the contract.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Pittsburg County; Preslie B. Col'e, Judge.</p> <p>Action by the Mergenthaler Linotype Company against the American National Bank of MeAlester and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Walter Colbert against the City of Ardmore. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Cleveland County; R. McMillan, Judge. </p> <p>Action between R. A. Gaffney and E. C. Stanard and others. From the judgment, Gaffney brings error.</p>

<p>1. CHAMPERTY AND MAINTENANCE — Conveyance of Land Held Adversely. St. Okla. 1893, sec. 2026 (Wilson’s Rev. & Ann. St. 1903, see. 2112; Comp. Laws 1909, sec. 2215), making a misdemeanor the buying or selling of any pretended right or title to land, where the grantor or those by whom he claims have not been in possession or taken the rents and profits thereof for the space of one year before such conveyance, is declaratory of the common law, and a conveyance of land made in contravention thereof by the rightful owner, as against the person holding adversely, is void.</p> <p>2. SAME — Deed of Land in Adverse Possession — Color of Title, it is not essential under the foregoing statute that defendants were in adverse possession of the conveyed premises, under color of title, at the time of conveyance to plaintiff to render^the deed void, it is sufficient if defendant was in possession adversely to plaintiff and his grantors.</p> <p>3. ADVERSE POSSESSION — What Constitutes. One who, after a boundary line is established by the county surveyor as by statute provided, continues to occupy a disputed strip of land beyond his boundaries, as fixed by said survey, retains the same within his inelosure, cultivates it, receives the profits therefrom, and refuses possession to the real owner holds it adversely to the real owner.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pontotoc County; Robt. M. -Rainey,. Judge. Citation to R. S. Floyd, guardian of Louisa Byrd, to show cause why he should not .be discharged as guardian. From an order removing the guardian, he brings error.

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by the Board of Directors of School District No. 21 ■of Oklahoma County against the Board of Excise of Oklahoma County. Judgment for plaintiff, and defendant brings error.</p>

Error from Blaine County Court; Geo. W. Ferguson, Judge. Action by the State and Blaine County against the Estate of A. R. Cawthorn, deceased. Judgment for defendant, and plaintiffs bring error.

<p>Error from Johnston County Court; Nick Wolfe, Judge.</p> <p>Action by V. B. Blair against the First National Bank of Tishomingo. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by A. G. Cox against the City of Wynnewood. Judgment for plaintiff, and defendant brings error.</p>

<p>1. ABATEMENT AND REVIVAL — Actions—Substitution of Next Friend. In an action brought under the laws existing in the Indian Territory at and prior to the erection of the state for a ward by a guardian for damage to real estate, the ward was the real party in interest, and, the guardian having died prior to the final determination thereof, section 3436 (Mansf: Dig. see. 5231; S. & H. sec. 5920), Ind. Ter. St. 1899, has no application.</p> <p>(a) Section-3160 (Mansf. Dig. sec. 4955; S. & H. see. 5645; G. D. sec. 4491), Ind. Ter. St. 1899, applies.</p> <p>(b) Tt was permissible for the court by order to permit'said cause to be prosecuted to a final determination by the next friend of such minor.</p> <p>2. RAILROADS — Similar Fires — Evidence. Same as paragraph 1 of the syllabus in St. Louis & S. F. R. Co. .v. Shannon, 25 OHa. 754, 108 Pac. 401, 21 Ann. Gas. 1209.</p> <p>3. EVIDENCE — Report by Guardian. Certain fruit .trees were alleged to have been destroyed by fire as- a result of the railway company's negligence. The trees were the property of a minor whose guardian reported to the probate court the alleged damage and his estimate of the value of said trees damaged. Afterwards the minor, through her said guardian, instituted suit against the railway company for damages for the destroying of said fruit trees. The guardian having died, the action was continued in the name of said minor by her next friend. On the trial of said cause the railway company sought to introduce said inventory or report of said guardian as to the alleged damage to said trees and the estimated value fixed in said report by said guardian. Held, under the status of this record, to be inadmissible.</p> <p>4. RAILROADS — Operation — Fires — Actions — Burden of Proof— Question for Jury. Under the law as it existed in the Indian Territory, the burden of proof was upon the plaintiff to establish the causal negligence of the defendant.</p> <p>(a) When the plaintiff proved, if it did, that the fire was caused by sparks emitted by defendant's engine, that burden shifted to the defendant, and required it to establish, by a fair preponderance of evidence, that it had exercised reasonable care to provide the most effective mechanical contrivance in knowu practical use to prevent the burning of private property by the escape of fire from its engine.</p> <p>(b) No matter how much eare is observed in the construetion and operation of a locomotive on a railway track, it is always a question of fact for the jury to determine as to whether the railway company’s permitting inflammable material to accumulate on its right of way was negligence, if it was ignited from sparks from the locomotive and fire was communicated from the right of way to adjacent property which was thereby destroyed.</p> <p>(c) For a railroad company to allow dry grass, weeds, and other combustible matter, which are the natural accumulations of the soil, to remain on the right of way, is not negligence per se; and the company would not be guilty of negligence and liable for losses resulting from fire occasioned by sparks emitted from its engine, igniting such accumulations, unless such accumulations were such as would not have been permitted by a cautious or ordinarily prudent man on his own premises, if exposed to the same hazard.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — County Courts — jurisdiction—Title to Land. In an action in a county court against certain persons for falsely representing themselves to have the right of possession and use of a tract of land for the succeeding year, by which representations they induced plaintiff to lease the land from them for said year and to pay a valuable consideration therefor, plaintiff alleged in his petition that the title to said land was at the time owned by another person than defendants and other than the person under whom defendants claimed, and that no valid lease had ever been made by the owner to defendants. Held, that the petition upon its face shows that title to land is drawn into question, and that by reason of section 12, art. 7, of the Constitution, the county court has no jurisdiction of the cause.</p> <p>(Syllabus by the Court.)</p>

Brror from Tulsa County Court; N. J. Gubser„ Judge. Action by Ella J. Sevy against George A. Stewart and another. From an order setting aside judgment against defendants and dismissing the cause,'plaintiff brings error.

<p>MUNICIPAL CORPORATIONS —Mandamus —Charter —Collateral Attack. A charter having been framed by a city containing a population of more than 2,000 inhabitants, for its own government, by freeholders elected for such purpose, and the same having been submitted to the qualified voters thereof for adoption, and returns . of such election having been made and the charter submitted to the Governor for his approval, and the Governor having approved the same, the invalidity of such charter on the alleged failure to comply with some of the requirements of sections 3a and 3b of article 18 of the Constitution cannot be raised in a mandamus proceeding brought by one of the officers holding prima facie evidence of title from a municipal election held pursuant to the powers of such charter, against one of the officers holding under the old charter to recover the belongings of such office.</p> <p>(a) In a mandamus proceeding, brought by an officer elected at a municipal election held under the powers of such charter to require the turning over to him the belongings of sueh office by an officer claiming to hold by virtue of his election under the old charter, said relator in the mandamus proceeding holding a certificate of election by virtue of a municipal election held under the powers of sueh charter, the respondent will not be permitted to contest the title or the right of the relator to such office on the alleged ground of the invalidity of sueh municipal election on account of the failure to hold a primary election pursuant to the primary election laws passed by the Legislature to govern municipalities, or other irregularity in holding sueh election.*</p> <p>(Syllabus by the Court.)</p> <p>Hayes and Kane, JJ., dissenting.</p>

<p>1. FRAUDS, STATUTE OF — Action for Price — Demurrer. A petition. alleging, in substance, that a certain car of "coal was sold and delivered to the defendant at the special instance and request of the defendant, and the same was received by the defendant and used by him and converted to his own use,” the defendant thus being indebted to the plaintiff in the sum of $112, the agreed price, is good against a demurrer on the ground that said contract was verbal — the same, or a note or memorandum thereof, not being in writing, subscribed by the party to be charged, or by his agent.</p> <p>2. APPEAL AND ERROR — Action for Price — Evidence. The evidence on the part of the defendant in error being that the car of coal was sold by its agent to and delivered to the plaintiff in error, in the sum for which judgment was rendered, not being contradicted, the judgment of the lower court will not be disturbed on review here.</p> <p>(Syllabus by the Court.)</p>

Appeal from the State Corporation Commission. - Proceedings before the Corporation Commission by the State and others against the Harriss-Irby Cotton Company. From an order of the Commission, the Cotton Company appeals.

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

<p> Error from Jefferson County Court; G. M. Bond, Judge. </p> <p>Action by the Stevens, Kennerly & Spragins Company against A. M. Dulaney and another. Judgment for defendants, and plaintiff brings error. *</p>

<p> Error from Jefferson County Court; G. M. Bond, Judge. </p> <p>Action: by the Stevens, Kennedy & Spragins Company against A. M. Dulaney and PI. M. Dulaney. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL'AND ERROR — Jurisdiction—Time for Filing Petition. Where more than one year has intervened between the rendition of the final order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Briefs—Effect of Failure to File. A cause having been duly assigned for hearing, and being reached on the calendar in due course, no briefs having been filed as required by rule 7 (20 Okla. viii, 95 Pac. vi), the same will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>EVIDENCE — Admission of Principal. Where it is sought to introduce the admission of the principal in a suit against the ' surety, it should be remembered that the latter is only' obligated for the principal’s acts and not for his language. If, therefore, it does not appear in this court that the admission constituted part of the res gestae, the ruling of the 'court below sustaining an objection to such an admission will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Proceeding in Error — Time of Filing. A proceeding in error for the purpose of reviewing an order discharging an attachment, when not filed with the clerk of the Supreme Court within 30 days after the making' of such order, will be dismissed ■for want of jurisdiction.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Creek County Court; Josiah G. Davis, Judge. </p> <p>Action by Gladys Bridges against W. A. Aggers.' Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Bill by Tal Milwee and others against the City Council of the City of MeAlester and others. Judgment for plaintiffs, and defendants bring error.

<p>APPEAL AND ERROR — Review—Bill of Exceptions — Case-Made. Errors alleged to have occurred on the trial of a cause cannot be presented to this court in the absence of a bill of exceptions or ease-made.</p> <p>(Syllabus by the Court.)</p>

<p>1. RAILROADS — Accident at Crossing — Instruction. Evidence examined, and held sufficient to take the cause to jury on the question of proximate cause.</p> <p>2. NEGLIGENCE — Contributory Negligence — Last Clear Chance. In an action for damages on account of the alleged negligent act of defendant, it is error for the court to charge the jury that the plaintiff may recover notwithstanding his contributory negligence, if the defendant failed to exercise- reasonable care to avoid the injury after it discovered, or by the exercise of reasonable care might have discovered, that,an accident was imminent.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Record—Review of Motions. Motions presented in tlie 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 ease-made.</p> <p>(Syllabus by the Court.)</p>

<p>Brror from District Court, Marshall County; A. H-. Ferguson, Judge.</p> <p>Action between the American Trust Company and others and Sallie Ford and Jackson Lewis.' From the judgment, the American Trust Company and others bring error.</p>

Error from District Court, Pittsburg County; Preslie B. Cole; Judge. Application by the State, on the relation .of Sam J. Marshall and others, for writ of mandamus against the McAlester-Edwards Coal Company and others. Judgment for relators, and defendants bring error.

<p> Brror from District Court, Pittsburg County; Preslie B. Cole, Judge. </p> <p>Action by Antone Schuler and others against R. C. Sawyers. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. REGISTERS OF DEEDS — Compensation — Statutory Provisions. Section 1738, Comp. Laws 1909 (section 1282, Wilson’s Rev. & Ann. St. 1903), which provides “the register of deeds shall receive from the county for indexing, in the numerical index, records already made, in addition to his other fees, a compensation to be fixed by the county commissioners,” does not authorize the members of the board'of county commissioners of a county to enter into a contract with the register of deeds of said county to pay him for services rendered under section 1741, Comp. Laws 1909, which provides: “The register of deeds of any county in this state, wherein is situated a town in which prior to November 16, 1907, an office for filing and recording deeds, mortgages, liens, and other instruments was maintained by the United States, is hereby authorized, empowered, and directed to receive and transfer to his office all the records, files, hooks, and instruments kept in such office, and which pertain to and properly belong in the office of register of deeds; and when so transferred, such records, files, books, and instruments shall be and become part of the permanent records of the office of the register of deeds in such county.’’</p> <p>2. COUNTIES — Compensation—Nature of Eight in General. A county officer is not entitled to compensation from the county for official services rendered, unless the authority-therefor can be found in the laws of the state, or may be deduced therefrom by fair implication.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Application by W. A. Eakin for a peremptory writ of mandamus to L. L. Wade, County Superintendent of Jefferson County. Judgment for plaintiff, and defendant brings error.</p>

<p> Error-from District Court, Garfield County; Jno. F. Curran, Special Judge. </p> <p>Action by Andrew W. Gillespie against Patrick Mclnteer and others. Judgment for plaintiff, and defendants bring error.</p>

<p>MUNICIPAL CORPORATIONS — Bonds—Duty of Bond Commissioner. Where it is agreed that certain bonds were issued by a municipality under the provisions of its charter, and not under any statute of the state, the act of March 24, 1910, makes it the duty of the Attorney General, as ex-officio bond commissioner, to ascertain not only whether authority so to do exists under its charter, but all other facts necessary to determine their validity, and, if valid, to approve the same as- provided by said act.</p> <p>(Syllabus by the Court.)</p>

<p>1. PRINCIPAL AND AG-ENT — Agency. Where a borrower, by a written application or otherwise, expressly makes an intermediary his agent, for the purpose of negotiating a loan and receiving the proceeds, the intermediary is the agent of the borrower, and not of the lender.</p> <p>2. SAME — Wrongful Acts of Agent — Evidence. Evidence examined and considered, and held not sufficient to sustain the verdict of the jury, finding that Hagan was the agent of the lender in negotiating the loan, and that the loss resulting from the failure of Hagan to pay over the money to the borrower, delivered to him for that purpose by the lender, falls upon the lender.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Noble County; W. M. Bowles, Judge. </p> <p>Action by the Foster Lumber Company against the Atchison,. Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. DEPOSITARIES — Deposits of Public Moneys — Bonds—-Construction. Where a bond for $100,000 executed pursuant to an act approved March 8, 1901 (Sess. Laws 1901, sec. 26, p. 58), in part read: “Now, therefore, the condition of the above obligation is such that if the said Capitol National Bank shall promptly collect all drafts, checks and certificates of deposit which may be delivered to said depository by the Territorial Treasurer for collection and if said Capitol National Bank shall at all times as safely keep and have forthcoming when required all moneys of the territory of Oklahoma, so collected in said bank; and shall in all respects duly account for all moneys according to law and shall also pay all drafts or cheeks that may be issued to the Territorial Treasurer by said depository and shall in all respects conform to all of the provisions of a certain contract entered into upon the 6th day of March, 1903, by Cassius W. Rambo, as Treasrrrer of the territory of Oklahoma, party of the first part, and the said Capitol National Bank, party of the second part, for the period of one year beginning on this 6th day of March, 1903, then this obligation to be null and void; otherwise to be and remain in full force and effect,” — held, in a suit for contribution on said bond, that, “and shall in all respects conform to all of the provisions of a certain contract entered into upon the 6th day of March, 1903, by Cassius W. Rambo, as Treasurer of the territory of Oklahoma, party of the first part, and the Capitol National Bank, party of the second part,” should be read as though in parenthesis. Held, also, that the duration of the risk on said bond extended to March 6, 1904, only, and that the insolvency of the bank pending the duration of said risk was not a breach of said bond.</p> <p>2. SAME — Effect of Binder. In a suit for contribution on a “ binder ’ ’ which read: “In consideration of the sum of seventy-five and no-100 dollars, the United States Fidelity and Guaranty Company hereby guarantees the fidelity of Capitol National Bank, in the sum of twenty-five thousand dollars, in favor of territory of Oklahoma as depository in the employ of said - subject to all . the covenants and conditions set forth and expressed in the bond of this company to be issued on even date herewith, and forwarded from the home office within fifteen days from date of issue. This instrument shall date from its countersigning by the general agent, but all liability of the eonrpany hereunder shall cease and determine on the issuance by the company of the said duly executed bond, or if the bond is not issued on the fifteenth day from the countersigning of said instrument by the general agent. City, Oklahoma City. State, Oklahoma. John R. Bland President. Geo. ft. Oallis, Secretary. [Seal.] March 30, 1904. Countersigned: T. M. Upshaw, G-en. Agent ’ ' — assuming that ‘ ‘ subject ’to all the covenants and conditions set forth and expressed in the bond of this company'’ had reference to, and the same “should be construed as if it contained the terms and conditions of the bond prescribed by an act approved March 8, 1901 ( Sess. Laws 1901, sec. 26, p. 58), held, that the same failed to constitute a valid ex-ecutory contract to make said bond, in that the minds of the parties thereto failed to meet upon the duration of the risk.</p> <p>(Syllabus by the' Court.)</p>

<p>1. APPEAL AND ERROR — Review—Discretion of Trial Court-Grant of New Trial. A motion for a new trial, assigning, in effect, accident and surprise which ordinary prudence could not have guarded against, is addressed to the sound judicial discretion of the court; and where the court, upon conflicting affidavits filed pro and con, denied the motion, this court will not, under the showing made, disturb the ruling, where there is no abuse of that discretion.</p> <p>2. WATERS AND WATER COURSES — Flowage—Actions for Injuries — Pleading. A petition which substantially states that plaintiff is in possession, under-lease from the owner, of a certain tract of land, that defendant’s line of railway runs through it upon a grade or embankment higher than the adjoining lands lying westward, that defendant has failed and refused to establish and maintain proper- openings for the outlet of surface water falling on and flowing over and across said lands, and, on account of said embankment, caused to be filled up a natural water course across said land, which caused the surface water to stand and back up on his crops growing on said lands, to his damage, states a cause of action occasioned by the obstruction of a water course, and not for damage by surface water only.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by George W-> Jones against the First National Bank of Maud and Omer McKown. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Murray County; Albert Rennie, Special Judge. Action in mandamus by J. B. White and others against T. E. Molaeek and others as the Board of Education of the City of Sulphur. Judgment for plaintiffs, and defendants bring error.

<p>1. APPEAL AND ERROR — Presenting Question in Lower Court— Theory of Cause. A party who has tried his case upon one theory in the trial court and lost cannot, on appeal to the Supreme Court, seek to have his cause reversed upon another and different theory, not presented to the trial court.</p> <p>2. LIMITATION OP ACTIONS — Forfeiture for Refusal to Acknowledge — Satisfaction of Mortgage — “Penal Statute.’’ Section 3057, Ind. Ter. St. (section 4746, Mansf. Dig.), making a mortgagee who fails, within 60 days after request, to acknowledge satisfaction of a mortgage that had been paid forfeit to the party aggrieved an amount not exceeding the amount of the mortgage money, is not a “penal statute,’’ within the sense of that term as used in section 2949, Ind. Ter. St. (section 4482, Mansf. Dig.), constituting a part of the statute of limitations in the Indian Territory, and requiring that all actions based upon penal statutes shall be commenced within two years after the offense shall have been committed or the cause of action shall have accrued.</p> <p>3, MORTGAGES — Satisfaction—Forfeiture for Refusal to Acknowledge. In an action by the mortgagor against a mortgagee to recover under section 3057, Ind. Ter. St. (section 4746, Mansf. Dig.) for the mortgagee’s failure to acknowledge satisfaction of a mortgage, as required by said statute, it is a competent defense for the mortgagee to show that there was a controversy between him and the mortgagor as to whether the mortgage debt had been paid, and, upon substantial grounds and in good faith, he refused to satisfy the mortgage, believing that the mortgage debt, or a part thereof, had not been paid, and that he is entitled to recover same; and, where there is evidence tending to support this issue of defense, it was error for the court to refuse an instruction thereon, correctly stating the ■ law applicable to such issue.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Grant County; W. M. Bowles, Judge. </p> <p>Action by the Jefferson Power & Improvement Company against J. L. Tuttle. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Muskogee County Court; W. C. Jackson, Judge. </p> <p>Action by Laura Crane and J. H. Harrison against the Merchants’ & Planters’ Insurance Company. Judgment for ■plaintiffs, and defendant brings error.</p>

<p>COUNTIES — Officers—Appointment and Tenure. Section 1, c. 152, Sess. Laws 1910-11, confers upon the Governor the sole power to make appointments to fill the offiee of county assessor created by said act, in the various counties of the state, and said power continues until a successor of the appointee of the Governor is elected and qualified; and within such time the Governor has the power to appoint a successor to a former appointee, who resigned.</p> <p>(Syllabus by the Court.)</p>

<p>1. MILITIA — Constitutional Provisions — Bill of Rights. Under section 14, art. 2 (Bills of Rights), of the Constitution of this state, providing that the military shall be held in strict subordination to the civil authorities, the state militia in active service, and in every emergency which arises therein, is subject to the control of the civil authorities.</p> <p>2. MILITIA — Control—Jurisdiction of Courts. The courts of this state having jurisdiction may, at the instance of any person who has been aggrieved or on behalf of the state, inquire into the acts of soldiers or officers of the militia of this state and determine whether they have been guilty of any conduct that would subject them to liability or punishment.</p> <p>3. MILITIA — Control—Jurisdiction of Courts. A member or officer of the state militia as a soldier in actice service is not relieved from civil liability for Ms acts while so engaged on the ground that he acted in obedience to an order received from the Governor as commander in chief through the regular military channels.</p> <p>4. JUDGMENT — Courts — Contempt — Self-Executing Judgment — Jurisdiction of Appellate Court — Disobedience of Void Order. A judgment of this court rendered under authority of sections 16 and 17, act of April 17, 1908 (Sess. Laws 1907-08, p. 385), conferring exclusive original jurisdiction on this court over all controversies arising under the provisions of said act, wherein the county seat, under a certain election held to permanently locate the same in Delaware county, was determined to be at the place of Jay, is self-executing.</p> <p>(a) This court has not original jurisdiction to restrain the adjutant general of this state from interfering with the county officers of said county in the location of their offices and the paraphernalia of their offices in any particular building in Jay.</p> <p>(b) This court having not jurisdiction to issue the restraining order, such order having been issued without such jurisdiction is void and no contempt could be committed in refusing to obey such order.</p> <p>(Syllabus by the Court.)</p> <p>Turner, C. J., dissenting in part.</p>

Error from District Court, Okmulgee County; John Caruthers,. Judge. Action by Eli Hardridge and others against Louisiana Che-cotah and others. Judgment for plaintiffs, and defendants bring error.

<p>APPEAL AND ERROR — Objections in .Lower Court — Exception to Decision on Motion for New Trial. The failure to except to the overruling of a motion for a new trial constitutes a waiver of the error as to such ruling and all alleged errors of law occurring at the trial, for which a new trial would be granted.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Osage County; John J. Shea, Judge.</p> <p>Action by the McLaughlin-Earrar Company against Clement Denoya and Emma Denoya. From the judgment, the McLaughlin-Earrar Company brings error.</p>

<p>Brror from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by V. C. Wall, trustee in bankruptcy of James M. Gilmore and another, against Addie B. Gilmore and another. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Review—Motion for New Trial — Necessity. Errors occurring on the trial of a cause cannot be reviewed by this court, though the cause was tried to the court without a jury, unless the errors complained of have been presented to the trial court by a motion for a new trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by C. R. Smith against Paul Whitlow and others. Judgment for defendants, and plaintiff brings error.</p>

<p>VENDOR AND PURCHASER — Breach of Contract — Pleading. A suit in damages for the breach of a written contract to convey land, wherein plaintiff “agrees to buy subject to an option given R. & W., expiring May 20th, 1909,“ must assign as a breach of the contract that defendants failed to sell and convey after R. & W. had failed to exercise their prior right to buy.</p> <p>(Syllabus by the Court.)</p>

<p>CANCELLATION OP INSTRUMENTS — Pleading — Petition. Allegations of petition examined, and held to properly state a cause of action against both defendants.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pottawatomie County; Roy Hoffman, Judge. </p> <p>Action by A. B. Ramsey against M. J. Bentley. Judgment for plaintiff, and defendant brings error.</p>

<p> Appeal from Corporation Commission. </p> <p>Appeal by the Atchison, Topeka & Santa Fe Railway Company from an order of the Corporation Commission fining the appellant.</p>

Error from Lincoln County Court; Fred A. Wagoner, Judge. Action by L. B. Hampton against W. H. Johnson. From a judgment for defendant in the county court on appeal from a judgment for plaintiff in justice court, plaintiff brings error.

Error from District Court, Carter County; Stilwell H. Russell, Judge. Action by G. W. Bingham and others against Max West-heimer and others. From the judgment, Bingham and others appeal.

<p> Error from Coal County Court; R. H. Wells, Judge. </p> <p>Action between J. H. Norrigan and J. E. Clark. From the judgment, Norrigan brings error.</p>

<p> Error from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge. </p> <p>Proceeding by the State against George M. Adams.</p> <p>Judgment for defendant, and the State brings error.</p>

<p> Error from District Court» Kingfisher County; A. H. Huston, Judge. </p> <p>Action by J. Collins against Mary E. Rackey and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Proceedings to Transfer Cause — Time for Taking Proceedings. Where the court below overruled a demurrer to the petition, and, the defendants declining to plead, judgment was rendered against them, the time to perfect an appeal from such judgment commences to run from the rendition thereof, and not from the time the motion for a new trial was overruled.</p> <p>(Syllabus by the Court.)</p>

Error from Noble County Court; H. E- St. Clair, Judge. Action by C. W. Swearingen and Hayes L. Greenleaf, partners, doing business under the firm name of Swearingen & Co., against the St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendant brings error.

<p>1. APPEAL AND ERROR — Briefs—Specifications of Error — Effect of Defects. Where brief of plaintiff in error fails to contain specifications of error complained of, separately set forth and numbered, and argument and authorities in support thereof stated in the same order, as required by rule 25 of this court (20 Okla. xii, 95 Pac. viii), the appeal may be dismissed.</p> <p>2. SAME — Proceedings to Transfer Cause — Time for Proceedings. An appeal from an order of the trial court sustaining a demurrer to plaintiff’s petition for failure to state a cause of action, and refusing plaintiff permission to amend, by reason of section 6082, Comp. Laws 1909, must be commenced in this court within one year after the rendition of the order,-or the same will be dismissed.</p> <p>3. SAME. An appeal from an order dissolving a temporary injunction, by reason of section 6093, Comp. Laws 1909, must be filed in this court within 30 days after the date of the order appealed from, or the same will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Continuance — Grant — Discretion of Court. Whether a continuance shall be granted is in the sound discretion of the trial court.</p> <p>2. REPLEVIN — Judgment—Damages. Under section 5696, Comp. Laws 1909, in an action to recover personal property, if the property has been delivered to the plaintiff and the defendant claim a return thereof, judgment for the defendant may be for the value of the property in ease a return cannot be had, and damages for talcing and withholding the same.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Oklahoma County: Edward Dezves Oldfield, Judge. Petition of Thomas R. Clift for writ of mandamus against Leo Meyer, Auditor of the State of Oklahoma. Judgment for petitioner, and defendant brings error.

<p> Appeal from State Corporation Commission. </p> <p>Appeal by the St. Louis & San Francisco Railroad Company from an order of R. J. Miller and others, as the Corporation Commission.</p>

<p> Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. </p> <p>Action by Jennie Yarbrough against Josie C. Spalding and' another. Judgment for defendants, and plaintiff brings error.</p>

<p>CARRIERS — Corporation Commission — Delay in Delivering Freight— Contempt — Evidence. Evidence examined, and held not sufficient to support the order of the Corporation Commission appealed from.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Noble County; Wm. M. Bowles, Judge. Action between the Southern Star Mining Company and Fred G. Moore and the American Concentrator Company. From the judgment, the mining company and Moore bring error.

Error from Pawnee County Court; N. B. McNeil, Judge. . Action by Frank Hudson and others against H. B. Bullen and others. Judgment for plaintiffs, and Bullen alone brings error.

<p>APPEAL AND ERROR — Parties—Dismissal. A petition in error by one of several defendants against whom judgment was entered jointly for the recovery of a specified sum to which the other defendants are neither made parties plaintiff nor defendant in error must be dismissed for want of necessary parties.</p> <p>(Syllabus by the Court.)</p>

<p> Error from. District Court, Creek County; W. L. Barman, Judge. </p> <p>Action by Anna Posten against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CONTRACTS — Actions—Instructions. The court instructed the jury as follows: “You are further instructed that if you find from the evidence,that plans, specifications, and detail drawings were furnished by the defendant, according to which the house mentioned in evidence was to be constructed by the plaintiff, and that such plans, specifications, and detail drawings were faulty and inconsistent, and it was not possible to construct a part or parts of the house according to the same, then, where such plans, specifications, and detail drawings were inconsistent, it was the duty of the plaintiff to reconcile or harmonize such faults or inconsistencies in a practical, workmanlike manner, so as to arrive at the fair and reasonable intention of the same, and to construct such house accordingly.” Held, error.</p> <p>2. SAME — Performance—Modifications. If the defendant in error, through its agent, suggested certain changes as to the specifications and plans for the construction of a house, and the plaintiff in error consented to the same, and the same were accordingly made, he is bound thereby.</p> <p>(a) If such change in the plans reasonably operated to decrease the cost to the defendant in error in building the structure, the plaintiff in error should have the advantage of the same.</p> <p>3. WORK AND LABOR — Effect of Express Contract — Performance Not According to Contract. Although the plaintiff in error may not have consented to the change in the plans, yet, if, after the house was completed under the changed plans, the plaintiff in error took possession and accepted the same, the defendant in error would then be entitled to recover on a quantum meruit, or quantum valebat basis.</p> <p>4. CONTRACTS — Performance—Substantial Performance. If the defendant in error endeavored, in good faith, to perform its contract according to the plans and specifications, and it substantially performed the same, there being some unimportant defects arising through accident, such defects not being such as to defeat or change the design embodied in the contract, then the contractor may recover, less the damage occasioned by the failure to comply with the terms of the contract.</p> <p>(Syllabus by the Court.)</p>

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