Volume 38 — Oklahoma Reports

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action by Browne Comelison against J. W. Blackwelder. Judgment for defendant, and plaintiff brings error.</p>

Error from District 'Court, Ohfuslcee County; John Carruthers, Judge. Action by George Washington, guardian of Emma Alexander, a minor, and another, against George Clarkson and another. Judgment for plaintiffs, and defendants bring error.

<p>Error from Superior Court, Custer County; J. W. Lawter, Judge.</p> <p>Action by C. E. Richardson against J. E. Yarborough. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garvin County; B. McMillan, Judge. Action by Alvin E. Pyeatt, guardian oí five minors by the name of Cash, against the Prudential Insurance Company and others. A receiver was appointed, a motion to vacate such appointment denied, and plaintiff brings error.

<p>APPEAL AND ERROR — Verdict—Evidence—^Malicious Prosecution. Evidence examined, and held that, as the same reasonably tends to support the verdict, the judgment of the trial court will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — iReview—'Conflicting Evidence. The evidence on the issues as joined being in conflict and the cause having been submitted to the jury under proper instructions, and it not appearing that the verdict is excessive, the same will not be disturbed on review in this court.</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Transfer of Appeals — County Courts. Where on appeal from a justice of the peace in Coweta division, Wagoner county, to the county court of Wagoner county, Coweta division, defendant moved to transfer the cause to the Wagioner division of the county court on the ground that Wagoner was nearest his residence, and where plaintiff appeared, and waived notice of Service of the application to transfer, held, construing Act March 12, 1909 (Sess. Laws 1909, p. 199) art. 13, secs. 2, 5, that “shall he transferred to, * * * the county court held in said county nearest defendant’s residence,” is mandatory, and that the court erred in overruling the motion.'</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Carter County; 8. H. Russell, Judge.</p> <p>Action by H. S. Joines and others against D. M. Rumph, County Treasurer. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Okmulgee County: Wade S. Stanfield, Judge. Action by Louisiana Checote against A. C. Potter. Judgment for plaintiff, 'and upon failure of defendant to begin proceedings in error, plaintiff filies motion in this court to affirm judgment.

<p>Original Action for Writ of Mandamus.</p>

<p>Error from County Court, Olcfuslcee County; T. T. Doyle, Judge.</p> <p>Action by John Solsberger and others against the Ft. Smith & Western Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from County Court, Washington County; A. T. 'Humeml, Judge. </p> <p>Action by A. Chapman and another against H. 6. Johnston and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from, County Court; Pontotoc County; ■ Conway O. Barton, Judge. Action 'by the Colonial Jewelry Company against J. W. Brown and another, doing 'business under the firm name of Brown & Johnson. Judgment for defendants, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Review—Amendments—Discretion of Court. To permit amendments when not changing the cause of action rests within the sound discretion of the trial court and will not be disturbed on appeal unless it affirmatively appears that its exercise has operated to the prejudice of -the rights of the complaining party.</p> <p>2. TRIAL — Directing Verdict. It is only' when the evidence, with all the inferences the jury could justifiably draw from it, will be insufficient to support a verdict for plaintiff that the court is authorized to direct a verdict for defendant; and, unless the conclusion follows, as matter of law, that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury under proper instructions.'</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — General Denial. Under the Code procedure a general denial is equivalent to a plea of nul tiel record at common law.</p> <p>2. EVIDENCE — Certified Copy of Judgment. Where it is only sought to prove contents and existence of a judgment, the producing in evidence of a duly authenticated copy) of the judgment itself is sufficient.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—Insufficient Record. Where the case-made does not contain a recital to the effect that the record contains all the evidence introduced on the trial of the cause, this court will not review any question depending upon the facts for its determination.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. APPEAL AND ERROR — Objection Below — Misjoinder of Parties. The question of misjoinder of parties plaintiff not having been raised in the trial court cannot be raised for the first time on review in this court.</p> <p>2. WITNESSES — Competency—Husband and Wife., The husband or wife is competent to testify for or against the other “when they are joint parties and have a joint interest in the action.”</p> <p>(a) It is essential not only that they be joint parties, but also that they have a joint interest in the action.</p> <p>3. APPEAL AND ERROR — Witnesses—Competency of Witnesses —Huéband and Wife — Agency—Harmless Error. Section 5842, Comp. Laws 1909 ('Rev. Laws 1910, sec. 5050), provides that the husband and wife are competent to testify for or against each other concerning transactions in which one acted as agent of the other. Held, that where the plaintiff, a married woman, sued for the rents and profits from a certain tract of land belonging to her, which cause of action arose prior to her marriage, she was not entitled to have her husband measure said land, and then testify in her behalf as to the number of acres ascertained by such measurements.</p> <p>(a) Incompetent evidence having been admitted as to the number of acres in cultivation, the same fact also being testified to by another witness in behalf of the same party in such manner as to render it competent, and the evidence on behalf of the opposite party raising a sharp issue as to such matters, the erroneous admission of said evidence cannot be held to constitute harmless error.</p> <p>4. EVIDENCE — Judicial Notice — Statutes. The courts of the state of Oklahoma take judicial knowledge of the laws in force at the time of the erection of the state in the Indian Territory by virtue of acts of Congr.ess.</p> <p>5. PARENT AND CHILD — Property of Child — Rents and Profits. Section 3465, Mansf. Dig. Ark. (sec. 2361, Inch Ter. Ann. St. 1899), providing that the father while living shall be the natural guardian of his minor children, and when their estate is not derived from him shall give security and account as other guardians, and section 3477, Mansf. Dig. of Ark. (section 2373, Ind. Ter. Ann. 'St. 1899), providing that where a minor is possessed of an estate not derived from the natural guardian, a curator may be appointed for its management, do not abrogate the common-law rule requiring the father to account for the rents and profits of any property which she may have derived from him, and of which he retains possession during her minority.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McClain County; B. McMillan, Judge. </p> <p>Action by L. C. Hocker against E. B. Johnson and John Madden. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Caddo County j F. M. Bailey, Judge. </p> <p>Action by G. H. Block against George C. Miller and Rufus W. Miller. Judgment for defendants, and plaintiff brings error.</p>

<p>1. PROPERTY — Ownership of Property — Possession. Possession of personal property, if unexplained, is prima facie evidence of ownership in the possessor.</p> <p>2. EVIDENCE — Ownership of Personalty. Acts and declarations of the possessor of personal property concerning the same are admissible in evidence to determine the nature of such possession, although not made in the presence of the one claiming ownership in the property.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — 'Case-Made—Notice of Settlement — Necessity. Though the ease-iiiade is served within the prescribed time, yet if the party is not served with notice of the time and place of its presentation for settlement, unless such an appearance was made as would operate to waive notice, or amendments as suggested by such party were allowed by the trial court, the case-made as settled cannot be considered in this court for any purpose.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Genevieve Wiley, by Hattie G. Wiley, her guardian, against Henry C. Cobb and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Pawnee Cotmty; L. M. Poe, Judge. Action by Michael J. McNeal, by his guardian, David Kinney, against J. F. Heatherington, as administrator of the estate of Henry A. Gifford, deceased, and others. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Washington County; T. L. Brown, Judge.</p> <p>Action by Owen Owen against Hugh M. Dixon. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior 'Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>■ Action by Viola Rye against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings, error.</p>

<p>1. MINES AND MINERALS — Mining Corporations — Liability of Stockholders. The action to enforce the liability of a stockholder in the corporations referred to in section 1426, Comp-Laws 1909 (Rev. Laws 1910, sec. 1362), is required to be begun within four months after the execution referred to 'therein is returned, and not from the time of the performance of the labor-for which suit was originally brought.</p> <p>2. SAME — Execution. The execution referred to in section 1426, Comp. Laws 1909 (Rev. Laws 1910, sec. 1362), is the general' execution provided for by article 19, c. 87, Comp. Laws 1909> (Rev. Laws 1910, art. 19, c. 60), against the goods, chattels,, lands, and tenements of the debtor, and an execution against the personal property only is insufficient upon which to predicate an action to enforce the stockholder’s liability as provided by such section.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissents.</p>

Error from District -Court, Hughes County; John Caruthers, Judge. Action by Lena Pigeon and others .against William Buck and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from. District Coivrt, Pawnee County; L. M. Poe, Judge. </p> <p>Action -by Frank Hudson against Smyser & McCormick and others. Judgment for plaintiff, and front an order denying motion of defendants named for new trial they alone bring error.</p>

<p> Error from Superior Court, Muskogee County; Fcurrar L. McCain, Judge. </p> <p>Action between Merritt Eslick and M. L. Mott. From the judgment, Eslick brings error.</p>

<p>1. TRIAL — Direction of Verdict — Weight of Evidence. In trials by jury in this jurisdiction, it is only where the facts, although undisputed, are such that all reasonable men must draw the same conclusion from them that the court is authorized to direct a verdict.</p> <p>2. INSURANCE — Action on Policy — Question for Jury» Generally the question of the falsity of the statements contained in a life or accident insurance policy, and the intent of the applicant in making them, are for the jury.</p> <p>3. SAME — Evidence. In an action on an accident insurance policy there was a sharp conflict in the evidence as to whether the insured was suffering from acute or chronic nephritis about 30 days prior to the issuance of the policy. A physician who was called into the case at that time, and who attended the insured until a few days prior to his death from an accidental gunshot ' wound inflicted about 30 days after the issuance of the policy, testified that he found the insured suffering from an acute attack of nephritis; that he responded readily to treatment for that disease, and within a few days commenced to show marked improvement; that within two or three weeks he was practically restored to health; that “his color was as good and he was as healthy looking as anybody during the latter part of the time I was treating him;” that an examination of the urine and the symptoms indicated that his recovery was complete. Held, that whether the insured was suffering from a “defect in the body,” within the meaning of that phrase in a statement of the insured indorsed on the policy to the effect that he had no “defect in body,” was a question for the jury.</p> <p>4. SAME — False Representations in Application — Burden of Proof. Under section 3784, Comp. Daws 1909 (Rev. Daws 1910, sec. 6685), statements made in an application for insurance, where the policy was issued without previous medical examination, shall, in the absence of fraud, be deemed representations and not warranties, and in an action upon such policy, where the falsity of such statements is relied upon as a defense, the burden is upon the insurer to show that such statements “are willfully false, fraudulent, or misleading.”</p> <p>5. SAME — Application — Representations — Statement. A statute which provides that statements made in an application for insurance shall he deemed representations and not warranties is remedial in its nature, and quite within the police power of the state.</p> <p>6. EVIDENCE — Action on Policy — Expert Testimony — Matter in - Issue. Evidence is inadmissible to show that facts suppressed or falsely represented in an application for insurance would have been deemed material by the insurance company, and that the company would not have issued the policy or would have canceled same if issued, had it known the truth in regard thereto, but insurance experts may state the usages of insurance companies generally in respect to charging higher rates or premiums or in rejecting risks or in cancelling policies, if issued, when made aware of the particular facts in question. \</p> <p>7. APPEAL AND ERROR — Harmless Error — Refusal of Instructions. It is not reversible error for the trial court to refuse to give an instruction based upon incompetent evidence introduced over the objection of the adverse party, when it does not appear that the party who requested such instruction was deprived of any substantial right thereby.</p> <p>8. TRIAL — Action on Policy — Instruction. Where, in an action on an insurance policy, a requested instruction was correct in so far as it defined the duty of the jury if they found certain facts ' to exist in relation to statements made by the insured in his application, but was erroneous in stating .that such statements were entitled to the status of executory stipulations or promissory warranties, and that a breach thereof rendered the policy void from its inception, whether the thing warranted is material or not, it is properly refused.</p> <p>9. INSURANCE — Action on Policy — Evidence—Admissibility. That part -of section 3784, Comp. Laws 1909 (Rev. Laws 1910, sec. 6685), which provides: “In any claim arising under a policy which has been issued in this state by any life insurance company, without previous medical examination or without the knowledge and consent of the insured, or in case said insured is a minor, without the consent of the parent, guardian, or other person having legal custody of said minor, the statements made in the application shall, in the absence of fraud, be deemqd representations and not warranties: Provided, however, that the company shall not be debarred from proving as a defense to such claim that said statements are willfully false, fraudulent or misleading, and, provided, further, that every policy which contains a reference to the application of the insured, either as a part of the policy or as having and bearing thereon must have attached thereto a correct copy of the application, and unless so attached the same shall not be considered a part of the policy or received in evidence” — does not prevent proof that statements made in the application are willfully false, fraudulent, or misleading- by the introduction of the application in cases where the policy contains no reference thereto either as a part of the policy or as having any bearing thereon.</p> <p>10. SAME — Statements in Application — Construction—Indorsement on Policy — Effect. Under section 3784, Comp.. Laws 1909 (Rev. Laws 1910, see. 6685), statements made by the insured in his application must be construed as representations and not warranties, and this requirement of the statute cannot be evaded by indorsing such statements upon the policy which also contains a provision to the effect that the policy is issued in consideration of such statements, each of which the insured by accepting the policy warrants to be full, complete, and true.</p> <p>11. SAME — Policy—What Law Governs. Where the insured was a resident of this state, where the policy was signed, delivered, and the premiums paid, the policy is an Oklahoma contract and governed by the laws of this state, though the insurer was a foreign corporation, doing business in this state, and the policy was executed at the home office of the company.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma, County Geo. W. Clark, Judge. </p> <p>Action by Lula Owen against the United States Surety Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by John H. Arnold and others against the City of Tulsa and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Creelc County; W. L. Barnum, Judge. Action by the Indiahoma Oil Company against the Thompson Oil & Gas Company and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Noble County; L. L. Cowley, Special Judge. Action by George L. Lynch .and others against Petty Johnson and others. Judgment for plaintiffs, sale on foreclosure confirmed, and defendants bring error.

<p> Error from Superior CouH, Oklahoma County; A. N. Munden, Judge. </p> <p>Action by W. H. Butcher against A. H. Haffner. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Canadian Countyj H. L. Fogg, Judge. Action by the Merchants’ National Bank against the Western Sales Company. ■ From the action of the trial court in overruling its plea, defendant brings error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by the Western Bank Supply Company against I. M. Putnam and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Gourt, Jackson County; Frank Mathews, Judge'. Action by the Oklahoma State Bank and others against A. J. Miller and another, and E. >G. Johnson and another intervened. From a judgment for plaintiff, defendants bring error.

<p>Original application by C. Seargeant and others against J. B. Cullison and others for a writ of prohibition.</p>

<p>APPEAL AND ERROR — Dismissal—'Case-Made Settled in Parties' Absence. Syllabus same as first syllabus in Nat. Bank of Collinsville v. Daniels, 26 Okla. 383, 108 Pac. 748.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTRACTS — Construction—What Law Governs. When the contract is to be partly performed in the state where it is made and partly in another, the presumed intention of the parties, gathered from circumstances surrounding the transaction, must govern.</p> <p>2. CARRIERS — Contract of Carriage — What Law Governs — Limitation of Liability. .S., the wife of an employee of a railway company, procured a free pass providing round-trip transportation between Wellington, Kan., situated a short distance north of the Oklahoma state line, to Perry, Okla., situated about 54 miles south thereof.. On the back of the pass was the following provision, which was signed by the plaintiff: “This pass is not transferable, must be signed in ink by the holder thereof, and the person accepting and using it thereby assumes all risk of accident and damage to person and baggage, under any circumstances, whether caused by negligence of agents, or otherwise. * * *” She was injured in the state of Oklahoma on the return trip. Held, that in an action to recover damages for such injury the waiver on the Back of the pass, although executed and delivered in the sister state, must be construed according to the laws of this state, where such a provision is valid, rather than the laws of the sister state, where it is invalid.</p> <p>3. SAME — Validity. When a railroad company gives gratuitously, and a passenger accepts, a pass, the former waives its rights as a common carrier to exact compensation; and, if the pass contains a condition to that effect, the latter assumes the risks of ordinary negligence of the company’s employees; the arrangement is one which the parties may make, and no public policy is violated thereby. And if the passenger is injured or killed while riding on such a pass gratuitously given, which he has accepted with knowledge of the conditions therein, the company is not liable therefor either to him or to his heirs, in the absence of willful or wanton negligence.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior 'Court, Pottawatomie County; Geo. C. Abernathy, Judge. </p> <p>Action by the Choctaw Cotton Oil Company against the Chicago, Rock Island & Pacific Railway Company. The Scottish Union & Mutual Insurance Company of Edinburg, Scotland, was substituted as plaintiff. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Jackson County; J. T. Johnson, Judge. </p> <p>Action by J. E. Anderson against W. D. Dawson. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Creek County; Josiah G. Davis, Judge. Action by John W. Overstreet against the United States Fidelity & Guaranty Company and another. Judgment for plaintiff, and the defendant named brings error.

<p>Error from Superior Gourt, Muslcogee County; Farrar L. MoGam, Judge.</p> <p>Action by II. E. Bell against the, Lynde-Bowman-Darby Company. Judgment for defendant, and plaintiff brings error.</p>

Error from Gounty Court, Greer Oountyj Jarret Todd, Judge. Action by T. A! Killian against Elsea Bros. Judgment for plaintiff in a justice court. Demurrer to plaintiff’s petition was overruled in tbe county court on appeal, and defendants bring error.

<p> Error from District Court, Okmulgee Gounty; W. L. Barrmm, Judge-. </p> <p>Action between the McDonald Coal Company and the Equitable Powder Manufacturing Company. From the judgment, the Coal Company brings error.</p>

<p> Error from District Court, Woockvanl Countyj B. H. Loofbourrow, Judge. </p> <p>Action by the Western Exchange Bank against C. C. Coleman and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Washington County; B. E. Hudson, Judge. </p> <p>Action by Alice M. Blunt against the Dewey Portland Cement Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Record—Case-Made. The filing of a case-made before the same is settled and signed by the trial judge -and attested by the clerk is a mere nullity, not being authorized by law; and, where a case-made is not filed in the office of the clerk of the trial court after the same is settled and signed by the trial judge, the same cannot be considered in this court on appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Muskogee County; R. C. Allen, J-udge. </p> <p>Action by Della Eogers against Eobert H. Eogers. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Superior Court, Muslcogee County; Farrar L. 'McCain, Judge. '</p> <p>Action by LI. C. Ewers against John B. Kilgore. Judgment for defendant, and plaintiff brings error.</p>

<p>1. JUDGMENT — Collateral Attack — Service—Recitals. The judgment or decree of a domestic court of general jurisdiction reciting that the defendant was duly served with summons for more than 41 days prior to the date of the- trial by publication of the warning order as required by law is conclusive on collateral attack, and cannot be contradicted by extrinsic proof.</p> <p>2. APPEAL AND ERROR — Verdict—Evidence. The evidence in support of the verdict of a jury on appeal in this court is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected; and where all of the evidence supporting a verdict, taken together and given all of the presumptions and deductions of which it is reasonably susceptible, is sufficient, and the case is submitted to the jury on instructions unexeepted to, then this court will not go behind the verdict and set it aside, on the ground that the countervailing evidence offered, had it been accepted, would have justified a different one.</p> <p>3. WITNESSES — 'Contradictory Statements — Admissibility. The ruling admitting evidence over objection examined, and held not erroneous.</p> <p>('Syllabus by the Court.)</p> <p>Williams, J., dissenting.</p>

<p>TRIAL — Directing Verdict- Syllabus same as syllabus paragraphs 1 and 2, Hussey v. Blaylock, 21 Okla. 220, 95 Pao. 773, 17 L. R. A. (N. S.) 622.</p> <p>('Syllabus by the Court.)</p>

<p>Error from County Court, Grady County; N. M. Williams, Judge.</p> <p>Action by W. 1C. King against J. O. Early. Judgment for plaintiff, and defendant brings error.</p>

<p>INDIANS — Exemption—Property Subject — Indian Allotment. The Act of Congress of June 28, 1906, c. 35Y2, 34 St. at L. 539, entitled “An act for the division of the lands and funds of the Osage Indians in Oklahoma Territory, and for other purposes,” being a complete and special act, and containing no provision for the exemption of moneys borrowed and secured by mortgage on the surplus lands of an allottee of the said tribe, executed after the issuance of the certificate of competency provided for therein, the same are not exempt from the payment of a debt of the allottee, although contracted prior to the issuance of patent.</p> <p>('Syllabus by the Court.)</p>

<p>CARRIERS — Delay in Freight — Damages. In an action against a common carrier for negligent delay in the carriage and delivery of machinery intended for use, the proper measure of damages in the absence of special notice is the usable or rentable value of the machinery during the period of delay, together with such reasonable expenses as may be incurred by plaintiff in searching for, recovering, or in endeavoring to secure delivery.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal fro'm District Court, Beaver County; B. II. Loofbourrow, Judge. </p> <p>Action, by Seward K. Lowe against Alexander J. Dickson. Decree for plaintiff, and defendant appeals.</p>

<p>1. NUISANCE — “Public Nuisance” — Definition. By section 2461, Comp. Laws 1909 (Rev. Laws 1910, sec. 2515), a public nuisance is a crime against the order and economy of the state, and consists in unlawfully doing any act or omitting to perform any duty required by the public good, which act or omission either (1) annoys or injures the comfort, repose, health, or safety of any considerable number of persons; or (2) offends public decency; or (3) in any way renders life or the use of property uncomfortable.</p> <p>2. SAME. By section 2465, Comp. Laws 1909 (Rev. Laws 1910, sec. 2517), the maintenance of a public nuisance is made a misdemeanor, and punishable as such.</p> <p>3. SAME — Turf Exchange. Keeping- a turf exchange, where persons daily congregate for the purpose of making bets and wagers on horse races run in other states or countries, is under our statute a public nuisance.</p> <p>4. SAME — Injunction. Section 5771, Comp. Laws 1909 (Rev. Laws 1910, sec. 4SS1), provides that an injunction may be granted to enjoin and suppress the keeping and maintaining of a common nuisance, and this remedy is available, notwithstanding the criminal laws of the state, to which the keepers of such places are also answerable, have not first been resorted to.</p> <p>('Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Assignment of Error — Necessity, It is the well-settled rule that although errors are saved in the trial court, unless they are assigned in the petition in error, and also assigned in the brief and separately set forth and argued, they will be deemed to have been waived and will not be considered on appeal.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — School Warrants — Validity — Seal. It is not required that warrants issued by a school board shall bear a seal; it is sufficient that they be signed by the president and countersigned by the clerk of the board.</p> <p>3. MANDAMUS — Grounds—Registration of School Warrants. Where a claim is allowed by a school board of a city and a warrant is drawn under an order of the board in conformity with section 4, c. 80 (Sess. Laws 1910-11), it is the duty of the treasurer of the board to register such warrant when presented to him for that purpose, if the warrants theretofore drawn upon the fund upon which the warrant presented is drawn, together with the warrant presented, do not exceed the estimate of expenses for that fund approved by the excise board for the current fiscal year.- In the registering of said warrant as required by section 5, c. 80 (Sess. Laws 1910-11), the treasurer exercises no discretion in the allowance or disallowance of a claim, but performs a plain 'ministerial duty, which he may be compelled by mandamus to perform .upon his refusal to do so.</p> <p>(Syllabus by the Court.)</p>

Error from County Court, Jefferson County; B. T. Brice, Judge. Action by the Simmons-Burk Clothing Company against H. I. Gaskin. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss.

Error from, County Court, Jefferson County; B. T. Price, Judge. Action by the Cleveland Woolen Mills against H. I. Gas-kin. Judgment for plaintiff, and defendant brings error, and plaintiff moves to dismiss.

<p>RAILROADS — Laborer's Liens — Railroad Right of Way. Under section 6166, Comp. Laws 1909 (Rev. Laws 1910, sec. 3868), laborers who perform labor upon the roadbed, right of way, and tracks of a railway company are entitled to a lien upon its roadbed, buildings, and equipments, income, franchises, and all other appurtenances to enforce payment therefor.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by Jblrn Wallace and another, etc., against the Kansas City Southern Railway Company. Judgment for plaintiffs, and defendant brings error.

<p>1. REPLEVIN — Damages Recoverable by Defendant — Animals Dis-trained. Where animals are taken damage feasant land are replevied by the owner, the defendant in that action may recover the damages which he has suffered by reason of the trespass, and a separate action is not necessary.</p> <p>2. SAME. C. and C. distrained certain stock of B. taken while trespassing upon their lands; B. brought action of replevin to recover the distrained stock held by C. and C. under a lien claim for the damages inflicted. On a trial of the replevin action the court allowed, the defendants under the pleadings to recover the amount of their damages and sustained a lien on the stock for the amount thereof. Held, not error, and that each of the defendants could recover, in the action of replevin, his separate damages.</p> <p>3. ANIMALS — Damages for Trespass — Right of Recovery. A party can recover damages done by trespassing cattle only when his land is inclosed by a lawful fence and which is broken through or over by the trespassing cattle, and it was prejudicial error for the court to instruct the jury in effect that it made no difference whether the fence breached was lawful or unlawful if the cattle were breachy and known to be so by the owner.</p> <p>4. SAME — “Lawful Fence.” In territory where stock is permitted to run at large the owner of cattle is not liable for damages done to crops of another unless the crops are inclosed by a lawful fence as required by section 188, Comp. Laws 1909 (Rev. Laws 1910, sec. 172), and such fence is lawful when it answers the requirements of section 188, Comp. Laws 1909 (Rev. Laws 1910, sec. 172), at the place where the same was breached by the cattle.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District 'Court, Osage Countyj B. K. Hudson, Judge.</p> <p>Action by Sallie Hooper against J. A. Hunter, Treasurer of Osage County. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Jackson >County; J. T. Johnson, Judge. </p> <p>Action by the Wichita Falls & Northwestern Railway Company against Charles Mnnsell. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Review—Findings of Fact — Sufficiency of Evidence. Where there is no evidence reasonably tending to support the findings of the trial court upon any issue of fact, such finding cannot be permitted to stand on appeal.</p> <p>2. SAME — Change of Theory. Where a party tries his case in the trial court upon one theory, he cannot in this court change-front and try to prevail upon theories of fact and of law applicable thereto not presented to the trial court.</p> <p>(Syllabus by the Court.)</p>

<p>PROHIBITION — Abstract Questions — 'Consideration. Abstract or hypothetical questions, disconnected from the' granting tof any actual relief, and from the determination of which no practical relief can follow, will not be considered by this court.</p> <p>('Syllabus by the Court.)</p>

<p>Error from County Court, Marshall County; J. W. Walker, Judge.</p> <p>Action by the Durant National Bank against J. H. Carroll. Judgment for plaintiff, and defendant brings error.</p>

Action by G. W. Ladd against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error, and the clerk of the Supreme Court issues execution for costs of a former appeal. On motion to quash execution.

<p> Error from, Superior Gourt, Muskogee County; Farrwr L. McCain, Judge. </p> <p>Action by John L. Brooks against E. Tyner and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. PLEADING — Judgment on the Pleadings. Where the petition states facts sufficient to constitute a cause of action and, aside from the general denial interposed, the answer admits facts sufficient to entitle plaintiff to recover, a judgment for plaintiff on the pleadings is proper.</p> <p>2. ADVERSE POSSESSION — Entry Under Owner — Knowledge of Hostility by Owner. Where the entry of defendant upon land is permissive and in privity with the title of the owner of the possessory right thereto and that of his grantee, in order to enable defendant to avail himself of the statute of limitations he must plead such specific acts of disloyalty to the title or acts of dominion giving adverse character to his possession as will preclude all want of knowledge thereof on the part of the owner. It is not sufficient that the defendant set forth his mere mental intention to hold adversely, or the conclusions of law that since a certain time his possession was “lawful, hostile under claim of- right, actual, exclusive, and continuous.”</p> <p>3. PUBLIC LANDS — Town-Site Commission — Issue of Patent. Answer and cross-petition examined, and held that the same fails to state facts sufficient to charge the, town-site commission with having issued patent to the lot in controversy to the wrong person as a .result of an erroneous view of the law or through gross and fraudulent mistake of facts.</p> <p>4. PLEADING — Motions to Strike — Redundancy. Where the answer and cross-petition states facts sufficient to warrant a recovery of exemplary damages, they need not he claimed by name and as such, but may be recovered under a claim for damages generally, and where, in the ad damnum, they are claimed generally and in a sum certain, and exemplary damages, as such, in a sum certain are also claimed, a motion to strike the latter item was properly sustained under Comp. Laws 1909, sec. 5659 (Rev. Laws 1910, sec. 4YY0).</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Juliza Wagester, doing business as Wagester Sisters, against the Oklahoma Fire Insurance Company. From a judgment for plaintiff, defendant brings error.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by Lonie Cobb and others against ‘ George Alberti, Jr., and others, as members of the board of county commissioners. From a judgment for defendants, plaintiffs bring error.

<p>Error from Superior Court, Logan County; J. M. Sandlin, Judge.</p> <p>Action by John A. Gooch against Polina B. Gooch and another. Judgment ior defendants, and plaintiff: brings error.</p>

<p>Appeal from. County Court> Le Flore pountyj P. C. Bolg&r, Judge.</p> <p>Action "by W. H. Green against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from County Court,, Creek County; Josiah G. Dmis, Judge.</p> <p>Action by M. Hull against the Continental Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. FORCIBLE ENTRY AND DETAINER — Cross-Petition—Construction- In an action of ejectment, where defendant hy cross-petition alleged that plaintiff is unlawfully in possession of the land described in plaintiff’s petition, and that defendant owns a lease thereon that entitles him to possession thereof, the cross-petition states a cause of action in ejectment, and not one of forcible entry and detainer.</p> <p>2. EJECTMENT — Right of Action. Under the Code, action of ejectment lies to recover lands held under a lease for a term of years.</p> <p>3. SET-OFF AND COUNTERCLAIM — What Constitutes — Ejectment — “Counterclaim." Where plaintiff files a petition in ejectment, and defendant in his answer alleges that he has a lease upon the premises in controversy for a term of years, and that plaintiff is in the unlawful possession of the premises, and he unlawfully withholds same from the defendant and prays judgment for possession and for damages, that part of his answer claiming interest in the land and asking affirmative relief is a counterclaim.</p> <p>4. DISMISSAL AND NONSUIT — Dismissal by Plaintiff — Subsequent Trial — Right. In such an action, when the plaintiff dismisses his cause of action, the defendant has a right to proceed to the trial of his counterclaim for the purpose of determining his interest in the land as against the plaintiff, his right to possession thereof, and to recover damages.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court,' Pittsburg County; P. D. Brewer, Judge. Action by F. A. Wadleigh and others against the Home Insurance Company and others. Judgmént for defendants, and plaintiffs bring error.

<p> Error from District Court, Muskogee County; John H. King, Judge. </p> <p>Action by Mary -Coleman against Prince Coleman, a minor, Sam MeNac, Charles E. Bunyan, and others. From the-judgment, McNac and Kunyan bring error.</p>

Error from Distñct Court, Wagoner County; J. \H. King, Judge. Action by the Midland Valley Railroad Company for writ of mandamus against W. L. Gilcrease, Justice of the Peace. Judgment for defendant, and plaintiff .brings error.

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

(Syllabus by the Court.) Error from District Court, Choctaw -County; Summers Hardy, Judge. Action by the Smith-Mauer Bros, against J. W. Mjilain ancl others. Judgment for plaintiffs, and defendants bring error.

<p>1. INDIANS — Descent and Distribution — Courts—Approval of Sale. The county court of the county of which a deceased allottee of the Five Civilized Tribes was a resident at the time of his death is authorized, by section 9 of the act of Congress of May 27, 1908 (35 St. at L. 315, c. 199), to approve conveyances of any interest of any fullblood Indian heir to or in lands inherited from such deceased allottee, whether a regular proceeding for the settlement of the estate of such decedent has been instituted or not.</p> <p>2. SAME — Evidence—Illegitimacy. The, census card i sued by the Dawes Commission showed L. T., a member of the Five Civilized Tribes, to be the father of S. T., a deceased allottee. Held, that evidence tending to establish that S. T. was an illegitimate child, introduced for the purpose of changing the line of descent from the putative father to the mother, was competent.</p> <p>(Syllabus by the Court.)</p>

<p>Appeal from >County Court, Pawnee County; Fred 8. Liscum, Judge.</p> <p>Action between D. D. Mickleson and D. B. Layton. From a judgment in the trial court, D. D. Mickleson brings error.</p>

Error from District Court, Grant County; Wm. M. Bótales, Judge. Action between George H. Hastings and others and T. F. DonU'ell, as administrator. From the judgment, Hastings and other bring error.

A final order was made by the Corporation Commission regulating the storage charges to be made by the Midland Valley Eailroad Company and others, and the railroad companies appeal.

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Application by the State, on the relation of George A. Matlack, for writ of mandamus against the city of Oklahoma City. Judgment for defendant, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Amicus Curiae — Dismissal. An appeal will be dismissed by this court on motion of amici curiae, where it appears that the judgment appealed from is based upon a fictitious controversy, made in a suit between parties, brought for the purpose of obtaining a decision of the court upon questions involved; there being no real controversy between the parties.</p> <p>2. SAME — Review—'Fictitious Issues. This court will not take cognizance of an appeal in an action, where it appears the action is based upon fictitious issues.</p> <p>3. SAME — Motion to Dismiss — Supporting Affidavits. Affidavits of third parties will be heard in this court in support of a motion to dismiss appeal on the ground that the issues in the case are fictitious, and that there is no real controversy existing between the parties to the- suit.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Review—'Consent Judgment. A case having beén tried to the court without the intervention of a jury and the finding upon which the judgment was rendered being made by the consent of all parties, the judgment being rendered according to such finding, there is nothing for this court to review, and the proceeding in error will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Action by the State of Oklahoma, on the relation of Sabrina B. Strong and others, for writ of prohibition against the Superior Court of Pottawatomie County and George C. Abernathy, Judge thereof.'

Error from District Court, Kay Countyj W. M. Bowles, Judge. Action by A. O. Coyle and another against the Board of County Commissioners of Kay County and others. Judgment for defendants, and plaintiffs bring error.

<p>INDIANS — Alienation of Allotment — Validity. A deed made by a minor Cherokee freedman, purporting to convey her surplus allotment prior to the removal of restrictions therefrom, is absolutely void.</p> <p>(Syllabus by the Court.)</p>

<p> Error from. District Court, Pontotoc County; Summers Hardy, Judge. </p> <p>Action by Elias Roberts against Gabriel Underwood and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by John D. Kiefer against Ella Blaekwelder and another. A charge of commission on a judicial sale, included in the bill of cost filed by John W. Berry, sheriff, was disallowed, and he brings error.

<p>1. CANCELLATION OF INSTRUMENTS — Grounds—Fraud. A court of equity has jurisdiction to decree the rescission of an executed contract for the - sale of lands and the cancellation of a note and mortgage given in payment and security therefor on the ground of fraudulent misrepresentation or concealment of facts relied upon by the grantee respecting the title.</p> <p>2. FRAUD — “Actual Fraud.” Actual fraud in .the law consists in the positive assertion in a manner not warranted by the infor. mation of the person making it of that which is not true, al. though he may believe it to be true.</p> <p>3. APPEAL AND ERROR — Pleading—Ground for Reversal — Amendment. Amendments to pleadings are largely within the discre. tion of the trial court, and, to. authorize a reversal of a judg. ment because. an amendment was not allowed, there must be such a showing as produces a reasonable conviction that there was an abuse of judicial discretion.</p> <p>(Syllabus by the Court.)</p>

<p>1. DIVORCE — Res Judicata. A decree in an action of divorce between the same parties for the ame cause of action precludes a re-examination of the same facts on the same charge in a subsequent case.</p> <p>2. SAME — Pleading and Proof — Validity of Decree. Where the petition states two separate causes of action for divorce, to wit, (1) extreme cruelty and (2) gross neglect of duty, and the court finds that both grounds are sustained by the plaintiff’s evidence, although the plea of res adjudicata should be sustained as to the former ground, the finding of the court as to the latter ground is sufficient to sustain the decree awarding the divorce.</p> <p>3. SAME — Grounds—Nonsupport—“Gross Neglect of Duty.,” A substantial failure of a husband to provide suitably for his wife’s support when he is able to do so is gross neglect of duty, entitling the wife to divorce.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Carter County; 8. Ii. Russell, Judge. </p> <p>Aetiom by the First National Bank of Ardmore against Walter Colbert.- Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by J. B. Sparks, administrator of the estate of Edward G. Owen, against the Great Western Life Insurance Company. Judgment for plaintiff, and defendant brings error.

An order was entered by the Corporation Commission requiring the Missouri, Kansas & Texas Eailway Company and’ others to build a joint passenger depot within the City of Durant, and the company named and another appeal.

<p> Error from County Court, Cherohee County; J. T. Paries, Judge. </p> <p>Action by W. I. Allen against J. A. Gates. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Pottawatomie County; J. H. Woods, Special Judge. </p> <p>Action by M. A. Rooney against W. A. McPherson. Judgment for defendant, and plaintiff brings error.</p>

Complaint was made by the State of Oklahoma and others before the Corporation Commission against the Pioneer Telephone & Telegraph Company, and from -an order of the Commission the company appeals.

Error from District Court, Carter County; Stilwell H. Russell, Judge. Action between Frank Eobison, administrator of the estate of Joe F. Eobison, deceased, and J. S. Mullen and others. From an order overruling defendants in error’s motion to dismiss, upon petition for rehearing same is reconsidered and the appeal dismissed.

<p>Error from District Court, Pottawatomie County; Boy Hoffman, Judge.</p> <p>Action between C. J. Patterson and S. C. Foreman. From a judgment for the latter, the former brings error.</p>

<p>NEW TRIAL — Denial—Motion to Vacate — Refusal. Where, after the expiration of the term, a motion is made to set aside an order overruling a motion for a new trial on the ground of unavoidable casualty, which does not substantially comply with the provisions of section 6096. Comp. Laws 1909 (Rev. Laws 1910, sec. 5269), held that the trial court did not err in refusing to vacate said order overruling the motion for a new trial.</p> <p>(Syllabus- by the Court..)</p>

<p>NEGLIGENCE — Contributory Negligence — Refusal of Instructions. In an action for damages on account of an alleged negligent act of the defendant, it is not error for the court to refuse to charge the jury that the plaintiff may recover, notwithstanding his contributory negligence, if the defendant, by the use of ordinary' care, ought to have known that plaintiff was about to put himself into the dangerous position wherein he was injured.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by Thomas J. Day against K. H. London and others. Judgment for plaintiff, ■ and defendants bring error.</p>

<p> Error from District Court, Dry an County; Summers Hardy, Judge. </p> <p>•Action by the Oklahoma Presbyterian College for Girls and another against the National Surety Company and another. Judgment for plaintiffs, and defendant company brings error.</p>

<p>CLERKS OF COURTS — Compensation—Modification. It was the purpose of the Legislature by the enactment of section 15a, c. 69, Sess. Laws 1910, to fix the maximum amount which may he allowed the clerk of the county court as full compensation for his services and to authorize the board of county commissioners in the exercise of their discretion to allow a less amount whenever in their judgment it is proper to do so.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Action by Samuel Crocker and others against G-. H. Carrico and others, constituting the Board of County Commissioners and the County Treasurer of Oklahoma County. From a judgment for plaintiffs, defendants bring error.

<p>APPEAL AND ERROR — Petition in Error — Time of Filing — Jurisdiction. Where more than six months 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>

Error from Superior Court, Muskogee County Farrar L. McCain, Judge. Action by J. T. Trezevant and others against Ira B.-Kirkland, and others. Judment for plaintiffs, and defendants bring error.

<p>STATES — Officers—Appointment to Fill Vacancy. .Section 13, art. 6, of the Constitution, and section 4798, Comp. Laws 1909 (Rev. Laws 1910, sec. 4278), are the only acts in force in this state which provide for filling vacancies in office when any such office “shall become vacant.” By virtue of said sections, when any state office shall become vacant, it is the duty of the Governor “to appoint a person to fill such vacancy who, (if the office is one which the law requires to be filled by appointment), shall continue in office until a successor shall have been duly * ' * * appointed and qualified according to law.” Said sections do not authorize or require such an appointment to be “by and with the advice and consent of the Senate.”</p> <p>(Syllabus by the Court.)</p>

<p> Error from District •Court, Garvin County; R. McMillan, Judge. </p> <p>Action by A. D. Coon against the Western Reciprocal Underwriters’ Exchange. Judgment for plaintiff, and defendant brings .error.</p> <p>Affirmed.</p>

<p>APPEAL AND EiRROR — Affirmance—Insufficient Brief. Dismissed for failure to comply with rule 25 of this court (20. Okla. xii, 95 Pac. viii).</p> <p>(Syllabus by the Court.)</p>

<p>COURTS — Adjournment by Sheriff — Repeal of Statutes. Comp. Laws 1909, sec. 6255 (Rev. Laws 1910, sec. '5338), provides: “If the judge of a court fail to attend at the time and place appointed for holding his court, the sheriff shall have power to adjourn the court, from day to day, until the judge attend. * * * ”</p> <p>Act of March 25, 1910 (Sess. Laws 1910, c. 102), provides: “If the judge of any district court fail to attend at the time and place appointed for convening the regular term of the district court, the sheriff of the county shall have power to adjourn the court, from day to day, until the judge, or the judge assigned, appear. * * *”</p> <p>At the time and place appointed for holding a special term of the district court, the judge failing to attend, the sheriff adjourned the court, from day to day, until the judge attended, pursuant to section 6255 (5338), supra. Held, that the act repealed the section by implication, and curtailed the power of the sheriff, and confined it to adjourning a regular term from day to day, and that the act of the sheriff in adjourning the special term was coram non judice.</p> <p>(Syllabus by the Court.)</p> <p>Kane, J., dissenting.</p>

Error from District Court, Logan County; A. H. Huston, Judge. Action by J. F. Shultz against Fred W. Kitterbusch, county treasurer, and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Caddo County; Frank M. Bailey, Judge. </p> <p>Action by Henry Bombeck against Elias M. Wilson and others. From, the judgment, Wilson brings error.</p>

<p> Error from Superior Court, Oklahoma County; A. N. Munden, Judge. </p> <p>Action by James Pribyl against the Cnrtis & Gartside Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Muskogee- County; Farrar L. MoCcdn, Judge.. </p> <p>Action by W. G-. Robertson and Lewis A. Kean against W. A. Maddin. Linda’ Mannel was made party plaintiff. Judgment for plaintiffs, and defendant W. A. Maddin brings error.</p>

<p>APPEAL AND ERROR — Case-Made- A case-made, having been served and settled within due time, without being filed with the clerk of the trial court, was attached to the petition in error, and filed in this court. The plaintiff in error having been permitted by this court to withdraw- the case-made preliminary to filing it in the lower court, the same was filed in said court, but after the time for commencing the proceeding in error in this court had expired. Held, that the case-made is a nullity, and cannot be considered in this proceeding in error as pre,¿ senting any question for review. Following Ft. Smith & Western R. Co. v. McKee, ante, 132 Pac. 497; Brooks et al. v. United Mine Workers of America et al., 36 Okla. 109, 128 Pac. 236.</p> <p>(Syllabus by the Court.)</p>

<p>TAXATION — Equalization—¡Remedies- The syllabus in Williams, County Clerk, v. Garfield Exchange Bank, post, 134 Pac. 863, is made the syllabus in this case.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McClain County; B. McMillan, Judge. </p> <p>Action by E. W. Gallamore against W. PI. P. Trudgeon and others. Judgment for plaintiff, and motion to quash execution. Demurrer to motion sustained, and defendants bring error.</p>

<p> Error from District Court, Garfield County; J. W. Steen, Judge. </p> <p>Bill by the Garfield Exchange Bank of Enid against Ira Williams, County Clerk of Garfield County. Judgment for plaintiff, and defendant brings error.</p>

<p>MUNICIPAL CORPORATIONS — 'Sewer Warrants — Rights of Holder. S. is the holder and owner of certain sewer warrants issued pursuant to section 990, Comp. Laws 1909 (Rev. Laws 1910, sec. 469). The mayor and councilmen for each year made “á levy on each lot or piece of ground, for a sufficient sum in addition to other taxes, to discharge the maturing installments” on each lot or piece of ground, with interest on the unpaid installments for such year; such taxes being collected by the county treasurer. The holder of such warrants, on presentation of the same, claimed the penalty collected on such- warrants, on account of the failure to pay the same as they matured.. Held, that S., the holder of said warrants, was not entitled to said penalty.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Service of Summons- A petition in error was filed on the last day of the ■ statutory period for commencing a proceeding in error,, and on the same date, a summons in error was issued, but service thereof was not had within 60 days after the issuance of the same. Held, that the proceeding was not commenced within the period required by the statute, and that the same should he dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Abstract Cases. Abstract or hypothetical oases, disconnected ■ from the granting- of actual relief, or from the determination of which no practical result can follow, will not be determined by this court.</p> <p>(Syllabus by the Court)</p>

Proceedings before the Corporation Commission by the State and another against the Pioneer Telephone & Telegraph Company. From an order of the commission, the latter appeals.

<p>1. RAILROAIDS — Injury to Stock —Petitioni—Failure to Fence Where the plaintiff, in an action against a railway company for damages for killing stock, relies upon the violation of the fence laws of the state by the railway company, a section of which (section 1392, Comp. Laws 1909 [Rev. Laws 1910, sec. 1438]), provides in effect that the railroad company shall be liable for all animals killed by reason of its failure to construct and maintain a legal fence, he must negative in his petition the exceptions contained in the enacting clause of section 1389 (1435) of the statute, which provides: “It shall' be the duty of every person or corporation owning or operating any railroad in the state of Oklahoma to fence its road, except at public highways and station grounds, with a good and lawful fence.”</p> <p>2. SAME. But the foregoing rule is not so strict as to require that the exceptions shall be specifically negatived., It is sufficiently complied with if the facts alleged clearly negative the exceptions, although it is done by inference.</p> <p>3. SAME — Sufficiency. Petition examined and held that each paragraph thereof states facts sufficient to constitute a cause of action.</p> <p>4. SAME — Sufficiency of Evidenpe. Evidence examined and held sufficient to sustain the verdict of the jury.</p> <p>5. TRIAL — Verdict — Findings on Separate Counts. Upon the whole record the court is satisfied that the court below committed no error which would deprive the defendant of any of its substantial rights.</p> <p>• 6. APPEAL AND ERROR — Harmless Erroi — Pleadings, The court, in every stage of action, must disregard any error or defect in the pleadings or proceedings which, does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Ohmulgee Co'untyj Geo. A. Johns, Judge. </p> <p>Action by S. D. Cahill and others against the Pine Creek Oil Company and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>Application for writ of habeas corpus by Fay Piatt.</p>

<p> Error from District Dowt, Muskogee County; John H. King, Judge. </p> <p>Action by Ivolue B. West against tbe Missouri, Kansas & Texas Eailway Company. Judgment for plaintiff, and defendant appeals. ,</p>

<p> Appeal from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Sidney C. Chappie against Samuel E. Gidney and others, and on motion J. C. Scully was made a party plaintiff. Judgment for defendants, and plaintiffs appeal.</p>

<p>1. ELECTIONS — Constitutional ¡Law- — Qualifications of Voters— Control by State. Const, sec. 4a, of article 3 (section 46, Williams’ Ann. Const. Okla.) of the Constitution is not repugnant to the fourteenth amendment to the federal Constitution.</p> <p>(a) The whole power of determining who shall exercise thet elective franchise in the states, whether in respect to the-election of state or national officers, is with the states themselves, and with each state in reference to its own citizens, so-long as the states do not deny or abridge such right ‘‘on account of race) color, or previous condition of servitude.”</p> <p>2„ SAIVIE — Right of Suffrage — Constitutional Guaranty. Const, sec. 4a, of article 3 (section 46, Williams’ Ann. Const. Okla.) of the-Constitution does not violate the provisions of. the fifteenth amendment to the federal Constitution.</p> <p>3. SAIVIE — Qualifications of Voters — Constitutional Provision- — Validity. Const, sec., 4a, of article 3 (section 46, Williams’ Ann. Const.. Okla.) of the .Constitution is not invalid on account of section 3 of the Enabling Act (Act June 16, 1906, c. 3335, 34 St. at L. 269), which provides that said Constitution shall “make no distinction in civil or political rights on account of race or color,” and that said state shall never enact any law restricting or abridging the right of suffrage “on account of race, color, or previous condition of servitude.,”</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGMENT — Motion to Vacate or Modify — Jurisdiction. It is a general rule of law that all the judgments, decrees, or other orders of the court, however conclusive in' their character, are under the control of the court which pronounces them, during the term at which they are rendered or entered of record, and may then be set aside, vacated or modified by the court.</p> <p>2. SAME. It is equally well established that after the term has ended all final orders or decrees of the court pass beyond its control unless steps ,be taken during the term, by motion or otherwise, to set aside, modify, or correct them.</p> <p>3. SAME — Jurisdiction to Entertain. A motion invoking the inherent equitable power of the superior - court to vacate one of its own judgments was filed during +he term at which such judgment was rendered but was not ruled upon until the succeeding term, when it was sustained and the judgment set aside. Held, that the discretionary power of the court was not lost by the continuance of the motion to the next term, and when susp tained at that term the action of the court in the premises was the same in legal effect as if the ruling had been made at the term at which the motion was filed.</p> <p>4. APPEAL AND ERROR — Judgment—Discretionary Ruling — Vacation of Judgment. Where it does not clearly appear that the court below abused its discretion, its action in relation to such motion will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Harmless Error. The court in every stage of action must disregard any error or defect in the pleadings which does not affect the substantial rights of the adverse party, and no judgment shall he reversed or affected by reason of such error or defect.. 'Section 4791, Rev. Laws 1910.</p> <p>(a) No judgment shall be set aside or new trial granted by any appellate court of this state in any case, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of -pleading or procedure, unless it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.</p> <p>2. TRIAL — Appeal and Error — Presentation for Review — Findings of Fact — Necessity. Upon the trial of a question of fact by the district court it is its duty, upon request, to find the material facts established by the evidence, so that exceptions may be taken to its views of the law involved in the trial. Error in this respect will not be presumed, but must be affirmatively shown. Section 5017, Rev. Laws 1910.</p> <p>3. APPEAL AND ERROR — Presentation Below — Request for Additional Findings. If, upon the trial of a question of fact by the district court, material facts have been proved, but not found, the court should be requested, before any motion for new trial, to modify the findings made to include the additional facts, or make further findings covering such facts, and only in the event of a refusal of the court to make the corrections, or to supply the omission, does ground for a new trial exist.</p> <p>4. SAME — Presumptions—Harmless Error- If, upon the trial of a question of fact by the district court, findings of fact are made, and such findings are not assailed in said court as incomplete and incomprehensive, it will be presumed by this court that they embrace all the facts of the controversy established by the proof.</p> <p>5. ELECiTJONS — Officers—Contest—Fraud—Effect. Fraud does not invalidate the legal votes cast, but, by destroying the presumption of the correctness of the returns, as a rule it makes it necessary for any person who claims any benefit from the votes to prove them, and, where no proof is offered, and the frauds are of such a character that the correct votes cannot be determined, the return of the precinct will be rejected. .</p> <p>6. SAME — Contest—Burden of Proof. As a rule, when the returns from a precinct are rejected on account of irregularities or fraud, the prima facie ease made by the returns is thus destroyed, and the burden of proof shifts to the party claiming by virtue of the returns, and it devolves upon him to establish aliunde that, notwithstanding the illegal voting proved, a sufficient number of legal ballots were, cast for him to insure his success.</p> <p>7. SAME — Fraudulent Returns — Determination of Vote- The returns may be rejected as fraudulent, and yet the true vote may be ascertained, and, where it can be ascertained, whether from the returns or from the evidence aliunde, the vote of the precinct is to be rejected.</p> <p>8. SAME — Judgment—Evidence. Where there is no evidence tending to show fraud on the part of the election officers, and the only allegation goes to illegal votes of certain precincts, although a certain number of illegal votes are found to have! been cast, in the findings by the trial court, the finding not disclosing for whom they were cast, yet taking the votes as admitted to have been received by the contestant and the contestee in certain precincts, and the votes as shown to have been received in the contested precincts by both the contestant and the contestee, and deducting all the illegal votes found to have been cast from the admitted votes of the contestant, and giving him the remainder of those oast for him, the contestant thus •being shown to have received a total majority of 33 votes over the contestee, held, that it was not error for the trial court to render judgment in favor of the contestant.</p> <p>(Syllabus by the Court.)</p>

<p>ELECTIONS — Contest—Burden of Proof. One who seeks to have an election declared void and set aside upon the ground that, by irregularities and fraudulent misconduct of the election officers, certain persons were prevented from registering and voting, must allege .and prove that such persons were qualified voters, and that, had they been permitted to register and cast their votes, the number thereof was so great that, if they had cast their votes for -the next highest candidate, the ^result of the election would have been changed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Tillman County; J. T. Johnson, Judge. Action by David Krauss and wife against James M. Potts and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from, Superior Court, Oklahoma Gounty; A. N. Munden, Judge. </p> <p>Action by J. -G. Street and another against Francis M-Tull. Judgment for plaintiffs for insufficient relief, and both-parties bring error.</p>

<p> Error from County Court, Osage County j C. T. Bennett, Judge. </p> <p>Action by John P. Lynn against the Midland' Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Oklahoma County; A. N. Hunden, Judge. </p> <p>Action by Anna B. Linnett against the Selden-Breek Construction Company 'and others. Judgment for plaintiff,, and defendants bring error.</p>

<p>Error from District Court, , Muskogee County; John H. King, Judge.</p> <p>Action by Lulu Walcott and others against J. C. Fast. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. NEGLIGENCE — “Actionable Negligence.” To constitute actionable negligence, where the wrong is not willful and intentional, three essential e'ements are necessary: (1) The existence of a duty on the part of the defendant to protect the plaintiff from injury; (2) failure of the defendant to perform that duty; and (3) injury to the plaintiff resulting from such failure.</p> <p>2. SAME — Trial—Submission of Issues — Conformity to Evidence— Evidence. Under section 6 of article 23 of the Constitution (section 355, Williams’ Ann. Const. Okla., the question of contributory negligence or assumption of risk in all cases is a ques-ti n of fact at all times to be left to the jury, but this provision does not relieve the party suing for damages for an alleged injury from the burden of proving that the injury was the proximate result of negligence on the part of the party sought to be charged.</p> <p>(a) Where there is no evidence reasonably tending to show that such party sought to be charged was guilty of negligence, it is error for the trial court to submit such issue to the jury.</p> <p>3. MASTER AND SERVANT — Injury to Servant — Negligence— Burden of Proof. As a rule the fact of an accident or injury to an employee in the course of his employment carries with it no presumption of negligence on the part of the employer.</p> <p>(a)That the injury or accident was the result of the negligence of the employer is an affirmative fact for such employee-to establish by the evidence.</p> <p>4. SAME — Duty of Master — Safe Appliances — Safe Place to Work— Assumption of Risk. A master is required to exercise proper care and diligence to provide his employee with a reasonably safe place in which to work, with reasonably safe material, tools,, and implements with which to work, with reasonably safe material upon which to work, and suitable and competent fellow servants..</p> <p>(a) When the master has so discharged these duties, at common law the servant assumes all the risks and hazards incident to the particular employment or to the performance of the particular work, including those risks and hazards resulting from the negligence and carelessness of his fellow servants.</p> <p>(b) In this state, the doctrine of assumption of risk as it existed at common law as to railroads, street railways, interurban railways, and mining operators has been modified; such employees not assuming the risk incident to the negligence of their fellow servants. Section 254, Williams’ Ann. Const. Okla.</p> <p>(c) A further modification in all cases whatsoever in this state exists in that the defense of assumption of risk and contributory negligence is in all cases a question of fact to be left to the jury for their determination.</p> <p>5. SAME — Assumption of Risk — Question for Jury. Where the master has omitted no duty as such and therefore is free from negligence, no liability attaches to him, as “every risk which an employment involves after a master has done everything that he is bound to do for the purpose of securing the safety of his servants is assumed as a matter of law by each of the servants.”</p> <p>(a) When the question is that the injury to the employee resulted from an assumed risk which @,n ordinarily prudent employer would not have exposed the servant to, thereby presenting a question of a breach of duty on the part of the master, and the defense being interposed that the employee, with the knowledge of such omission of duty, entered the employment of the master, expressly or impliedly assuming all the risks resulting from such omission of duty, such omission of duty on the part of the master not having been done in violation of a statute-the question as to whether the employee assumed the risk under-section 6, art. 23, of the Constitution (section 355, Williams’ Ann. Const. Okla.) is “a question of fact” to “be left to the jury for its determination.”</p> <p>(b) Where a master omits to perform a duty and such omission constituting a violation of the law, though the employee expressly or impliedly contracted to assume the risks resulting' from such violation, still the servant did not assume the risk of such injury, as a contract under such state of facts to assume such risk would be void as against public policy.</p> <p>6. NEGLIGENCE — Carriers—Pnoximate Cause — Actionable Negligence — Delay in Delivery of Goods. As a rule a party guilty of negligence or an omission of duty should be held responsible for all consequences which a prudent and experienced man, fully acquainted with all the circumstances which in fact exist, whether they 'could be ascertained by reasonable diligence or not, would have thought at the time of the negligent &ct as reasonably possible, to follow, if they had been suggested to his mind.</p> <p>(a) An agent of C. at L. advised D. that he could procure employment as a bridge carpenter from C. at a certain point, to wit, S. D. had had experience both as a bridge carpenter and ■section hand. D. shipped his trunk, containing his carpenter tools and carpenter credential certificate to S., expecting to there enter the employment of C. as a bridge carpenter. On reaching S., his trunk not having arrived, he engaged in the service of C., as a section hand, and whilst engaged in such work, in construction of ballast on such road, by a piece of ballast rock striking him in the eye, he was injured. Held, that the injury was not the proximate result of the failure of C. to promptly deliver D.’s trunk at S.</p> <p>7. MASTER AND SERVANT — Injury to Servant — Sufficiency of Evidence — Negligence. Evidence examined, and held not) to show any negligence on the part cf the railroad company.</p> <p>('Syllabus by the Court.)</p>

<p> Error frdm District Court, Delaware County; T. L. Brown, Judge. </p> <p>Action- by • T. • J. Williams against the Board of County Commissioners of' Delaware County.- Judgment for plaintiff, and .defendant brings error.</p>

<p>REGISTERS OF DEEDS — Compensation. 1 A register of deeds, who was inducted into office on November 16, 1907, was, by reason of sections 3008 ,and 3028, Wilson’s Rev. & Ann. St. .1903 (Rev. Laws 1910, sec. 3225), and by reason of Act of the Legislature approved April 8, 1908 (Sess. Laws, 1907-08, pi 165), entitled to receive .after July 1, 1908, for the remainder of his term where the population of his county) was shown by the census taken by the assessors in 1908 to be-more than 10,000 inhabiI .- tants,.and less than 15,000 inhabitants, a salary of $1,200 per year, and to retain 50 per .cent, of all fees collected by him in excess of the above salary.</p> <p>(Syllabus by the Court.)</p>

Appeal from the State Corporation Commission. Proceedings before the Corporation Commission by A. Leviek and othefs against the Atchison, Topeka & Santa Fe Railway Company. From an order of the Commission, the Railway Company appeals.

<p> Error from District Court, Atolca County; Robert M. Rainey, Judge. </p> <p>Application for writ of habeas corpus by Luther Jamison against A. W. Gilbert and Dilly Gilbert. Judgment for defendants, -and plaintiff brings error.</p> <p>This action is for writ of habeas corpus, brought in the-court below by Willie Green Jamison, an infant, acting by and through his father, against defendants in error, who are the-maternal grandparents of said infant, to determine the right to the custody and control of said child. There were -two hearings upon the petition in the court below. At the conclusion of the first hearing, the court refused to grant the writ, and awarded -the custody of the child to- defendants in error, who> had theretofore been in possession of him, but granted leave to the plaintiff in error to reopen • the case at a later time,, which w-as done. At the second hearing, the trial court found that when the -said Willie Green Jamison was a very small child, he was given by his -father, plaintiff in error, to- the-child’s grandparents on his mother’s side, 'defendants in error-;, and that since said time said child has been in the . custody and control of defendants in error; that they .have properly-'clothed and fed him, and given him good' -training; that after the plaintiff in error placed -the -child in possession of his-grandparents, he married a second time' and'' is now the .head of a. family and has living -with him a son, the brother-of the child in controversy, and two, children, the -fruits' of his second marriage; that during the • time the child was in the possession of his grandparents, .plaintiff -in error contributed practically nothing toward, its -support; -and he further found that defendants in error have in -all things looked after the best interests of the child, and that they- are in a better position to look after- his welfare-., than is plaintiff in error, his father. Upon these findings of ■ fact, the court made an order denying the writ and awarding’ the custody and care of the child to defendants in error. To reverse this order, this proceeding in eiro-r i-s prosecuted. - ■ . .</p>

Error from District Court, Logan County; S. H. Bussell, Assigned Judge. Action by George H. Dodson against Hannah Middleton and another. Judgment for defendants, and plaintiff brings error. There is but little, if any, controversy about the facts in this case.

<p> Error from, ■Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by the Waltham Piano Company against J. E. Wolcott. From a judgment for defendant,'-' jllaintiff brings error.</p>

' Error from District Court, Oklahoma County; John J. Carney, Judge. Action by W. H. Wlheeler & Co. against Frank J. Wykoff and others, constituting the State Board of Education. A temporary restraining order was granted in favor of plaintiff, and defendants bring error.

<p> Error from District ‘Court, Em; County; W. M. Bowles, Judge. </p> <p>Action by George A. Harris and another against Thomas Gvosdanovie. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Parties—Service of Case-Made. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of case-made must be had against all parties to the judgment before any question presented by the case-made can be reviewed by this court.</p> <p>2. PARTIES — Misjoinder — Demurrer. Under section 5629, Comp. Laws 1909 (Rev. Laws 1910, sec. 4740), misjoinder of parties defendant is not a ground for demurrer.</p> <p>3. LIMITATION OF ACTIONS — Demurrer. Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto, urged specially upon that ground, should be overruled.</p> <p>4. PLEADING — -Misjoinder of Causes —1 Waiver of Objections. Whenever the causes of action have been improperly joined, if no objection be taken thereto by demurrer, the defendant waives same.</p> <p>(Syllabus by the Court.)</p>

Action by the McAlester-Edwards Coal • Company and others against M. E. Trapp, State Auditor, and others. Judgment for defendants, and plaintiffs bring error. Motion to require plaintiffs in error to execute a supersedeas bond, and advance the case.

Action by the McAlester-EdwaTds Coal Company and others against M. E. Trapp, State Auditor, and others. Judgment for defendants, and plaintiffs bring error, and move to modify an order made by the Supreme Court.

<p>MUNICIPAL CORPORATIONS — Initiative and Referendum — Execution of Reserved Powers — Officers. The city of G. having framed a charter by virtue of sections 3a and 3-b (sections 329 and 330, Williams’ Ann. Const., Okla.) of article 18 of the Constitution of this state, said charter not providing for the manner of the exercise of the initiative and referendum powers reserved by the Constitution to the whole people of such city as to its municipal legislation or amendments to its charter for its own government, section 3388, Rev. Laws 1910, which provides that in such cases the duties required of the Governor and Secretary of State, relative to the manner of exercising the initiative and referendum powers reserved by the Constitution to the whole people of the state, as to state legislation, shall be performed as to such municipal legislation by the chief executive and the chief clerk, and the duties required of the Attorney General shall be performed by the attorney for such municipality, etc., applies to such city and is valid.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Oklahoma County j Edward Dewes Oldfield, Judge. Application for mandamus by J. W. Jobnston against A. L. Carrico and others. 1 Judgment for defendants, and plaintiff brings error.

<p> Error from District Court,, Alfalfa County; James W. Steen, Judge. </p> <p>Action by Jacob Wissert against John P. Miller. Judgment for plaintiff, and defendant brings error.</p>