Volume 40 — Oklahoma Reports

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by Mary J. Melson against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Brror from County Court, Oklahoma County; </p> <p> John -W. Hayson, Judge. </p> <p>Action by Isaac Lowenstein against George A. Todd. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Filing of Appeal — Dismissal. As the appeal was not filed in this court within the time prescribed by the statute, the motion to dismiss the same must be sustained.</p> <p>(Syllabus by the Court.)</p>

<p>Error from- District Court, Wagoner County;</p> <p>R. C. Allen, Judge.</p> <p>Action by W. B. Moss against W. T. Hunt. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL ARTE ERROR — Exception. Below — Waiver of Error. Failure to except to the overruling of a motion for a new trial is a 'waiver of error as to such ruling and all alleged errors of law occurring at the trial for which a new trial might be granted.</p> <p>(Syllabus by the Court.)</p>

<p> Urror from District Court, Ottawa County; </p> <p> Preston S. Davis, Judge. </p> <p>Action by Nathan Levy and others against R. H. Holton. Judgment for defendant on demurrer, and plaintiffs bring error.</p>

<p>Error from- Superior Court, Oklahoma County;</p> <p>E. D. Oldfield, Judge.</p> <p>Action by Charles N. Holmes against Isaac Lowenstein. Judgment for plaintiff, and defendant brings error.</p>

<p>MUNICIPAL CORPORATIONS-Services of Attorney — Implied Contract. Where an attorney was employed by the town council of an incorporated town of the Indian Territory, although without a formal ordinance or resolution, and thereafter with the knowledge of such council performed' the legal services for which the employment was made, and the town accepted and retained the benefits thereof, it is liable to him for the value thereof.</p> <p>(Syllabus by the Court.)</p>

<p>1. JUDGES — Disqualification—“Party.” In a proceeding in the county court by a guardian to invest the money of his ward pursuant to Comp. Laws 1909, sec. 5513 (Rev. Laws 1910, sec. 6569), held, construing Comp. Laws 1909, sec. 5139, that the guardian is a “party” thereto within the contemplation of said section, and that the judge of the county court, his brother-in-law, was disqualified to sit in said proceeding.</p> <p>2. SAME — Judge Pro Tempore. Comp. Laws 1909, sec. 2013 (Rev. Laws 1910, see. 5813), when construed with Constitution, art. 7, see. 12, provides for a judge pro tempore in a special proceeding.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Service of Case-Made — Extension of Time. Where the time granted by the trial court within which to make and serve a case-made has expired, said court has no power then to extend the time for making and serving the case-made.</p> <p>(Syllabus by the Court.)</p>

<p>INFANTS — Contracts — ‘ ‘Disaffirmance’ ’ — Commencement of Suit. Where, in the suit of a minor under eighteen years' of age by her guardian, the petition states that she had executed an oil and gas mining lease and certain deeds to defendant, and prays that her title to the land therein set forth be cleared, held, assuming the conveyances assailed to be voidable, that in virtue of Rev. Laws 1910, sec. 885, the same may be disaffirmed by the minor before her majority, that the bringing of the suit was a sufficient “disaffirmance,” and that a demurrer to her petition was properly overruled.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Courts Custer County; J. W. Lawter, Judge. Two actions, one by James C. Dean, the other by R. O. Dawson, both against the Clinton & Oklahoma Westerp Railway Company.' Judgment for plaintiffs, and defendant brings error.

<p> Error from County Court, Carter County; </p> <p> W. E. Freeman, Judge. </p> <p>Action by the Spaulding Manufacturing Company against G. W. Buckholtz and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Rogers County; </p> <p> T. L- Brown, Judge. </p> <p>Action by W. P. Farley and Heber Skinner, partners as' Farley & Skinner, against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiffs, and defendant appeals.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Nannie Cowart against the Parker-Washington Company and the city of Muskogee. Judgment for defendants, and plaintiff brings error.

Error from District Court, Oklahoma County; Wm. M. Bowles, Assigned Judge. Action by R. H. Drennan against Lena L. Eberle and John M. Eberle. From the judgment, defendants Eberle bring error, and defendant Oklahoma Brick Company files cross-petition in error.

<p>1. RAILROADS — Crossing Accident — Negligence' — Presumption of Public Road. Although, a railroad crossing may not be upon a publie highway, yet, if the track has been used by travelers as a public crossing for a long time with the knowledge of the company, and without objection, and the company has treated the same as a public crossing, it will be presumed to be such, and the railroad company will be bound to exercise ordinary care to prevent injury to persons using the same.</p> <p>2. SAME — Signals. Where a railroad company has established the practice of giving signals or keeping a flagman at a place frequently used as a crossing, and sueh practice is notorious, the traveler has the right, to expect that the„usual warning will be given, and the failure of the company to do so is a proper fact for the jury to consider in determining the question of the defendant’s negligence.</p> <p>3. SAME — Contributory Negligence — Question for Jury. By virtue of section 6, art. 23, Williams’ Ann. Const. Okla., the defense of contributory negligence shall in all cases be a question of fact, and shall at all times be left to the jury.</p> <p>(Syllabus by the Court.)</p> <p>Dunn, J., dissenting.</p>

<p> Error from County Court, Cleveland County; </p> <p> E. B. Swank, Judge. </p> <p>Action by Annie M. Sullivan against R. S. Bryant. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court,, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by W. E. Shives against Amelis Erohberg. Judgment for defendant, and plaintiff ■ brings error.</p>

Brror from County Court, Love County; R. A. Keller, Judge. Action by Annis Davis against Ben Howard and another. Judgment for defendants, and from an order granting a new trial they bring error.

<p>DIVORCE — Effect—Support of Child — Compensation of Belative. Eev. Laws 1910, sec. 4367, provides that the parent entitled to the custody of the child must give him support; and section 4376, that if a parent neglects to provide necessaries for his child "who is under his charge," a third person may supply them and recover the reasonable value thereof from the parent; and section 4377, that a parent is not bound to compensate the other parent or a relative for necessaries furnished his child without an agreement. Held, that where a divorce decree gave the custody of an infant child to the mother, her father, who voluntarily furnished necessaries to the child while in her custody, in the absence of an agreement, cannot recover compensation therefor from the father of the child.</p> <p>(Syllabus by thd Court.)</p>

<p>1. APPEAL AND ERROR — Forcible Entry and Detainer — Complaint —Sufficiency. Tlie complaint states a cause of action under section 5508, Rev. Laws 1910. Where there is evidence tending to support the same, this court will not weigh the testimony.</p> <p>2. LANDLORD AND TENANT — Tenancy—Term. A tenant in possession under a void or defective lease for a term of years creates * a tenancy at will, and, if periodical rent he paid, the tenancy becomes one from year to year. Tate v. Gaines, 23 Okla. 141, 105 Pae. 193, 26 L. R. A. (N. S.) 106; 24 Cyc. 1031.</p> <p>3. JUSTICES OF THE PEACE — Appeal—Trial De Novo. Williams’ Const. Okla. art. 7, sec. 14: "Until otherwise provided by law * * * -in all cases, civil and criminal, appealed from justices of the peace to the county court, there shall be a trial de novo on questions of both law and fact.”</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Verdict—Evidence. Where the evidence reasonably tends to support the verdict and there is no error in the charge to the jury, the judgment will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

<p>(Syllabus by the Court.)</p> <p> Error from County Court, Harmon County; </p> <p> C. W. King, Judge. </p> <p>Action by W. N. Adams against A. A. Moore. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kingfisher County; James B. Cullison,, Judge. Action by Julia A. Hale against Nathan T. Haile, executor of the estate of John R. Hale. Judgment for plaintiff, and defendant brings error. This cause originated in the county court of Kingfisher county. On March 29, 1911, defendant in error filed in that court in the probate proceeding of the estate of John R. Hale, deceased, her petition for an allowance from said estate.

<p> Error from District Court, Nowata-County; </p> <p> T. L. Brown, Judge. </p> <p>Action between the Wylie Manufacturing Company and the City of Wann. From the judgment the Wylie Manufacturing Company brings error.</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Remedy of Taxpayer-Discharge of Teacher — Injunction. At the instance of resident taxpayers of a school district, the powers of equity may not be invoked to enjoin the officials of the school district from discharging-a teacher employed by contract to teach a school for a specified time.</p> <p>2. INJUNCTION — Grounds—Remedy at Law — Schools and School Districts. The powers of equity may not be invoked by such teacher to enjoin the school board from discharging him before he had taught the school pursuant to said contract.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Johnston County; </p> <p> Nick Wolfe, Judge. </p> <p>Action by the Webb Queensware Company against A. Boyd. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Coal County; </p> <p> R. H. Wells, Judge. </p> <p>Action between the Security Insurance Company and A. J. Droke. From the judgment, the insurance company brings error.</p>

<p> Error from District Court, Tulsa County; </p> <p> L. M. Poe, Judge. </p> <p>■ Action by Carrie Ila Jacobson against the Tulsa Street Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. COURTS — Superior Courts — Statutory Provisions. Section 6 of an act of the Legislature approved Mareh 22, 1913, entitled “An act amending section 1 of article 7 of chapter 14 of Session Laws 1909, etc.” (Sess. Laws 1913, p. 123), applies to superior courts continued by said act until January, 1915, as well as to those courts continued indefinitely by said act.</p> <p>2. SAME — Transfer of Causes — Time for Piling Motion. Where a party in a civil action pending in any such superior court seeks by virtue of said statute to have the same removed to the district court, he must, by reason of section 1 of the act of the Legislature approved Mareh 22, 1911, entitled “An act amending section 10, article '7, chapter 14 of Session Laws of Oklahoma 1909, etc.” (Sess. Laws 1910-11, c. 121), file his motion for such transfer before the cause is set for trial in the superior court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Oklahoma County; </p> <p> Edward Dewes Oldfield, Judge. </p> <p>Action by James S. Collins against C. E. Shuler and Emma E. Shuler. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from County Court, Kiowa- County;</p> <p>J. W. Mansell, Judge.</p> <p>Action by the Rhome Milling Company against the Farmers’ & Merchants’ National Bank of Hobart. Judgment for defendant, and plaintiff brings error.</p>

APPEAL AND ERROR — Judgment—Evidence. Where the evidence reasonably tends to support the findings of the trial court, the judgment will not be disturbed. (Syllabus by the Court.) Error from District Court, Stephens County; Frank M. Bailey, Judge. Action by J. S. Mullin against Eli Brown and others. Judgment for defendants, and plaintiff brings error.

<p> Error 'from County Court, Jefferson County; </p> <p> G. M. Bond, Judge. </p> <p>Action by Isaac Roberts against Mrs. W. J. Wilkins and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from County Court, McClain County; </p> <p>C. G. Moore, Judge pro tern.</p> <p>Action between the Co-Op. Gin & Elevator Company and M. S. Asbury. From the judgment, the Company brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Service. The first section of the syllabus in Devault et al. v. Merchants’ Exch. Co., 22 Okla. 024, 98 Pae. 342, is made the syllabus of this ease.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Jackson County; </p> <p> Frank Mathews, Judge. </p> <p>Action by Eay Nelson, as administratrix of the estate of Gertrude Nelson, deceased, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; John J. Carney, J%idge. Application by the State, acting by and through its Governor, Secretary of State, and State Treasurer, to determine the existence, character, and amount of its outstanding indebtedness, and to issue bonds to refund the same, and certain citizens appear and file a protest against the issuance of the bonds. Judgment was entered approving the bond issue, and certain protestants bring error.

<p> Error from District Court, Bryan County; </p> <p> A. H. Ferguson, Judge. </p> <p>Action by Helen Bondies against William Bondies. Judgment for plaintiff,, and defendant brings error.</p>

<p>EVIDENCE — Ownership of Personalty — Competency of Witness. Ownership of personal property is ordinarily a simple fact, to which a witness, having requisite knowledge, can testify directly, and a question as to who is the owner of personal property involved in an action where such question involves a fact within the knowledge of a witness, and not an expression of opinion upon facts proven, is admissible.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Okmulgee County; Preston S. Davis, Judge. Action by S. D. Cahill and others against the Pine Creek Oil Company and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Kiowa County; </p> <p> J. W. Mansell, Judge. </p> <p>Action by the J. Rosenbaum Grain Company against J. H. Higgins. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Johnston County; </p> <p> Nick Wolfe, Judge. </p> <p>Action by Mildred Brown and others against W. M. Scott and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>H. MUNICIPAL CORPORATIONS — Officers—Eight to Compensation. A person acting in the capacity of a public officer of a municipality cannot recover compensation as such officer from such municipality on the ground of an implied contract to pay what his service is reasonably worth.</p> <p>3. SAME — Statutory Authority. A person acting in the capacity of a</p> <p>public officer of a municipality is entitled to only such compensation as may be given by some provision of law.</p> <p>(Syllabus by the Court.)</p>

<p>Original action in habeas corpus by Leroy E. Waugh. Petitioner discharged.</p>

<p> Error from District Court, Muskogee County; </p> <p> R. P. de Graffenried, Judge. </p>

<p>1. REVIEW OF EVIDENCE. Record examined, and held, that there is not sufficient evidence to sujóport a -judgment against Mollie Lawson.</p> <p>2. APPEAL AND ERROR — Harmless Error. All the other assignments of error presented relate' "to alleged defects' in the proceedings, and we are not at liberty to reverse the case upon such grounds, unless it appears that the errors complained of affect some substantial right of the adverse party. Mullen v. Thaxton, 24 Okla. 643, 104 Pac. 359. We have examined all the assignments of error presented by counsel for plaintiff in error, and are satisfied that none of them affect any sirbstantial right of the plaintiff in error, T. R. Lawson.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Brief—Dismissal. For failure to comply with rule 25 of this court (38 Okla. x, 95 Pac. viii), the appeal is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Cleveland County; </p> <p>R. McMillan„ Judge.</p> <p>Action by the Purcell Bridge & Transfer Company against George Hiñe. From the judgment, plaintiff brings error.</p>

<p>WEIGHTS AND MEASURES — Municipal Scales. A municipality with a population of more than 2,000 inhabitants, existing under a charter framed for its own government under sections 3a and 3b, art. 18 (sections 329 and 330, Williams’ Ann. Ed.), of the Constitution of this state, may install municipal scales, appoint a municipal weighmaster therefor, and place him in charge thereof, for the purpose of weighing cotton, grain, live stock, cotton seed, hay, coal, wood, broom, corn, and such other commodities as may be offered for sale and delivery in such city.</p> <p>(a) Such municipal weighmaster has a right to weigh on such municipal scales without interference from the county or public weigher.</p> <p>(b) The right of the municipal weighmaster to weigh such products in said municipality does not exclude the right of the public or' county weigher to weigh products in said city when offered to him for such purpose.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, McClain County; </p> <p> R. McMillan, Judge. ■ </p> <p>Action by W. E. Caldwell and others against J. B. Thurston, County Treasurer of McClain County. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. JUDGMENT — Rendition—Validity. All judgments, except where specially provided for by statute, must be rendered while the court is in session in the county where the ease is pending, and a judgment rendered by the judge in vacation of the court, and in another county, is void, and jurisdiction cannot be conferred by agreement.</p> <p>2. APPEAL AND ERROR — Decision Below — Evidence. This court will not disturb the verdict of a jury or decision of a court when there is evidence reasonably tending to support it; and, while there is a conflict in the evidence in this ease, there is sufficient to support the conclusion reached.</p> <p>3. CONDUCT OF TRIAL. The record examined, and held to contain no evidence of unfairness of the court prejudicial to the defendant on the trial of the case.</p> <p>4. JUDGMENT — Rendition—Correction. It being one of the duties of the court to render judgment in a ease at the end of the trial thereof, he máy and should, on finding that his judgment is for any reason void, render any other judgment warranted by the. law and evidence that will give the case a legal and final ending.</p> <p>(Syllabus by the Court.)</p>

Application by Robert H. Hirsh and Thomas E. Kirby for writ of prohibition to James S. Twyford, Special Judge of the Superior Court of Oklahoma County, and P: M. Sullivan.

<p> Error from District Court,, Oklahoma County; </p> <p> W. R. Taylor, Judge. </p> <p>Action by G. A. W. Kenyon against Willard Carver. Judgment for plaintiff, and defendant brings error.</p>

<p>_ Error from District -Court, McIntosh County;</p> <p> Preslic B. Cole, Judge. </p> <p>Action by V. E. Hill against Simpson Township. Judgment for plaintiff, and defendant brings error.</p>

<p>COURTS — Probate Courts — Appeal—Jurisdiction. Under the provisions of section 1820, art. 1, Bev. Laws 1910, and section 6, c. 27, Laws of 1907-08, an appeal lies to the district court from the county court in probate matters.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the State Corporation Commission. </p> <p>In the matter of the Intrastate Express Rates. Appeal from an order of the Corporation Commission.</p>

Error from County Court, Grady County; N. M. Williams, Judge. Action by Cox, Peery & Murray against the St. Louis & San Francisco Railroad Company for damages to a delayed shipment of' cattle. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, McIntosh County;. </p> <p> Preslie B. .Cole, Judge. </p> <p>Action by the First National Bank of Eufaula against Edna B. Francis and others. Judgment for plaintiff, and defendant Francis brings error.</p>

<p>EXECUTORS AND ADMINISTRATOBS — Real Property — Authority of Administrator — Bents. The laws of Arkansas in force in the Indian Territory prior to statehood confer power upon an administrator to control the lands of his intestate for the purpose only of paying his debts. If there are no debts, or if all claims which may become a charge against the estate have in fact been discharged, there is no room to contend that the statute still confers the right upon the administrator to sue for the recovery of rents for the use of the real estate of the decedent accruing subsequent to his death.</p> <p>(Syllabus by the Court.)</p>

<p>1. ATTACHMENT — Irregularity—Waiver of Objection. An agreement, after seizure of chattels attached, that the sheriff shall sell summarily and retain the proceeds, or place them in a designated depository to abide the' final judgment in said proceeding, precludes the defendant from insisting on a dissolution of the writ.</p> <p>2. APPEAL AND ERROR — Brief—Rulings on Evidence. The action of the lower court in the exclusion or admission of evidence will not be reviewed by this court, unless this evidence is set out in the brief of the plaintiff in error as required by rule 25 (38 Olda. x, 95 Pae. viii), although assigned as error by proper specifications of error therein.</p> <p>3. TRIAL — Demurrer to Evidence — Direction of Verdict. Where there is any substantial conflict in the evidence, neither shpuld a demurrer thereto nor a motion to direct a verdict be sustainéd.</p> <p>4. EXECUTORS.AND ADMINISTRATORS — Construction. A judgment rendered against Aubry Addington, administrator of the estate of Z. T. Addington, deceased, is not a’personal judgment, but a judgment against him in Ms trust or his official capacity, and binds only the estate of said intestate.</p> <p>5. APPEAL AND ERROR — Objection Below — Verdict. Where a verdict is not void, any objection going to a defect or irregularity which renders the verdict merely voidable will not be considered when raised for the first time in this court.</p> <p>6. LANDLORD AND TENANT — Rent—Remedies of Landlord. Under sections 3806 and 3807, Rev. Laws 1910, the landlord may elect to take his share of the crop, or, if such share has been appropriated or disposed of by the tenant, then the landlord may elect to enforce his lien for rent in the value of such share by attachment.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, lackson County; </p> <p> J. T. Johnson, Judge. </p> <p>Action by J. L. Roby against C. H. Smith and W. J. Grisham. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from County Court, Bilis County; </p> <p> A. L. Squire, Judge. </p> <p>Action by the Howard Mercantile Company against W. E. Moore. Judgment for plaintiff, and from an order granting a new trial plaintiff brings error.</p>

<p>1. TRIAL — Demurrer to Defendant’s Evidence. Whenever all the evidence and the reasonable and rational inferences and deductions therefrom in favor of the defendant, taken as true, will warrant a verdict in his favor, it is error for the court to sustain plaintiff’s demurrer to such evidence.</p> <p>2. TENANCY IN COMMON — Recovery of Land — Necessary Parties. One tenant in' common may maintain an aetion for the recovery of real property against a third person; but his recovery is limited to such interest in' the premises as he proves title in himself superior to that of defendants.</p> <p>(Syllabus by the Court.)</p>

<p>1. COURTS — County Courts — Removal of Causes — Waiver of Notice. Section 2 of the act of the Legislature entitled “An act to provide for holding sessions of the county court in Shattuek, Ellis county,” approved February 23, 1910 (Sess. Laws 1910, p. 28), requires that the party to an action, who desires to remove a cause from the county court pending at either of said places where the court is held in said county to the county court at the other place, shall give notice to the opposite party of his 'motion for such transfer; but where the opposite party is present in court at the time such a motion is presented and has an opportunity to be heard and participates in the hearing on said motion, without objections thereto on the ground that no notice had been served upon him, will be held to have waived such notice.</p> <p>2. FRAUDULENT CONVEYANCES — Right to Attack — Subsequent Creditor. It is the general rule that a subsequent creditor, who extends credit or acquires his claim after he has due notice, either actual or constructive, of an alleged fraudulent conveyance, eannot attack such conveyance on the ground that it was made in fraud of creditors.</p> <p>3. SALES — Bill of Sale — Unauthorized Recording — Notice. In the absence of any statute authorizing the filing and recording of bills of sale conveying personal property, the filing and recording of such an instrument in the office of the register of deeds does not give constructive notice of the conveyance of such property.</p> <p>4. EVIDENCE — Declarations of Seller. Anything done or said by a vendor before or at the time of an alleged fraudulent sale, showing he intends thereby to defeat his creditors, is admissible as to such intent;' and it is not necessary to its admission for that purpose that it should have been said or done in the presence of the vendee.</p> <p>5. EVIDENCE — Hearsay—Ownership of Property. Where one of tie questions involved is whether the property in controversy belongs to the plaintiff or her husband, it is error to permit a witness to testify to statements made by plaintiff's minor son, in her absence, that such property belonged to plaintiff's husband.</p> <p>(Syllabus by the Court.)</p>

<p>TRIAL — Time for Trial. Prior to May 16, 1913, the date on which the Revised Laws of Oklahoma 1910 were adopted, it was reversible error for the trial court to compel a party, over his objection upon such ground, to proceed to a trial of a case upon a date earlier than ten days after the issues were made up.</p> <p>(a) As to whether, since May 16, 1913, it is reversible error not determined.</p> <p>(Syllabus by the Court.)</p>

<p>1. MORTGAGES — Foreclosure—Complaint. A complaint, which seeks</p> <p>only to foreclose a mortgage and does not seek a judgment upon the note against the maker, need not exhibit the note secured by the mortgage.</p> <p>1 — 15 ° % ° O'g-.g ® g B P 8 oo u P ft e+- ZÍ. CD 2 CD “ ct- ® 0 H (D^ *§ tí h* c+- S. a tí ® 5 g tr ft CD vT d-O-P s o .a i % . O ri <v, 2 £ £ tí.ífgO g g «8 H - ft«H <j ® 2 ^ ^ ^ q_¡ tó _ O & „ • +» [¶] ° ^ 2 3 a • +3 4-5 *H P H J3 +» O , » s rft „ QJ -iH .2 S 2'm 2 © Cs P s 3 'g > 2 o 1 tí o £ A tí tí 43 d -4-5 o o »(d s g „ § SD-g O -H O tí I ^ S guslis* « g tí g 3 S * S S 2Ü ©S-Pií Tilsit |!s|¡If I If li^o ft</p> <p>g ££g 1 “ CdCDCD-^gcDo»** h o S-fty y § g g g.| i g ■ ¡"¿■"S(bhh rog Et. g'? caS-tí 8 |tí £ Cfcra § O rt- B. p rd tí m. s ^ S1 p- ® tí tí o 2 ® 2 oo íi ® . tí o tí ETft^ Hs tí ® Pi S o g; 3-tío h SJg CT?¡±tí£ltíS (g - era p.rf g tí ro § B'55 s ® 4{fQo 03 4 P ® 03 C+-pj C 0> ^ w ft>d H? fe4 O «Í &3 a O _ £T. CD o P © 2 O Ph 4 P g ® Ó P CD 2 5j O 02- d- p ^02 “ ® ctí “ 2 ® L P 4 rt-2 H l&llSB'lg H P S* o “ H H r 2 cj Si c* H «4-«rt- P £ ^ P ffQ a. ^ ddd p So í-í* P'.ctffQ H g</p> <p>(Syllabus by the Court.)</p>

<p>1. EVIDENCE — Lease—Presumption Against Infancy. Where nothing appears to the contrary, a lessor is presumed to be an adult at the time he makes the lease, and one who relies upon his infancy to defeat his act has the burden of proof.</p> <p>2. REFORMATION OF INSTRUMENTS — Procedure—Submission to Jury. Where such issue arises in a suit in equity to reform a lease, the court may submit the issue to a jury, pursuant to Comp. Laws 1909, see. 5785 (Rev. Laws 1910, see. 4993).</p> <p>3. APPEAL AND ERROR — Exception — Necessity. Whether the court erred in the admission of testimony over objection will not • be considered, where no exception is saved to the ruling of the court.</p> <p>4. APPEAL AND ERROR — Exception—Necessity. Where no exception was saved to that part of the charge which told the jury to ‘ ‘ take this case, the pleadings, the blank verdicts, and this charge, and, after consideration of your verdict, return with same into open court,” and nothing appears in the record to disclose that the jury did so over defendant’s objection and exception, this court will not consider whether there was error in permitting the jury to do so.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Tillman County; Frank Mathews, Judge. Action by H. L. Roberts for himself and others, subscribers to the stock of defendant corporation, against the Consolidated Alfalfa Milling Company, a corporation, and others. Motion to dismiss below overruled, and defendants bring error.

Error from County Court, Major County; E. W. Madison, Judge. Action by the Kennedy Mercantile Company, a corporation, against L. D. Dobson and another, and S. J. Bardsley intervened. From an order dissolving an attachment, plaintiff brings error.

Error from District Court, Harmon County; Frank Mathews, Judge. Action by the Farmers’ & Merchants’ State Bank of Eldorado against J. B. Cox and Geo. M. Crockett, J. W. Wright and Leona Cox, garnishees.' From an order discharging the garnishment, plaintiff brings error.

<p> Error from Superior Court, Oklahoma County; </p> <p> Edward D. Oldfield, Judge. </p> <p>Action between Oklahoma City and Thomas E. Wheeland and others. From the judgment, the City brings error.</p>

Hrror from County Court, Carter County; W. F. Freeman, Judge. Action between Edward R. Holmes and others and Gill Dillard. From an adverse judgment, the parties first named bring error.

Error from District Court, Okmulgee County; W. L. Barnum, Judge. Action by C. R. Dean against Henry Adams and others to quiet title. Judgment for defendants, and plaintiff brings error..

Error from District Court, Muskogee County; R. C. Allen, Judge. In the matter of the estate of Amanda Plerod, deceased. From a judgment decreeing and finding the purported will of Amanda Herod to be a forgery, Wallace Herod and others bring error.

<p>APPEAL AND ERROR — Frivolous Appeal — Right to Dismiss. This court has the inherent power to dismiss an appeal which is manifestly frivolous.</p> <p>(Syllabus by the Court.)</p>

<p>CONSTITUTIONAL LAW — Weights and Measures — Due Process — Conclusiveness of Weights. Act approved March 7, 1913 (Sess. Laws 1913, c. 24, p. 41), providing that, where lists of baled cotton are purchased from local buyers and stored in cotton yards owned and operated by cotton weighers, they shall reweigh the same before it is removed from their yards; that the purchasers may be present, and (section 4) “when any cotton shall be reweighed in their presence they shall accept the weights as being correct and malte final settlement on the same;" and (section 5) that when the same is reweighed according to the provision of said act “the transaction between the buyer and seller as to weights, shall be at an end and neither party shall have any recourse on the other"- — held to be a legislative attempt to make conclusive, between the parties to a sale, the finding of the fact of the weight of the cotton by the weigher, and hence is unconstitutional as denying the buyer or seller, when sued by the other, due process of law.</p> <p>(Syllabus by the Court.)</p>

Joseph G. Ralls filed a protest against Referendum Petition No. 28, State Question No. 65. The protest was denied by Benjamin F. Harrison, Secretary of State, and protestant appeals. Protest sustained.

<p>Action between J. IT. Earp and Ben W. Riley. From decision of Benjamin F. Harrison, Secretary of State, denying protest of Earp against Referendum Petition No. 27, State Question No. 64-, Earp appeals.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Jesse L. Harnage and the Delokee Gas & Oil Company against Annie M. Martin and the Roth-Argue-Maire Bros.- Oil Company. Judgment for defendants, and plaintiffs bring, error.

<p>APPEAL AND ERROR — Decisions Reviewable — Final Orders. Where the order sought to be reviewed is not a final order, as defined by Rev. Laws 1910, see. 5237, the proceeding in error will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>JURY — Right to Jury Trial — Cross-Petition. _ In a cross-petition for judgment on a note and foreclosure of the mortgage lien, when an issue is joined as to the amount due, the trial must be had before a jury, unless the jury is waived.</p> <p>PLEADING- — Verification—Judgment. The defendants, in their answer, having pleaded the execution of the note and the mortgage, and asked for judgment thereon and the foreclosure of said mortgage, and the plaintiff: having replied by a denial, without verification, this raises no issue of fact as to the execution of the mortgage and note and the amount due thereon, and judgment should have been rendered in favor of the defendants against the plaintiff for the amount of the note and a foreclosure of the mortgage lien.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Johnston County; </p> <p> Robt. M. Rainey,. Judge. </p> <p>Action by Sylvina E. Watson (nee Thurlow), a minor, by her next friend, J. C. Thurlow, and John K. Watson, her husband, against R. J. McKay. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error, from District Court, Blaine County; </p> <p>James R. Tolbert, Judge.</p> <p>Action by the State against W. R. Kelley and D. H. Has-kins. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR, — Trial — Findings — Conclusiveness. A jury ease having been tried to a court, without a jury, a general finding by the court in favor of one of the parties will, upon review here, be given the same weight as the verdict of a jury. (a) Where the evidence was partly in parol and partly in writing and conflicting, and the finding of the court is general, such finding is a finding of every special thing essential to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p> <p>2. PRINCIPAL AND AGENT — Acts of Agent — Binding Effect on Principal. One who voluntarily accepts the profits of an act done by one assuming, although without authority, to be his agent ratifies his act, and takes it as his own, with all its burdens, as well as its benefits.,</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Oklahoma County; </p> <p> Edward D. Oldfield, Judge. </p> <p>Action by Jarasalov Hanaeik against James K. Perrine. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Tillman County; </p> <p> Frank Mathews, Judge. </p> <p>Action by A. D. Winsor, for himself and for the balance of the stockholders, against the Consolidated Alfalfa Milling Company, a corporation, James J. Hanna, R. S. Rowland, W. E. Welch, and W. B. Skirvin. For the failure of the court to overrule motion to dismiss, defendants bring error.</p>

<p> Error from District Court, Pazmee County; </p> <p> L. M. Poe, Judge. </p> <p>Action by T. W. Storm against Ray Tansel. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Greer County; </p> <p> G. A. Brown, Judge. ■ </p> <p>Action between Eli Messmore and others and C. Given. From the judgment, Messmore and others bring error.</p>

<p>JUSTICES OF THE PEACE — Judgment—Equitable Relief. A court OF equity may interfere to set aside a judgment of a justice of the peace with leave to retry the cause, when it is made to appear' that counsel for plaintiff in the action before the justice, in the' absence of Opposing counsel, obtained said judgment in advance-of the time when it ■ otherwise would have been rendered by violating a stipulation aá to the day of trial, and that defendant had a good defense tó'said action.-</p> <p>(Syllabus by the :Oourt.) ■</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by John H. Miller and another, a partnership, etc.,, against T. Bache Bleecker. Judgment for plaintiffs, and defendant brings error.

<p> Error from County Courts Oklahoma County;' </p> <p> John W. Hays on, Judge. </p> <p>Action between E. F. Wilhoit and S. C. HaswelL From the judgment, Wilhoit brings error.</p>

<p>INDIANS — Jurisdiction of State Courts — Proceeds of Indian Allotment. The royalties and proceeds of an allotment of a member of the Cherokee Tribe of Indians, shown by the enrollment record to be a minor, are, under the provisions of an act of Congress of May 27, 1908, c. 199, 35 St. at L. 312, subject to the jurisdiction of the county court in the exercise of its probate jurisdiction, notwithstanding the fact that by extrinsic evidence it may be shown that the said member had in fact attained his majority.</p> <p>(Syllabus by the Court.)</p>

<p>Error from Superior Court, Oklahoma County;</p> <p> Edvuard D. Oldfield, Judge. . </p> <p>Action between C. W. Brooks and G. O. Fenimore and others. From the judgment, Brooks brings error.</p>

<p> Error from Superior Court, Oklahoma County; </p> <p> Edward D. Oldfield, Judge. </p> <p>Action between Lee Harned and Joseph Nash and Mary E. Nash, with A. L. Hilprit and J. T. Walter impleaded. From the judgment, Harned brings error.</p>

On rehearing. Mandate recalled, and judgment of the trial court for plaintiff, S. E. Peck, Former opinion overruled in part; see 37 Okla. 85, 130 Pac. 805.

<p>INDIANS — Judgment—Will Contest — Jurisdiction. Whether the will of a full-blood Indian who disinherits her spouse is acknowledged by a judge of the United States Court, or United States Commissioner, or a judge of the county court, pursuant to Act Cong. April 26, 3 906, c. 1876, sec. 23, 34 St. at L. 145, is a question which involves the due execution and attestation of the will, over which the county court has jurisdiction in the contest proceeding provided for by section 5157, Comp. Laws 1909 (Rev. Laws 1910, see. 6210), after the will is presented for probate; and the decision of that court upon that question, unless appealed from, is final and is not subject to collateral attack in a suit in partition filed by the spouse, wherein it is alleged that the will is void as to him on account of noncompliance with the federal statute in that respect.</p> <p>(Syllabus by the Court.)</p>

<p> Appeal from the State Corporation Commission. </p> <p>Proceedings before the Corporation Commission by the State, on the relation of Charles West, Attorney General, against the Atchison, Topeka & Santa Ee Railway Company. Erom an order directed to the Railway Company, it appeals.</p>

Error from District Court, Seminole County; Tom D. McKeown, Judge. ■ Action between Thomas Johnson and others and J. R. Simpson. From the judgment, the parties first named bring error.

Petition by the State to recover from the Pioneer Telephone & Telegraph Company the refund of excess charges. From an order of the Corporation Commission for petitioner, the Company appeals.

<p>1. CARRIERS — Shipment of Cattle — Liability for Negligence. Where a common carrier receives cattle for transportation, it is his duty to carry them to their destination within a reasonable time, and, for a negligent failure so to do, an action will lie, whether the shipment be made under a special contract or not. In such case the owner of the property has a right of action, independent of any special contract he may have, and he is not bound to sue upon such contract or to set it out in his petition.</p> <p>2. WITNESSES — Competency — Knowledge — Reasonable Time for Transportation. Where witness was asked to state what was a reasonable time to transport cattle under a shipping contract between two certain points on defendant’s line of road, which was objected to, "unless the witness knows the schedule time our trains are run” between those points, which was overruled, and the witness permitted to answer, held, no error.</p> <p>3. CARRIERS — Delayed Shipment — Burden of Proof. If, in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to safely transport certain cattle, it is shown that defendant failed to deliver the same in a safe condition within a reasonable time, a presumption of negligence arises, and the onus is upon the defendant to excuse itself from negligence.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Hughes County; Malcolm E. Rosser, Judge. Action between Eliza Irving and others and Wallace D. Diamond and others. From the judgment, the parties first named bring error.

<p>PUBLIC LANDS — School Lands — Right to Re-lease. Where in ejectment plaintiff relied upon a lease from the School Land Department of the state, and defendant on a prior lease of the same lands from the board for leasing school lands of the territory of Oklahoma and proof of his prior and continuous possession under said lease, and that he had since improved the same and lived thereon with his family, that he had paid the rents and complied with all the conditions of the lease, and had made application to renew the same in conformity to Comp. Laws 1909, see. 7435 '(Rev. Laws 1910, sec. 7174), held, that the court erred in directing a verdict for plaintiff.</p> <p>(Syllabus by the Court.)</p>

<p>CORPORATIONS — Foreign. Corporations — ‘ ‘Carrying on Business” — Contracts — Compliance With Statutory Requirements — Former Opinion Followed. The first section of the syllabus in Cooper v. Ft. Smith & W. R. Co., 23 Okla. 139, 99 Pac. 785, is made the syllabus of this case.</p> <p>(Syllabus by the Court.)</p>

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

<p>APPEAL AND ERROR — Case-Made—Time for Serving — Extension. An order granting an extension of. time made after the expiration of the time originally granted for making and serving ease-made is void.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Case-Made—Failure to File Below — Dismissal. A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and where such a ease-made remains in this court after the expiration of the statutory time in which to p>erfect an appeal, on motion the appeal will be dismissed.</p> <p>2. SAME — Certifying as Transcript. Certifying a case-made as a transcript avails nothing where no error is assigned apparent on the face of the record.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washington County; </p> <p> R. H. Hudson, Judge. </p> <p>Action by W. Wolcott, as guardian of Ala M. Reed, a minor, against Andrew Reed, former guardian, and the Title Guaranty & Surety Company, as surety. Judgment for plaintiff, and defendants bring error.</p>

<p> Frror from District Court, Washington County; </p> <p> R. FI. Hudson, Judge. </p> <p>Action by W. Wolcott, as guardian of Philetus L. A. Reed, a minor, against Andrew Reed, former guardian, and the Title Guaranty. & Surety Company, as surety. Judgment for plaintiff. and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Time for Taking Appeal. 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>2. STATUTES — Time for Taking Appeal — Repeal by Revision. Section 5255, Rev. Laws 1910, does not repeal chapter 18, Sess. Laws 1910-11.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Atoka County; J. G. Ralls, Special Judge. Action by Alvina Crow against William H. Crow to set aside a decree of divorce. A demurrer to plaintiff’s evidence was sustained, and she brings error.

<p>COLLECTION OF TAXES — Injunction—Former Opinion Followed. Affirmed, upon the authority of Thurston, County Treas., v. Caldwell et al., ante, 137 Pae. 683.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Scope of Review — Weight of Evidence —Credibility of Witnesses. Where there is a conflict in the evidence on the issues joined, the determination of the question of fact thereon is solely for the jury. (a) This court on review, where there is a conflict in the evidence on an issue in the trial court, will not weigh the evidence or determine as to the credibility of the witnesses; that, under the law in this jurisdiction, being solely within the province of the jury.</p> <p>2. NEGLIGENCE — “Actionable Negligence’’ — Elements. To constitute actionable negligence, where the wrong or injury is not willful or intentional, three elements are essential: (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>3. MASTER AND SERVANT — Injury to Servant — Negligence—Burden of Proof. The fact of an accident or injury to the employee as a rule carries with it no presumption of negligence' on the part of the employer.</p> <p>(a) It is incumbent upon the employee to prove that the accident or injury was a result of the negligence of the employer before he is entitled to recover damages therefor against the employer.</p> <p>4. SAME — Safety of Employee — Duty of Master. The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employee or servant is to work, and also reasonably safe machinery, tools, and implements with which to work, and to supply him with reasonably safe material on which to work.</p> <p>5. NEGLIGENCE — Extent of Liability — Proximate Cause. A party guilty of negligence or omission of duty is responsible for all the consequences which a prudent and experienced party, fully acquainted with all tho circumstances which in fact exist, whether they could have been ascertained by reasonable diligence or not, would have thought at the time of the negligent act as reasonably possible to follow, if they had been suggested to his mind.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, McClain County; R. McMillan, Judge. Suit for an injunction by J. J. Frank and others, trustees, etc., against J. B. Thurston, County Treasurer of McClain County. Decree for plaintiffs, and defendant brings error.

<p> Error from District Court, McClain County; </p> <p> R. McMillan, Judge. </p> <p>Suit by Lewis T. Hine against J. B. Thurston, County Tréklurer. Judgment for plaintiff, and defendant brings error.</p>

<p>PAVING ASSESSMENT — Former Opinion Followed. Reversed on authority of City of Bartlesville et al. v. Holm et al., post, 139 Pac. 273.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Suit by H. J. Holm and others against the City of Bartlesville and others to enjoin collection of special assessment. Judgment for plaintiffs, and defendants bring error.

<p>PAVING- ASSESSMENT — Former Opinion Followed. Reversed on authority of City of Bartlesville et al. v. Holm et al., ante, 139 Pac. 273.</p> <p>(Syllabus by the Court.)</p>

<p>NAVIGABLE WATERS — Ownership in State — Powers of Congress. The ownership of the navigable waters and the soil under them in all the territory embraced in the Louisiana Purchase was held in trust by the federal government, and as each of the states was created, the same, within the boundaries of such state, passed to it, and the absolute right to such navigable waters and the soil thereunder is in the state,'subject to the public rights and the paramount power of Congress over navigation.</p> <p>SAME — Title—Riparian Owner. If a river is in fact navigable, and in fact used for purposes of commerce, the title to the waters thereof and the bed thereunder is held by the federal government, and when a territory containing such navigable river becomes a state, the title thereto vests in the state, regardless of subsequent navigation or navigability, and the fact that a ri» parían -owner obtains title to the land adjoining such stream prior to statehood does not divest the state of such title.</p> <p>EVIDENCE — Judicial Notice — Lands Under Water — Title. The Supreme Court takes judicial notice that the Arkansas river is the largest western tributary of the Mississippi-Missouri system-; that it is two thousand miles long, draining an area of approximately 189,000 square miles; that it is navigable through its course in the state of Oklahoma; that the title to the bed of the Arkansas river to high-water mark, within the boundaries of Oklahoma, is in the state.</p> <p>NAVIGABLE WATERS — Title to Islands — Surveys. An oversight in omitting an island in a navigable stream ‘from the field notes and plat of the government survey of 1872 did not divest the United States of title thereto, nor interpose any obstacle to a survey thereof being made in 1908.</p> <p>SAME — Statutes—Validity—Effect. The ownership of the bed of the Arkansas river extends to high-water mark and the act of the territorial Legislature of Oklahoma, St. Okla. 1890, sec. 4173 (Comp. Laws 1909, sec. 7254 [Rev. Laws 1910, sec. 6639]), was in conflict with the Constitution of the United States when enacted, and therefore void, and was never in force in Oklahoma territory, and never became and is not. now the law of this state.</p> <p>NAVIGABLE WATERS — Title to Bed of Stream. Where a government patent to land describes the same by lots and refers to tlie official plat of tlie survey thereof and such plat shows that the land conveyed is bounded by a navigable river, the title extends no further than the edge of the stream and does not include an island, though the channel between that and the main land may not be navigable.</p> <p>7. APPEAL AND ERROR — Parties—Jurisdiction—Title to Property. The United States not being a party to this action, this court cannot determine the question of title to the island between the federal government and Larry Nolegs.</p> <p>(Syllabus by the Court.)</p>

<p> Error from. County Court, Ellis County; </p> <p> A. E. Williams, Judge. </p> <p>Action between W. E. Moore and the Howard Mercantile Company. From the judgment, W. F. Moore brings error.</p>

<p>1. EXCEPTIONS, BILL OF — Time Allowed — Term—“Exception.” An “exception” ‘is an objection taken to a decision of the court or judge upon a matter of law.</p> <p>2. SAME — Presentation for Review. The party objecting to a decision must except at the time the decision is made, and time may be given to reduce the exception to writing, but not beyond the term.</p> <p>3. SAME. Where no time is asked or granted for reducing exceptions to writing at the time the decision excepted to is made, there is no authority for signing and allowing a bill of exceptions and making it a part of the record proper after the expiration of the term.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court; Carter County; </p> <p> S. H. Russell, Judgei </p> <p>Proceedings in mandamus by T. C. Bridgman and L. C. Slaughter against W. R. Roberts, Mayor of the City of Ardmore, Oklahoma. Judgment for defendant, and plaintiffs bring error.</p>

Error from County Court, Stephens County; T. B. Reeder,, Special Judge. Action between Julia F. Cantwell and A. W. Patterson and others. From the judgment the party first named brings error.

<p>1. APPEAL AND ERROR — Review—Assignment of Error — Motion for New Trial. Where the appellant fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented to this court to review error alleged to have occurred during the progress of the trial in the court below.</p> <p>2. SAME — Necessity of Specific Assignment. Where an assignment of error is so general as not to point out the real error or errors complained of, this court will not consider them, nor will it examine the record with regard thereto.</p> <p>3. BILLS AND NOTES — Action Against Endorser — Petition—Sufficiency. Petition examined and held to state a cause of action.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Review — Exceptions to Remarks of Court — Time to Object. Where no objections were made or exceptions saved to a remark of the court in the presence of the jury, and the motion for new trial does not mention same, that question cannot be raised for the first time in this court.</p> <p>.2. TRIAL — Instructions — Question for Jury — Negligence. In an action for damages against a railway company for personal injuries, where one of the controverted facts in the case was the ■location of a “skid” on the depot platform, and where some of the testimony tends to show that it was a bright moonlight night and that a person exercising ordinary care could have seen said “skid,” the court instructed the jury: “The court instructs the jury that the mere fact of leaving a ‘skid, such as has been described to you in the evidence, upon the platform where it was necessary for the egress and ingress of passengers to and from said depot, without said platform being lighted so that passengers could distinguish and see said 'skid,' this in itself would in la.w be negligence.” Held, such instruction was error.</p> <p>(Syllabus by the Court.)</p>

<p>Error from Superior Court, Muskogee County;</p> <p>Farrar L. McCain, Judge.</p> <p>Action by the Union State Bank against J. T. Cargile;'J. W. McRea, and the Mid-Continent Life Insurance Company. From the judgment, J. T. Cargile brings error.</p>

Original action for writ of mandamus by the State on relation of Charles Nichols and others against Hal Johnson, judge of the county court of Pottawatomie county, to compel him to certify his disqualification to preside in the matter of the estate of Enos Nichols, deceased.

<p> Error from County Court, Bryan County; </p> <p> J. L. Rappolce, fudge. </p> <p>Action by James W. Standley against the St. Louis & San Francisco' Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Tillman County; </p> <p> T. E. Campbell, Judge. </p> <p>Action by R. M. Galey against the Wichita Falls & Northwestern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PLEADING — Petition. — General Demurrer. In an action on account where the petition upon its face states facts sufficient to constitute a cause of action against the defendant, but certain exhibits attached thereto suggest a doubt as to whether the defendant, in making the purchase, acted in a representative capacity, or as an individual, a general demurrer thereto should be overruled.</p> <p>2. EVIDENCE — Parol Evidence of Intent. In such circumstances parol evidence is competent for the purpose of showing the true intent of the parties.</p> <p>3. PRINCIPAL AND AGENT — Contracts—Liability of Agent. Although an agent enters into a contract with the actual intention or binding his principal only, if his wording of the same, or the circumstances of the case are such as to bind himself, he will be personally liable thereon, notwithstanding the fact that he may have 'incidentally disclosed the name of his principal.</p> <p>(Syllabus by the Court.)</p>

<p>1. WITNESSES — Competency — Husband and Wife. Evidence introduced over objection, examined and held not to be incompetent because of Comp. Laws 1909, see. 5842 (Rev. Laws 1910, sec. 5050).</p> <p>2. BANKS AND BANKING — Deposits—Presumption of Ownership —Garnishment. Where the answer of the garnishee bank discloses, prior to the service in garnishment, a general deposit to the credit of defendant was made, accompanied by a statement to the bank that the sum belonged to her little giri, but defendant was going to use it to educate the child, etc., held that the statement failed to overcome the presumption that defendant, as depositor, is the owner of said fund standing deposited in her own name.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Kingfisher County; </p> <p> John M. Graham, Judge. </p> <p>Action by Lizzie B. McNeal against P. S. Nagle and Angie Nagle, his wife. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Hughes County; </p> <p> John Caruthers, Judge. </p> <p>Action by Agnes Scott aga'inst John A. Jacobs and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Comanche County; </p> <p> J. T. Johnson, Judge. </p> <p>Action by Charles H. Ayres against the City of Lawton. Judgment for plaintiff, and defendant brings error.</p>

Brror from District Court, Oklahoma County; W. R. Taylor, Judge. Action by Lee Bernstein and Louis Bernstein, partners, doing business as Bernstein Bros., against the Union Bond & Investment Company and others, and Hans Studt intervened. From a judgment for .plaintiffs and intervener, defendants bring error.

<p>Error from District Court„ McClain County;</p> <p> R. McMillan, Judge. </p> <p>Action by O. W. Patchell against Harmon Harper and J. W. Hocker. Judgment for defendants, and plaintiff brings error.</p>

<p>BEPLEVIN — Ownership of Property — Fraud. In an aetion of replevin where the plaintiff alleges that he is the absolute owner of the property involved and entitled to the immediate possession, and introduces evidence clearly establishing such ownership, and the defendant denies sueh ownership and avers that the assertion thereof is fraudulently made for the purpose of enabling a judgment debtor, who is the real owner, to evade an execution issued against him, a mere scintilla of evidence, tending to establish the charge of fraud, is not sufficient to take the ease to the . jury upon that issue.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Carter County;</p> <p>S. H. Russell, Judge.</p> <p>Ejectment by C. F. Adams against T. C. White. Judgment, for defendant, and plaintiff appeals.</p>

Error from County Court, Le Flore County; P. C. Bolger, Judge. Action on a forfeited bail bond by the State, on the relation of W. D. Buckley, against John E. Drake and another. Judgment for defendants, and plaintiff brings error.

<p>JUSTICES OF THE PEACE — Appeal—Jurisdiction of County Court. The law announced in the first section of the syllabus in Holcomb v. Chicago, E. I. & P. Ey. Co., 27 Okla. 667, 112 Pae. 1023, rules this case.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR ■— Petition in Error — Time for Filing. 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>2. SAME — Review—Motion for New Trial — Dismissal. Where, six months after a final judgment is rendered, a second motion for new trial, under section 5035, Rev. Laws 1910, is filed and overruled, the sole question to be reviewed by this court is the ruling of the trial court on such second motion for new trial, and, in the absence of error in such ruling, the appeal must be dismissed.</p> <p>On Rehearing.</p> <p>3. APPEAL AND ERROR — Petition in Error — Time for Filing. The petition in error must be filed in this court within six months after the rendition of the final order sought to be reviewed, and. if not filed in such time, this court has no jurisdiction to entertain the appeal.</p> <p>4. NEW TRIAL — Motion—Time for Filing. Where, after the expiration of six months from a final judgment a second or other motion for new trial is sought to be filed in the trial court, such trial court is without jurisdiction to entertain the saqie, unless it be that the ground of such motion is based upon newly discovered evidence, in which ease a motion for new trial can be filed within one year after the rendition of final judgment.</p> <p>5. SAME. Where, as in this case, a motion for new trial was filed after the expiration of six months from the rendition of final judgment, and not based upon newly discovered evidence, as authorized by section 5037, Bev. Laws 1910, it is held that J;he court was without jurisdiction to determine such motion, and that the filing and entering of such motion by the court afforded no relief to plaintiff in error, defendant below.</p> <p>(Syllabus by the Court.)</p>

<p>STATES — Board of Agriculture — Compensation of Clerk — Fund Available. "Where Bev. Laws 1910, sec. 12, gives the Board of Agriculture "power to employ all clerical help necessary to conduct the busi- ' ness of the board and fix their compensation within the limitation fixed by law, ’ ’ and where general appropriation act for 1913-1915 (Sess. Laws 1913, e. 289) appropriates to the board in one item for "salaries of officers and employees, $12,600" for the fiscal year 1914, and in another for "demonstration farming, $8,500," and where the auditor refused to draw his warrant to pay, out of the latter fund, a claim duly issued to relator by said board for "salary as bookkeeper and clerk in demonstration farming department Oklahoma State Board of Agriculture, month of August, 1913," held, that said claim is not payable out of the fund upon which it was drawn, and that mandamus will not lie to compel the auditor so to do, because prohibited by Constitution, art. 5, sec. 55.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Case-Made—Time of Filing. A trial judge has no power to extend the time for making a case-made after the time fixed by the statute, or the time fixed by the order of the court or trial judge extending the statutory period for making the ease-made has elapsed.</p> <p>2. SAME. Rev. Laws 1910, see. 5242, construed, and held not to operate retrospectively or apply to judgments entered before its passage, but is limited in its operation to judgments thereafter entered.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by W. Wolcott, as guardian of Alice L. V. Reed, a minor, against Andrew Reed, former guardian, and the Title Guaranty & Surety Company, as surety. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Washington County; </p> <p> R. H. Hudson, Judge. </p> <p>Action by W. Wolcott, as guardian of David A. Reed, a minor, against Andrew Reed, former guardian, and the Title Guaranty & Surety Company, as surety. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from County Court, Stephens County; </p> <p> G. F. Womack, Special Judge. </p> <p>Action between George W. Works and W. P. Hickerson. From the judgment, the party first named brings error.</p>

<p>SCHOOLS AND SCHOOL DISTRICTS — Contract for Books and Supplies— Filing Contract and Bond — Approval of Contract. Rev. Laws 1910, secs. 7709 and 7710, construed, and held to require the contract and bond of the successful bidder, duly executed as provided by law,' to be filed with the State Board of Education within the time prescribed by the board in its advertisement for bids. Where such bond was presented to the Governor in due time, pursuant to Rev. Laws 1910, sec. 7712, and he refused to approve the same, whereupon it was filed with the Secretary of State without the approval of the Governor, and the board subsequent to that time prescribed by it in its advertisement for bids proceeds to advertise for other bids, such bond becomes a nullity, and the subsequent act of the Lieutenant Governor, while acting as Governor, in approving said bond, is also a nullity and will not constitute a performance of the condition precedent to the right of the board to approve the contract, and mandamus will not lie to compel the board so to do.</p> <p>(Syllabus by the Court.)</p> <p>Williams, J., dissenting.</p>

Brror from District Court, Oklahoma County; John J. Carney, Judge. Mandamus by Silver, Burdette & Co. and another against Frank J. Wykoff and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by Sequoyah County, on the relation of its Board of County Commissioners, for the removal of Lee Helms, County Treasurer, from office. Judgment for defendant, and plaintiff brings error.

<p>APPEAL AND ERROR — Parties — Joint Judgment — Service of Case-Made. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs or as defendants in error, before such judgment can be reviewed; and, where the review is sought by means of petition in error and ease-made, service of the ease-made within the time prescribed by statute must be had upon all parties against whom the joint judgment is rendered who do not join in the appeal as plaintiffs in error, and who are not made parties thereto as defendants in error, and failure to serve the ease-made upon such parties will operate to prevent the same from being considered in this court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by the County of Kingfisher against John M. Graham. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by Kingfisher Count}', State of Oklahoma, against Dennis Downing. Judgment for defendant, and plaintiff brings' error.</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by Kingfisher County, State of Oklahoma, against George H. Woodworth. Judgment for defendant, and plaintiff brings error,</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by Kingfisher County, State of Oklahoma, against H. L. Miles. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by Kingfisher County, State of Oklahoma, against George • L. Bowman. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Washington County; </p> <p> L. M. Poe, Judge. </p> <p>Injunction by the-City of Bartlesville against the Pioneer Telephone & Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CARRIERS — Delay in Transporting Stock — Negligence—Burden of Proof. If in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to safely transport certain cattle within a reasonable time, it is shown that defendant failed to deliver the same in a safe condition within a reasonable time, a presumption of negligence arises, and the onus is upon the defendant to excuse itself from negligence.</p> <p>2. SAME — Sufficiency of Evidence. Evidence examined, and, applying the rule, held, that the same was sufficient to take the question of negligence to the jury.</p> <p>3. ■ SAME — Defense to Delay. Where in a common-law action to recover damages for the breach of a shipping contract, whereby defendant undertook to transport certain cattle within a reasonable time, the evidence reasonably tends to show that defendant breached its contract by failing so to do, the same is sufficient to take the question of negligence to the jury, and the presumption of negligence is not explained or rebutted by positive evideuce on behalf of the defendant that the regular schedule of its stock trains would not enable it to deliver the cattle within a reasonable time.</p> <p>4. APPEAL AND ERROR — Requisites of Brief — Instructions. Where defendant fails to comply with rule 25 (38 Okla. x), and set forth the instruction complained of in totidem verbis, the alleged error in giving the instruction will not be considered.</p> <p>5. EVIDENCE — Expert Testimony — Admissibility. Where a witness qualifies as an eximrt in the handling of cattle, his opinion that certain treatment within the issues contributed to the depreciation of the cattle is competent evidence.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL ANI* ERROR — Trial—Findings—Conclusiveness. A jury case having been tried to the court without a jury, a general finding by the court in favor of one of the parties will, upon review here, be given the same weight as the verdict of a jury.</p> <p>(a) Where the evidence was partly in parol and partly in writing, and conflicting, and the finding of the court is general, such finding is a finding of every special thing essential to sustain the general finding, and is conclusive upon this court upon all doubtful and disputed questions of fact.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Okfuskee County. </p> <p> W. A. Huser, Judge. </p> <p>Action by Charles E. Guthrie against Lewis C. Lawson. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BILLS AND NOTES — Acceptance of Draft — What Constitutes. Where defendant wired as follows, “Tri-State Oil Co., Tulsa, Oklahoma. Beeheeking accounts. Owe you balance seventeen thirty-six forty-two. Lou are authorized to draw on us. Muskogee'. Pipe Line Co.;” and where such telegram was exhibited to the-. First National Bank and attached to draft for said sum before it. was honored and paid by said bank; and where such telegram had noted thereon when it was received by the company for transmission the following words, “Chg. a-e Musk. Pipe Line Co.,” and. subsequently the Muskogee Pipe Line Company paid for the transmission of the same — held, that the same constituted an acceptance of the draft by the Muskogee Pipe Line Company.</p> <p>2. BILLS AND NOTES — Acceptance of Draft — Refusal of Payment —Grounds—Place Payable. ■ Where one has agreed to accept a draft for a certain sum, he cannot refuse payment of same because the draft, when presented, concludes with the words “with exchange,” no place of exchang-e being named and the draft being payable at the residence of the drawee, when the evidence fails, to show that exchange was sought to be charged or collected.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Kingfisher County; </p> <p> James W. Steen, Judge. </p> <p>Action by County Commissioners of Kingfisher against J. A Lindsey, etc. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Pawnee County; L. M. Poe, Judge. Action in the nature of a creditors suit by Charles Gassert against Catherine Martin and others. Judgment for plaintiff, and defendants bring error.

<p>1. PLEADING' — Objection—Evidence. Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.</p> <p>2. MASTER AND SERVANT — Safe Place to Work — Duty of Master. The employer is under an implied contract with those whom he employs to exercise ordinary care to adopt and maintain suitable instruments and means with which to carry on the business in which he requires their service, and this includes an obligation to provide a reasonably safe place in which the servant, being himself in the exercise of ordinary care, can perform his duty safely, or at least without exposure to dangers that do not come within the obvious scope of his employment.</p> <p>3. SAME — Liability. The duty of exercising ordinary care to furnish the servant a reasonably safe place to work is personal to the master, and the master is liable for injuries resulting from a breach of this duty, no matter what may be the ordinary duties or the rank or grade or department of the servant to whom its performance has been delegated.</p> <p>4. SAME. The rule requiring a master to exercise ordinary care to furnish his servant a reasonably safe place to work is applicable, where the servant was directed to remove certain galvanized iron tanks or cans from the plaee where they were piled by the master; the plaee not being unsafe, except for the negligent manner in which the tanks or cans had been piled.</p> <p>5. SAME. The fact that there may be dangers connected with the general class of work the servant is directed to perform which ordinary eare on the part of the master cannot remove, does not excuse him from liability for injuries due to dangers which the exercise of ordinary eare would remove.</p> <p>6. SAME — Sufficiency of Evidence. Evidence examined, and held sufficient to sustain the verdict attributing want of ordinary eare to the master in the matter of furnishing the servant a reasonably safe place to work.</p> <p>7. SAME — Contributory Negligence — Assumption of Eislr — Demurrer to Evidence. Section 6, art. 23, Williams’ Ann. Const. Okla., provides: “The defense of contributory negligence or of assumption of risk shall, in all eases whatsoever, be a question of fact, and shall, at all times, be left to the jury.”</p> <p>8. INSTRUCTIONS. Instructions given and refused in connection with those of which counsel for defendant complain examined, and held, that there was no material error committed by the court below in the matter of giving or refusing to give instructions.</p> <p>9. APPEAL AND ERROR — Harmless Error — Instructions. By section 4791, Rev. Laws 1910, -the Supreme Court is required to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Moot Question — Dismissal. This court will not decide abstract or hypothetical eases, disconnected from the granting of actual relief, or from the final determination of which no practical relief can follow.</p> <p>(Syllabus by the Court.)'</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by the Chickasha National Bank against W. T. Cloud, County Treasurer, and others, to enjoin collection of taxes. Judgment for defendants, and plaintiff brings error.

Error from District Court, Muskogee County; R. P. deGraffewried, Judge. In the matter of the Guardianship, of Malinda Colling, a minor. Jane Howard was appointed guardian in the place of Elijah Mucker, and a final accounting rendered by Mucker. From an order changing the account to show a balance due the minor, Mucker appeals.

<p> Error from District Court, McClain County ; </p> <p> R. McMillan, Judge. </p> <p>Action by Clarence E. Wallace, a minor, by John Wallace, his legal guardian, against G. V. Killian. Judgment for defendant, and plaintiff brings error.</p>

<p>1. MASTER AND SERVANT — Injuries to Servant — Petition—Sufficiency. Petition examined, and held to state a cause of aetion.</p> <p>2. SAME — Defective Appliances — Responsibility of Master. The responsibility to its servants of a lumber company operating a railroad is the same in respect to cars of other companies which “ the servants are compelled to handle as in respect to its own, especially where the defects are not latent.</p> <p>3. SAME. Where a lumber company, in connection with its business, operates a railroad between its timber and mills and has its own men in charge of the engine and trains, it is bound to exercise ordinary care in providing its servants a reasonably safe place to work, reasonably safe tools, appliances,. and machinery. ■ ¡</p> <p>4. SAME — Injury to Servant — Concurring Negligence of Fellow Servant — Liability of Master. Where an employee of a lumber eom- ' pany is engaged, in checking lumber in a box car, without knowing that his fellow servants are engaged in switching other cars on the same track, and a drop switch is made, thereby "kicking” loaded cars which have broken brakes against the car in which the employee is at work, whereby he is injured, held, the lumber company is liable notwithstanding the fact that the accident was caused by the concurring negligence of the fellow servant.</p> <p>5. SAME. Where a lumber company’s foreman has under his charge one known to him to then be engaged in checking lumber in a box ear, and without warning directs an engineer to make a drop switch of cars • on a grade siding, which ‘ kicks ’ ’ loaded cars against the box car, pushing the ends of the lumber together, thereby crushing and injuring the "checker,” the lumber company is liable, notwithstanding the fact that the engineer was a fellow servant of the person injured.</p> <p>6. SAME — Assumption of Bisk. Where the master has a rule against employees working in cars when switching is being done on the same track, and an employee is cheeking lumber for the company in a car, and does not know that switching is being or about to be done on that track, and cars are ‘ ‘ kicked ’ ’ against the car in which such employee is working, and he is thereby injured, held, there is no assumption of risk on the piart of the servant, whereby’ the master is relieved from liability for such injury.</p> <p>•7. INSTRUCTIONS APPROVED. Instructions given by the court examined, and held to properly state the law.</p> <p>8. RAILROADS — Tramroad — "Railroad.” The term "railroad” will include a tramroad belonging to a lumber company.</p> <p>9. TRIAL — Injury to Servant — Instruction. In an employee’s action for injuries before statehood, an instruction that certain chapters of the Arkansas law were applicable to the case, and that the law in force at the time of the injury governed, was misleading, and might have caused the jury to speculate as to what the Arkansas law was, and was properly refused; it being the court’s duty to state what the law was, regardless of its source.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Verdict—Conflicting Evidence. This cause was submitted to the jury on an issue joined upon mutual accounts existing between plaintiff and defendant, and a verdict returned in favor of plaintiff. Held that, where a cause is tried to a jury, and a general verdict returned, a judgment rendered on the verdict, and the evidence is conflicting and contradictory, and there is competent evidence to sustain the verdict, this court will not undertake to weigh the evidence or to determine where the preponderance lies.</p> <p>2. PRINCIPAL AND AGENT — Right to Terminate Relationship. G., a wholesale merchant, employed J. as salesman to sell goods manufactured by G., and the employment was for no special time. Held, that G., the principal, could, by notice, arbitrarily discontinue the services of J.</p> <p>3. SAME — Conversion of Samples — Liability of Agent, where the principal delivers to his agent, who is employed as- salesman, certain samples to be used in the sale of the principal’s goods, and the principal thereafter discontinues the services of said agent, and requests a return of the samples, and at this date the principal is indebted to the agent for commissions on sales made, the agent notifies the principal, refusing to return the samples until his commissions have been paid, and thereafter sells the samples, and applies the proceeds on what is due him by the principal, held that, there being no evidence of bad faith on the part of the agent, he will not be liable to the principal for the invoice price of said samples as of date they were delivered to him in the absence of testimony showing a special or peculiar value to the principal, but will be liable only for the fair market value of said samples at the time they are sold.</p> <p>i. NEW TRIAL — -Assignment of Error — Impeachment of Verdict. Upon grounds of public policy, jurors will not be heard by affidavit, deposition, or other sworn statement to impeach or explain their verdict, to show on what ground it was rendered or that they made a mistake, misunderstood the law or the result of their finding, nor permitted to show what items entered into the verdict, nor how they arrived at the amount. Jurors will only be heard in support of their verdict or conduct when same is attempted to be impeached.</p> <p>(Syllabus by the Court.)</p>

Error from County Court, Creek County; Warren H. Brown,, Judge. Action brought in justice court by Andy Combs against L. IT. Everett. Judgment for plaintiff on appeal to the count)’ court, and defendant brings error.

Error from District Court, Greer County; G. A. Brown, Judge. Action by Wm. Cameron & Company against B. B. Henderson. Judgment for defendant, and plaintiff brings error.

Error from County Court, Texas County; W. C. Crozv, Judge. Action brought in a justice court by the Van Arsdale-Osborne Brokerage Company against M. G. Wiley. Judgment for defendant on appeal to the county court, and plaintiff brings error.

<p>1. PRINCIPAL AND AGENT — Authority of Agent — Declarations— Exceptions. The general rule is that declarations of an alleged agent, standing alone, are incompetent to establish agency; but one of the exceptions to this rule is that where the suit by the principal is based upon a contract entered into by an assumed agent, his declarations in making said contract are competent testimony.</p> <p>2. SAME — Question for Jury. Where the facts upon the question of agency are controverted, it becomes an issue to be determined by the jury from all the facts and circumstances.</p> <p>3. APPEAL AND ERROR — Verdict — Sufficiency of Evidence. If there is any testimony reasonably tending to support the verdict of the jury, and the verdict has been approved by the trial court, the judgment will not be disturbed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Time for Taking Proceedings — Dismissal. ■ The syllabus in Gaskin v. Cleveland. Woolen Mills, .38 Okla. 229, 32 Pac. 821, is made the syllabus hére.</p> <p>(Syllabus by the court.)</p>

<p>Appeal from Order No. 557 of the Corporation Commission, requiring the appellants to erect a viaduct on First street in the city of Tulsa, Oklahoma.</p>

<p> Error from District Court, Tulsa County; </p> <p> L. M. Poe, Judge. </p> <p>Action by Simeal James, a minor, by Serena James, his guardian, against George K. O’Neil and the Okla. Oil Company. Judgment for plaintiff, and defendants bring error.</p>

Brror from County Court, Tillman County; T. B. Campbell, Judge. Action by W. R. Bennett against C. W. Jones and D. D. Shofner as individuals, and Jones & Shofner, copartners, composed of C. W. Jones and D. D. Shofner.' Judgment for plaintiff, and defendants bring error.

<p> Error from County Court, Tulsa County; </p> <p> N. J. Gubser, Judge. </p> <p>Action by W. J. Darnell against Harvey Plume and others. Judgment for defendants, and plaintiff brings error.</p> <p>This is a proceeding in error from the county court of Tulsa county. A petition in error was filed in time attached to case-made. The suit originally was before a justice of the peace for unlawful detainer of the N. E. of the S. W. % of section 1, township 17 north, range 14 east. The parties occupy the same relation in this court that they did in the court below. On the trial of said cause in the county court plaintiff introduced his lease or rental contract between himself and one Henrietta vSarty, who is a one-half blood Creek Indian. This lease, or rental contract rather, was dated the 26th day of November, 1910, to go into effect January 1, 1911, for a period of one year. At the trial this lease was introduced by plaintiff Darnell. Darnell, before taking the lease or rental contract from Plenrietta Sarty, examined the records of Tulsa county, but found no record of a lease from her or any other person for the same land. His evidence is, however, that he saw the defendants below, now defendants in error, in possession of said land and using it, but he made no inquiry of them by what right or authority they were holding possession and using the same. On January 4, 1911, he caused notice to be served upon the defendants to vacate the premises and they refused to do so. As said before, he began his action before a justice of the peace, and the judgment of that court was appealed from to the county court.</p> <p>At the trial in the county court, Henrietta Sarty, the allot-tee, testified that in 1909, she gave Mr. Weer a five-year lease on the premises, and that Mr. Weer held the land for 1910. Mr. J. E. Weer testified that he had the lease spoken of by Henrietta Sarty for five years and went into possession of said premises for the year 1910 under said lease, and learning his five-year lease was no good because the land was the homestead of the said Henrietta Sarty, she being, as stated, a one-half blood Creek' Indian, and desiring to keep the land for the year 1911, he made a new agreement on August 6, 1910, with Henrietta Sarty for the year 1911, and said agreement was written on the back of the former lease, but that the writing was lost; he testifying that it was substantially in the following words:</p> <p>“Weer, Oklahoma, August 6, 1910.</p> <p>“It is hereby agreed that J. E. Weer is to have the within land for the year 1911. It is further understood that said J. E-Weer has a right to sub-let the said premises.”</p> <p>Which written agreement was signed by Henrietta Sarty and himself. All this was fully testified to by him, but this was denied by the allottee. And Weer also testified that he paid her in full, in the presence of the Indian agent, for the year 1911 and obtained a receipt therefor; and, while she testifies in a negative way that she did not sign the receipt herself, yet she does not' deny affirmatively that she received the money and goods from Weer as rent, and, also states that the Indian agent decided that Weer was entitled to the land for the year 1911. Under this state of facts, the defendants, who are also tenants of Weer for the year 1910, sub-let from Weer for the year 1911 the premises and were in possession of the same under the subletting from Weer when notice was served upon them by the plaintiff to vacate. which they declined to do. Weer had previously testified that the lease for the year 1911 between him and the allottee was independent of the old lease, and was a separate agreement between them for the jrear 1911. Hence, this action for forcible entry and detainer. At the trial it was the contention of plaintiff, in error that the transaction between Weer and the allottee was a lease for five years and not approved b'y the Secretary of the Interior, and, therefore, void under the act of Congress of 1908. Per contra, the contention of the defendants was, that by the agreement between Weer and the allottee, the lease was made in August, 1910, for one 5ear to begin January 1, 1911.</p> <p>At the trial, the court instructed the jury, at the instance oc plaintiff, that the case was one for the possession of land, and, under the law, the title to the same could not be put in issue, and it was for the jury to decide who is entitled to the possession of the land, and that only, and that the right of possession is the only issue that can be determined. The court further instructed, at the instance of plaintiff, that in order for the plaintiff to recover he must show he had a perfect right to possession in January, 1911, at the time he gave notice to the defendants to quit and deliver possession to him, but in order to recover it is not necessary for the plaintiff to have been in the peaceable possession of the land prior to the bringing of this suit, and all that was necessary for him to show was that he had the right to possession on the day that notice was given by him to the defendants to quit. Further, that if the jury found those facts under this principle of the law requested by plaintiff’s counsel, the verdict should be for the plaintiff. Pie gave, at the defendants’ instance, the following instructions, that should the jury find by a preponderance of the evidence that at the time the plaintiff Darnell took the lease from Henrietta Sarty, upon which he relies for possession, the defendants, or either of them, were in the actual, open, visible, notorious, and exclusive possession of the premises in controversy, then, and in that avent, the plaintiff was bound to inquire of the parties in possession of said premises as to his interest in said property, etc. These instructions were given at the request of both parties and no exceptions reserved to the same.</p> <p>The verdict of the jury was that the defendants were entitled to the possession of the land, and that they were not guilty. Judgment was entered upon said verdict. Motion for new trial was filed by the plaintiff, heard and overruled, and the case comes here upon the record as substantially stated heretofore.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Suit by J. J. Rambo and others against the City of Muskogee and others. Decree for plaintiffs, and defendants bring error.

Error from District Court, Murray County; R. McMillan, Judge. Action by Nellie Short against F. C. Hoehler and another, doing business as Hoehler & Cummings. Judgment for plaintiff, and defendants bring error.

<p>1. CARRIERS — Passenger—Payment of Pare. The faet that no fare was paid for a child by the person in charge of her upon the train did not prevent her from being a passenger, where she was riding with the knowledge and consent of the conductor.</p> <p>2. SAME — Injuries to Passenger — Burden of Proof. Evidence tending to show the occurrence of a lurch or a jerk' of a passenger train of sufficient violence to throw from the seat, whereon she was quietly sitting as a passenger, a child five years old, and to almost throw from their seats two adult passengers, justifies an inference of some breach of the duty owed to the injured person by the carrier, and casts the onus upon it of relieving itself of responsibility by showing that the injury was the result of an accident which the exercise of due skill, foresight, and diligence could not have prevented.</p> <p>3. SAME — Question for Jury — Evidence. In such action, where the evidence of the plaintiff makes out a prima facie case, which is rebutted by the evidence on the part of the carrier, it is not error to refuse to take the case from the jury.. It is their duty to pass upon the credibility of the .witnesses and the weight of their testimony.</p> <p>4. INSTRUCTIONS APPROVED. Instructions examined, and held to be substantially correct.</p> <p>5. APPEAL AND ERROR — Excessive Verdict — -Evidence. Where there is nothing in the record to indicate that the action 'of the jury was in any way influenced by bias, passion, or prejudice against the losing party, we are precluded from setting their verdict aside as excessive.</p> <p>(Syllabus by the Court.)</p>

<p>1. GUARDIAN AND WARD — Invalid Lease by Guardian — -Ratification by Ward. Where a corporation leases a minor’s land from her guardian for oil and gas purposes, paying therefor to the guardian, for the use of his ward, $40 per acre bonus and an eighth royalty, and at the same time and as a part of the same consideration pays to the guardian, for his own use and benefit, $20 per acre for the improvement on the land, claimed by the guardian to be his property, when in fact such improvements were purchased with the money belonging to the ward, the ward may maintain an action against such corporation for a cancellation of the lease. But where such action is commenced by the ward after majority, and she sets out in her petition all of the facts relative to the fraudulent transaction between the corporation and her guardian, and verifies the same, and where such ward is a person of ordinary intelligence, if thereafter she voluntarily makes final settlement with her guardian, receiving from him valuable property and money, knowing said property and money to be the proceeds of such lease, such settlement is a ratification of the lease.</p> <p>2. TENDEE — Binding Effect. The party making a tender in the</p> <p>trial of a cause for the purpose of doing equity is bound by such tender.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Surplus Land — Bestrietions on Alienation — Heirs of Allottee. The restrictions contained in section 16 of the Supplemental Treaty with the Choctaw and Chickasaw Nations (Act July 1, 1902, e. 1362, 32 St. at L. 643), of one, three and five years, upon alienation of surplus lands of allottees, selected during the life of the allottee, ran with the land, and prevented the heirs of a deceased allottee of such land from alienating the same before the expiration of said periods.</p> <p>2. SAME — Allotments—Alienation—Buie of Property. The doctrine of rule of property cannot be applied to render valid conveyances made in violation of governmental policy.</p> <p>3. CHAMPEBTY AND MAINTENANCE — Ejectment — Parties. Where land in the adverse possession of another is conveyed, the grantee may maintain an action in the name of his grantor to recover from the adverse holder.</p> <p>4. PABTIES — Adding New Parties — Amendment to Petition. Where the grantee of land, which, at the time it was conveyed to him, was in the adverse possession of another, brought suit in his own name to recover it, it was not error to permit him to amend his petition so as to join his grantor as plaintiff.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Marshall County; R. C. Allen, Assigned Judge. Action by D. L. Faulk and others against'the Board of County Commissioners of Marshall County, Oklahoma, and others. Judgment for defendants, and plaintiffs bring error.

<p>1. COURTS — Jurisdiction—Amount Involved. Where a suit is based upon a contract, the consideration being due, in determining whether or not the district court has jurisdiction under section 10, art. 7, of the Constitution, and under section 1978, Com.p. Laws 1909 (Rev. Laws 1910, see. 1816), the interest accruing upon said contract can be added to the principal, and when the two together exeeed the sum of $500, it comes within the jurisdiction of the district court.</p> <p>2. CONTRACTS — Pleading-—-Sufficiency on Demurrer. Where a petition is sufficiently explicit in pleading a contract and thereby raising an issue of fact upon which pleader would be entitled to recover in the case, such a petition is good upon demurrer.</p> <p>3. BROKERS — Action for Commission — Instruction. In a suit by brokers to collect their .commission upon a contract to procure a person who is ready, willing, and financially able to buy upon the terms and conditions authorized and contracted for between the brokers and defendant, an instruction which authorized the jury to find a verdict for the plaintiffs if they believed, from a preponderance of the evidence, that the plaintiffs did procure a person who was ready, willing, and financially able to purchase the property upon the terms and conditions authorized by defendant, and through no fault of the plaintiffs the defendant refused to carry out the contract on her p.art, is not subject to the criticism that before a recovery can be had the jury must find "Ibat the exact terms and conditions -were complied with, for, if the terms are complied with it includes a finding that the "exact” terms are complied with.</p> <p>4. APPEAL AND ERROR- — Findings of Fact. In a case where a lawful contract is entered into and where the evidence reasonably tends to support the findings of a jury upon instructions of the court properly advising the law, this court will not disturb the same.</p> <p>(Syllabus by the Court.)</p>

Frror from District Court, Jefferson County; Frank M. Bailey, Judge. Action by J. C. Hartsell against Isaac Roberts and L. C. Bowman. From a judgment sustaining. demurrer to plaintiff’s petition, he brings error. This was an action in replevin brought by J. C. Hartsell against Isaac Roberts and L. C. Bowman in the district court of Jefferson county to recover two horses and damages for their detention.

<p> Error from District Court,, Muskogee County; </p> <p> R. P. deGraffenreid, Judge. </p> <p>Action by Jennie Yarbrough against Josie C. Spaulding and T. M. Leslie. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Record—Case-Made—Time for Service. Where time for making and serving ease-made has expired, a purported order of the trial court, attempting to extend the time within which to make and serve a ease-made, is a nullity.</p> <p>2. SAME — Review—Dismissal. Where the only errors assigned in the petition in error are. “That said court erred in overruling plaintiff in error’s motion for a new trial,” and “That said court erred in sustaining defendant in error’s demurrer to plaintiff in error’s evidence,” held, no assignment of error is raised which may be considered on transcript without bill of exceptions or ease-made.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court Oklahoma County; ■ </p> <p> W. R. Taylor, Judge. </p> <p>Action by the State of Oklahoma on the relation 'of Lee Cruce, Governor, and others, as Commissioners of the Land Office, against M. Cornelius, Register of Deeds. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Creek County; </p> <p> Wade S. Stanfield, Judge. </p> <p>Action by the State of Oklahoma on relation of F. S. Lozier, as guardian of Josie Tiger, a minor, against H. H. Bogle and others. From an order of the court quashing the writ of mandamus, and overruling plaintiff’s motion to tax costs against defendants, plaintiff brings error.</p>

<p> Error from District Court, Tulsa County; </p> <p> L. M. Poe, Judge. </p> <p>Action between G. R. McCullough ánd others and Thomas Gilcrease. From the judgment, the parties first named bring error.</p>

<p>SCHOOLS AND SCHOOL DISTRICTS — Board of Education — Member —Election of Successor — Right to Hold Over, A member of a board of education for a city of the first class elected in 1912, pursuant to Comp. Laws 1909, see. 8014, has a right to hold over until his successor is elected and qualified pursuant to act May 22, 1913, which took effect January 1, 1914 (Sess. Laws 1913, art. 6, sec. 6, p. 525), and which, so far as inconsistent, repeals said section.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Tulsa County; </p> <p> L. M. Poe, Judge. </p> <p>Action by Toney Kostaehek against Joseph Gostachek. Judgment for defendant, and plaintiff brings error. On motion for allowance of alimony and attorney’s fees.</p>

<p> Error from-District Court, Tulsa County; </p> <p> L. M. Poe, Judge. </p> <p>Action by Toney Kostaehek against Joseph Kostaehek, for divorce. Judgment for defendant, and plaintiff brings error.</p>