Volume 41 — Oklahoma Reports

Error from District Court, Okfuskee County; John C amt hers, Judge. Action by Joe McCormick against Robert Holloway, a minor, and another for partition of land. From the judgment defendant Holloway brings error, and plaintiff files a cross-petition in error.

<p> Error from County Court, Noble County; L. B. Robinson, Judge. </p> <p>Action by School District No. 26, Noble County, Oklahoma, against L. A. Gilmer. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge. </p> <p>Action by I. B. Levy against R. S. Yarbrough and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by the Art Wall Paper Mills against J. W. Ripy & Son. Judgment for plaintiff, and defendants bring error.</p>

<p>1. LANDLORD AND TENANT — Rent —When Payable. Rent for use of agricultural lands, payable in a stipulated share of the crop grown thereon, is due and payable when the crop matures and is ready for harvesting or market.</p> <p>2. SAME — Instructions. In the trial of an action for rent by a landlord against a tenant, it is error to instruct the jury that the tenant has “a reasonable time” to pay the rent after removal of part of the crop from the xn'emises.</p> <p>S. SAME — Chattel Mortgages —• Priority of Lient. The statutory lien for rent given a landlord on crops grown on agricultural lands, by section 3806, Rev. L'aws 1910, is superior to a mortgage lien given by a tenant to a third X>arty on such crops, and may be enforced by attachment without regard to such mortgage. .</p> <p>(Syllabus by Galbraith, G.)</p>

<p> Error from County Court, Garvin County; W. B. Mitchell, Judge. </p> <p>Action by. G. A. Atwood against Will Graham and others on an account for labor performed and board and lodging of certain laborers. Judgment for plaintiff, and defendants bring error.</p>

Error from County Court, Garfield County; Winfield Scott, Judge. Action by Lewis Dievert, Director, and others, composing the School Board of District No. 79, Garfield County, against George Rainey and Geo. J. Emerick, on an injunction bond. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Hughes County; H. H. Rogers, Special Judge. </p> <p>Action by the Reel River Valley Cotton Company, Incorporated, against the J. W. Stalcup Mercantile Company, a partnership, to recover an excess paid on cotton sold and delivered. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court„ Cleveland County; R. McMillan, Judge. Action by Kemper Kimberlin, a minor, by his mother, Mrs. S. B. Kimberlin, against Frank Ephraim for damages on account of slander. • Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Muskogee1 County; Farrar L. McCain, Judge. Action by J. L. Wilde against the Farm Land Mortgage Company, a copartnership, and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Washington County; John J. Shea,, Judge. </p> <p>Action by Goldie Starbuck against Amos White, W. G. Sawyer, and others. Judgment for plaintiff, and defendants named bring error.</p>

<p>1. MANDAMUS — Petition—Sufficiency. A petition in mandamus to be sufficient, when challenged by demurrer, must contain allegations of fact which, taken' as true, affirmatively show that the person sought to be mandamused is under the clear legal duty of doing the thing it is sought to compel him to do.</p> <p>2. SAME — Physicians and Surgeons. Petition examined, and held insufficient.</p> <p>3. PHYSICIANS AND SURGEONS — Bight to License Without Examination. Under section 39, art. 5, of the Constitution (Williams’ Ann. Ed,), a physician who had been practicing medicine in Oklahoma Territory under a territorial license is not entitled, as a matter of right, to registration since statehood without examination, where it is shown that on September 12, 1907, the territorial Supreme Court' had affirmed the decision of the district court, in a suit brought by the territory, canceling and annulling the territorial license under which such physician had been practicing on the grounds of fraud and deceit in procuring the same, and no other license had been issued him.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. MASTER AND SERVANT — Defense—Acts of Independent Contractor. A person cannot employ another person to do for him, as an independent contractor; an unlawful thing, and thus escape the consequences of the unlawful act -when sued for. damages occasioned thereby.</p> <p>2. DAMAGES — Measure—Destruction of Crop. In a suit for damages .for the destruction of a growing crop, such damages are to be estimated as of the time of the injury, and the measure to be applied is compensation for the value of the crops in the condition in which they were at the time of their destruction.</p> <p>3. SAME — Growing Crop — Determination of Value. In arriving at the value of a growing crop, it is proper to show by evidence the probable yield under proper cultivation, and the value of such probable yield when matured, gathered, prepared, and ready for sale; also the probable cost of proper cultivation necessary io mature the crop, as well as the cost of its gathering, preparation, and transportation to market. The difference between such probable value in the market and the cost of finishing the cultivation, and gathering, preparing, and transportation to market will ordinarily represent the value at the time of loss with as much certainty as any other method.</p> <p>4. SAME. The value of the labor bestowed on a growing crop in bringing it forward to the time of its wrongful destruction does not ordinarily afford either a sufficient or safe measure of the damages occasioned by its loss.</p> <p>5. RAILROADS- — -Injuries Incident to Construction — Damage to Crops — Animals. In a suit for crop damage, wherein it is alleged that defendant railway unlawfully entered upon the land, and tore down and destroyed the 'fencing, thus permitting animals to destroy the crops, and the evidence of plaintiff shows that defendant, through persons acting for it, did break plaintiff's fence, and enter upon lands of which he was m the rightful possession, and because of such breaking of and leaving down the fencing the crops were destroyed, a prima facie case is made; and in the absence of evidence upon the part of defendant that it had acquired in some way á right . • of way over the land, and thereby had a right, to break and enter, a verdiet for plaintiff will not be disturbed.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Marshall County; J. W. Faulkner, Judge. Action by J. T. Couch against J. F. O’Brien to recover on two- promissory notes. Judgment for defendant, and plaintiff brings error.

Error from District Court, Washington County; T. L. Brown, Judge. Action by the Sun Drilling Company against the Atchison, Topeka & Santa Ee Railway Company and another for damages. From a judgment against it, the Atchison, Topeka & Santa Ee Railway Company brings error.

<p>1. SET-OFF AND COUNTERCLAIM — Action in Tort — Bills and Notes — -“Set-Off.” Under the statute which limits the use of a set-off thus, ‘ ‘ A set-off can only be pleaded in an action founded on contract, and it must be a cause of action arising upon contract or ascertained by the decision of a court,” a defendant, when sued in tort for damages for the wrongful conversion of a span of mules, cannot use a note given by plaintiff to a stranger to the suit, assigned to defendant, as a set-off.</p> <p>2. SAME — “Counterclaim.” Neither, in such suit, can the notes be used as a counterclaim, under a statute providing that ‘ ‘ a counterclaim * * " must be one existing in favor of a defendant and against a plaintiff, between whom a several judgment might be had in the action, and arising out of the contract or transaction set forth in the petition as the foundation of plaintiff’s ' claim or connected with the subject of -the action,” where the note does not arise out of, and is in no way connected with, and has no relation to, the contract or transaction made the basis 'of plaintiff’s suit, and which does not come under certain exceptions mentioned in the statute.</p> <p>3. SAME. Neither can such note be set up, in such suit, as a basis for affirmative relief, when it is not concerning the subject of plaintiff’s action, is in no way related to or connected therewith,, and where it is not necessarily or properly involved in the action for a complete determination thereof, or settlement of the questions therein involved.</p> <p>-.4. TROVER AND CONVERSION — Measure of Damages — Right to Elect. In a suit for damages for the conversion of a span of mules, ordinarily the measure of the damages is the fair market value of the mules at the time and place of the conversion, together with lawful interest thereon, and a fair compensation for the time and money properly expended in pursuit of the property. However, if plaintiff has prosecuted his suit with diligence, he -can elect to have as his damages the highest fair market value •of the property at any time between the conversion and the verdict, without interest, together with proper cost of pursuit.</p> <p>5. APPEAL AND ERROR — Cure of Error — Evidence—Elements of Damage. An error in the improper admission of evidence as to nonrecoverable elements of damage is cured when the court’s instructions forbid a recovery of any sum on account of such improper elements.</p> <p>6. SAME — Harmless Error — Verdict — Rendition. In a suit commenced prior to statehood, though tried after the erection of the state, the parties were entitled, as a matter of law, to a rrnanimous verdict of the jury, and an instruction that nine of the jury concurring could return a verdict was erroneous; but, where the verdict notwithstanding such instruction was unanimous, it was error without injury.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Brror from District Court, Rogers County; T. L. Brown„ Judge. </p> <p>Action by Franklin P. Mitchell against Foster Baltz. Judgment for plaintiff, and defendant brings error.</p>

<p>FORCIBLE ENTRY AND DETAINER — Right of Action — Procurement of Possession. Plaintiff was in possession of the land in controversy by his tenants. At the expiration of the term of his tenants, but before they had left the premises, the defendants, claiming to have rented the land from another claiming the land by title superior to plaintiff, moved upon the land without objection from plaintiff's tenants, and took entire possession as soon as plaintiff’s tenants moved away, and refused to surrender possession on demand. Held, that plaintiff could maintain an action of forcible entry and detainer for the land.</p> <p>(Syllabus by Rosser, C.)</p>

Error from District Court, Grady County; Prank M. Bailey, Judge. Action by E. A. Vaughan and Irene Vaughan, his wife, against George W. Holder, to quiet title. Judgment for defendant, and plaintiffs bring error;

<p> Error from District Court, Choctazv County; . Tom D. McKeozvn, Judge. </p> <p>Action by G. W. Dodd against R. L. Cook. Judgment for defendant, and plaintiff brings error.</p>

<p>1. NEW TRIAL — Motion—Amendment. A motion for a new trial may be amended, after the three days allowed by the statute for filing the motion, by a clearer, more appropriate statement or elaboration of the grounds originally set up; but such an amendment, filed after the statutory time has expired, cannot set up new and independent grounds therefor.</p> <p>2. APPEAL AND ERROR — Discretionary Ruling — Granting New Trial. The discretion of the trial court in granting a new trial is so broad that its action in so doing will not be disturbed on appeal unless the record shows clearly that the court has erred in the decision of some clear and unmixed question of law, and that the order granting the new trial is based upon such erroneous view of the law.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Comanche County; /. T. Johnson, Judge. Action by Blenry Schafer against the Midland Hotel Company, a corporation, and another. Judgment for defendants, and plaintiff brings error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Cubie, Heimann & Co., a foreign corporation, against C. F. Kibby, for debt. Judgment for plaintiff, and defendant brings error.

Error from District Court,, Muskogee County; R. P. de Graffenreid, Judge. Action by H. P. Showalter against B. V. Leonard, administrator of the estate of Granville Ryles, deceased. Judgment for defendant, and, from an order granting a new trial, he brings error.

<p> Error from District Court, Ottawa County; Preston C. Davis, Judge. </p> <p>Action by Ella Parkinson against the Big Jack Mining Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. INSURANCE — Fraternal Benefit Society — Effect of Regulations— Contract of Insurance. The terms of a contract between a fra- , ternal benefit society and its members are to be determined by the constitution and laws of the society as they exist at the beginning of the membership, and as they may be lawfully amended from time to time thereafter, and by agreement made pursuant thereto between the incoming members and the society.</p> <p>2. SAME — Power to Change Regulations. The power accorded to such a society in its charter to alter and repeal its constitution, bylaws, rules, and regulations enters into and forms part of the contract of insurance between the society and its members, when the latter, as applicants for membership, promise not only to conform to and abide by the constitution and laws of the society as they then exist but also as they may be thereafter altered or amended.</p> <p>3. SAME — Right to Change Regulations. Such reserve power of amendment and repeal does not, however, give the society any right to adopt a by-law which will divest, impair, or disturb the rights once vested in its members, for such a by-law would be unreasonable.</p> <p>4. SAME — Fraternal Benefit Certificate — Rights of Beneficiary. A beneficiary named in a fraternal benefit certificate only acquires a vested right in the benefits accruing thereunder on the member’s death.</p> <p>5. SAME — -Fraternal Benefit Society — Amendment to By-Laws — Effect of Death of Beneficiary. Though a benefit certificate, naming the member’s mother as beneficiary, provided that, in case of death of the beneficiary before death of the member, and a failure by him to designate another beneficiary, the benefit should be paid to his heirs, and a like provision was in the by-laws in force when the certificate was issued; yet, it being provided in the application that the association’s laws “now in force or hereafter enacted” enter into and become a part of every contract between it and a member and govern all rights thereunder, and it being declared by the by-laws a purpose of the association to furnish indemnity to the beneficiaries of members, “in accordance with the articles of association, by-laws, rules and regulations” of the association, not inconsistent with the laws of the state, a change in the by-laws, whereby, on death of the named beneficiary and failure of the member to make a new designation, his wife at the time of his death should take, in jireferenee to his heirs, being reasonable and in harmony with the general purpose of the association, and not in derogation of any right secured to him, and fully authorized by the terms of the contract, governed.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge. Action by Max Frank and others, doing business as the Michigan Leather Company, against V. Veverka. Judgment for plaintiffs, and defendant brings error.

<p>INSURANCE — Action, on Policy — Petition—Election to Cancel. In an action on a fire insurance policy containing the following clause: "This entire policy shall be void at the election of the company, if, without the consent of the secretary or general agent of the company indorsed thereon, any other insurance is now or shall be taken out on any of the property above described," — where the answer alleges a violation of this clause by the insured in taking out additional insurance on the same property covered by the policy in suit, without the knowledge or consent of the company, but fails to allege a compliance with the terms of the policy which prescribes that in case the company elects to cancel the policy it shall do so "by returning to the assured the pro rata unearned premium, if it has been paid, or, if not, by indorsing the amount thereof on any unpaid premium note and giving written notice thereof to the assured,” and does not allege payment or tender to the assured the pro rata unearned premium, and the giving of written notice to the assured, does not sufficiently plead an election on the part of the company to declare the policy void.'</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. USE AND OCCUPATION — Kents—Right to Recover. In an action brought by the owner of real estate, entitled to the possession thereof, against the occupant, to recover for the use and occupation of the lands occupied, it is not necessary to allege in the petition either that the relation of landlord and tenant existed between the parties or that there was any contract between them, either express or implied, to pay rent.</p> <p>2. SAME. Under our statute (section 4094, Comp. Laws 1909 [Eev. Laws 1910, see. 3802]), the occupant of lands is, without special contract, liable for the payment of rents to any person entitled to the same.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by H. Bantoek against the Walters National Bank, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. RAILROADS — Action for Killing Cattle — Duty to Fence — Question for Jury. By statute (section 1389, Comp. 'Laws 1909, section 1435, Rev. Laws 1910) it is made the duty of railroad companies to fence their roads, except at public highways and station grounds, with a good and lawful fence.</p> <p>2. SAME. 'Whether a certain place constitutes a part of the station grounds, or a public highway, where the railroad company is by statute exempt from maintaining a fence, is a question of fact for the jury trying the case.</p> <p>3. SAME — Killing of Animals — Sufficiency of Evidence. The fact that the evidence- may show that the cattle were hilled at a railroad crossing!, relatively near -a station platform, is not sufficient proof that the lulling occurred either at a public highway or a station grounds.</p> <p>4. DAMAGES — Killing of Cattle — Evidence of Value — Sufficiency. The testimony examined and held sufficient to prove the marhet value of the animals killed and injured.</p> <p>5. HIGHWAYS — “Piiblic Highway.” A “public highway,” as distinguished from a private road, is one which is open to the travel of the public. It. is the right to travel upon it by all the world, and not the exereise of the right, which makes it a public highway.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. PLEADING — Motions—Judgment on Pleadings. A motion for judgment on the pleadings should be denied where the pleadings raise a question of fact to be tried.</p> <p>2. CARRIERS — ‘ ‘ Passenger’ ’ • — ■ Rights — Contributory Negligence. Kerns made and entered into a special shipment contract with the railroad company covering transportation of a car of household goods and live stock. As consideration for the feeding, watering, and earing for the live stock, Kerns was given free transportation. The special contract provided, among other things, that Kerns should have the sole care of said live stock and should feed, water and otherwise care for them; that he would remain in the caboose attached to said train, while the train was in motion and would not get on or off any freight ear while switching was being done at stations. Held:</p> <p>(a) That Kerns was a passenger,, the consideration for his passage being the care given the stock.</p> <p>(b) That as such he was entitled to the highest reasonable and practicable skill, care, and diligence from the railroad company.</p> <p>(c) That in the discharge of his imposed duty under the contract he had a right to enter the car at a station, at noon, for the purpose of feeding .and caring for the stock.</p> <p>(d) That he, having no control of the movement of the cars, or the train, violated no valid term of said contract b> being in said car as aforesaid while the same was being switched.</p> <p>3. TRIAL - — ■ Instructions — Assuming Facts. Instruction examined and held to be a correct statement of the law under the facts of the case.</p> <p>4. APPEAL AND EROR — Verdict—Evidence. Evidence examined, and held sufficient to sustain the verdict.</p> <p>(Syllabus by Robertson, C.)</p>

<p> Error from District Court, Marshall County; James R. Armstrong, Judge. </p> <p>Action by Mabel V. Long against the St. Louis & San Erancisco Railroad Company, a corporation.. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PLEADING — Judgment on Pleadings — Effect of General Denial. A motion for judgment on the pleadings was properly overruled, in an action 'in replevin, where the answer contained several defenses in addition to a general denial. The general _ denial raised an issue of fact, and did not render the pleading inconsistent, no matter what the other defenses may have been.</p> <p>2. SAME. Ordinarily a motion for judgment on the pleadings is proper where the answer admits, or leaves wholly undenied, the allegations of the petition; but in replevin a general denial puts in issue every fact pleaded, and in such case a motion for judgment on the pleadings should be overruled.</p> <p>3. DAMAGES — Breach of Contract — Damages Recoverable. Loss of profits, or damage to a crop, if within the contemplation of the parties at the time a contract is made, and was such a loss or damage as flowed directly or proximately from the breach of such contract, and is capable of accurate measurement or estimate, is recoverable in an action for damages for the breach of such contract.</p> <p>4. CHATTEL MORTGAGES — Assignee of Mortgage — Equities Between Parties. In an action in replevin by the assignee of a nonnegotiable note and a chattel mortgage against the mortgagor to foreclose the chattel mortgage, it is competent to prove failure of consideration and damages caused by the fault of the original payee; such evidence is permissible only to defeat the assignee's right of possession, and not for the purpose of recovering damages from him.</p> <p>5. REPLEVIN — Measure of Damages — Wrongful Detention. The measure of damages for the wrongful detention of a team of work mules is the usable value thereof during the time they were wrongfully detained.</p> <p>(Syllabus by Robertson, C.)</p>

Error from County Court, Marshall County; J. W. Ealkner, Judge. Action in replevin by the First State Bank of Mannsville against A. P. Lawson and others to recover possession of personal property for the purpose of foreclosing -a chattel mortgage thereon. Judgment for defendants, and plaintiff brings error.

<p>1. NEGLIGENCE — Landowner-—Duty to Trespasser. A landowner owes a trespasser a duty, in respect to safety from dangerous artificial condition of premises, not to injure him intentionally or wantonly.</p> <p>2. MUNICIPAL CORPORATIONS — Negligence — Dangerous Premises — Actionable Negligence — Matters Considered — “Wantonness.” A mere omission, although superficially characterized by mere thoughtlessness or heedlessness, but, in its deeper explanation, ' involving a reckless disregard for the safety of merely technical and reasonably anticipated trespassers, such as children of tender years, especially if unconscious trespassers, in respect to obviously and seriously dangerous artificial condition of premises, may amount to wantonness in a landowner; but the attractiveness and accessibility of the place or thing involving such danger and the probability of such trespassers, vthe gravity of the danger in such condition, the length of time such condition has existed, the smallness of cost and of deprivation of beneficial use involved in eliminating same, and the reasonableness of the inference that the landowner, as a person of ordinary sensibilities and prudence, knew or should have known of, and under all the facts and circumstances in the ease should have eliminated such danger, are proper considerations in determining whether there was such reckless disregard for the safety of such trespassers.</p> <p>3. DEATH — Negligence—Contributory Negligence — Infant Trespasser. A child under seven years of age, or in the absence of evidence of capacity, between seven and fourteen years of age, is presumed to be incapable of guilt of more than technical trespass, as affecting question of duty of owner in respect to dan- . gerous condition of premises, and the character - of the trespass may be a circumstance to be considered by the jury in ascertaining whether there is contributory negligence.</p> <p>4. SAME — Right of Action — Nature of Right. Section 4313, St. Okla. 1893 (section 5281, Rev. Laws 1910), does not operate as a continuance of any right of action which the injured person would have had but for his death, but confers upon the beneficiary thereof a property right in the pecuniary value to him of the life of his deeedent, and gives him a new or independent cause of action for the pecuniary loss he has sustained by reason of such death.</p> <p>5. SAME — Survival. A cause of action arising under section 4313, St. Okla. 1893 (section 5281, Rev. Laws 1910), has the quality of survivability, is not extinguished by the death of the beneficiary therein, and may be revived and prosecuted in the name of his administratrix.</p> <p>6. MUNICIPAL CORPORATIONS — Dangerous Premises — Injury to Trespasser — Petition—Sufficiency. A petition which does not allege facts from which a reckless disregard for the safety of reasonably anticipated technical, 'if not unconscious, trespassers, amounting to wantonness appears as a legal conclusion, nor the ultimate fact of reckless disregard for the safety of such trespassers amounting to wantonness, is not sufficient, as against a demurrer, to warrant a recovery of damages for death resulting to such trespasser from dangerous artificial condition of defendant’s premises.</p> <p>(Syllabus by Thacker, C.)</p>

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

<p>Error from County Court, Alfalfa County; E. M. Gustin, Judge.</p> <p>Action by Prank McMurtrey against John F. Bridges. Judgment for defendant, and plaintiff brings error.</p>

<p> Brror from Superior Court, Custer County; J. W. Lazvter, Judge. </p> <p>Action by George M. Ruble against W. E. Seibold and another. Erom a judgment in favor of plaintiff, defendant named brings error.</p>

<p>1. JUSTICES OF THE PEACE — Appeal—Bill of Particulars — Necessity — Replevin. Where, in. an action in replevin in a justice’s court, the affidavit for replevin contains everything that is necessary to be stated in a bill of particulars, and no objection is there urged, a subsequent objection that no bill of particulars had been filed, made on appeal to the county court, will not be deemed sufficient cause for reversal, though the court on appeal might properly have required the filing of new or amended pleadings.</p> <p>2. SAME — Pleading. The right to file new pleadings in the county * court, on appeal from a justice of the peace court, depends upon whether it is in furtherance of justice to permit such pleadings to be' filed, which is to be' determined by the county court in the exercise of a sound judicial discretion.</p> <p>3. TRIAL — Order of Proof — Discretion. The order in which evidence shall be received must to a great degree be left to the sound discretion of the trial court, and, unless it is made to ■ appear that such discretion has been abused, no reversal will be had.</p> <p>4. CHATTEL MORTGAGES — Priority of Liens — Payment of Prior Mortgage. Upon the voluntary payment of a chattel mortgage indebtedness by the mortgagor, a second mortgage on the property included in the original mortgage, eo instanti, becomes a first and prior lien thereon, -and the holder of such mortgage is entitled to recover possession of the mortgaged propertj^ according to the terms' of his mortgage.</p> <p>5. SAME — Stipulation Against Second Mortgage — Effect. A provision in a chattel mortgage that the mortgagor shall not make a second mortgage or lien upon the mortgaged property, without the written consent of the mortgagee, and such consent is neither asked nor given, does not thereby make void, as against one claiming under a second mortgage, a mortgage given in violation of said provision.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. JUDGMENT — Default—Pleading. There can be no judgment by default where there is on file an answer or other pleading raising an issue of law or fact.</p> <p>2. SAME. Before a default judgment can be properly entered, the answer or other plea, must be disposed of in an orderly way by motion, demurrer, or in some other manner.</p> <p>3. SAME — Limitations. A petition, to recover on a foreign judgment, on its face, clearly showed that the cause of action therein set crat was barred by the statute of limitations; an answer was filed specifically setting up the bar of the statute, which answer was not attacked by demurrer or motion; the court, on motion of plaintiff, in the absence of defendant and his counsel, entered a purported default judgment, and trial without a jury was had on the petition and answer; the only evidence introduced was certified copies of the petition, answer, reply, and judgment of the original trial court. Held, the defense of the statute of limitations, being well pleaded, and properly before the court, should have been by the court sustained, and there being no competent evidence before the court sustaining the purported cause of action, and the defense pleaded being full and sufficient, the court committed reversible error in entering judgment for plaintiff.</p> <p>(Syllabus by Robertson, 0.)</p>

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action for ejectment by-J. A. Baker against J. M. Perkins. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court,, Pittsbwrg County; Preslie B. Cole, Judge. </p> <p>Action by W.' W. Bowman against William E. Hailey and others. From judgment for plaintiff, defendants bring error.</p>

Error from District Court, Washita County; James R. Tolbert, Judge. Action by the El Reno Mutual Fire Insurance Company, a corporation, against Mrs. S. E. Sutton to vacate a judgment. Judgment for defendant on demurrer, and plaintiff brings error.

Error from District Court, Kay County; W. M. Bowles, Judge. Action for divorce and alimony by Clara B. Plildebrand against E. A. Hildebrand. Judgment for plaintiff, and defendant brings error.

<p> Error from County Court, McCurtain County; T. J. Barnes, Judge. </p> <p>Action by T. W. Smith against the St. Louis & San Erancisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by Bettie Segro against Eli Segro .and Willie Segro, minors under the age of fourteen years, and B. B. Bray, Oscar Easley, Claude Bray, Frank Shepard, W. M. Linley, Lewis Gray, and J. E. Smith, tenants of said above-named defendants. From a judgment in favor of plaintiff, defendants PI.

<p>SPECIFIC PERFORMANCE — Vendor and Purchaser — Rescission of Contract — Remedies of Vendor. W. sold S.' some city lots; they entered into a written contract in > which S. agreed to pay for the lots on the installment plan, he giving his promissory notes, due monthly, for the deferred payments, he also going into possession. W. agreed to convey when all payments should be completed. The contract contained many other provisions, among which was one to the effect that, in case of default on the part of S. in the payments, W. might keep all money paid, not as a penalty for the breach of the contract, but as liquidated damages for the use of the premises. S. decided to repudiate the contract, and refused to make payment of installments. W. sued on the past due notes in justice court. Held:</p> <p>(a) That such an action would'lie in W.’s favor.</p> <p>(b) That such contract could not be rescinded except by consent of both parties.</p> <p>(e) That W., in addition, might have specific performance as against S., but that he was not compelled to resort to that remedy before enforcing payment, in a5 court of law, of the unpaid installment notes.</p> <p>(d) That W. is not confined to one action for damages for breach of contract, but that that part of the contract providing for the installment notes was an independent and not a dependent or concurrent covenant, and, as such, could be enforced in an in-' dependent action.</p> <p>(Syllabus by Robertson, C.)</p>

Error from County Court, Pittsburg County; B. P. Hammond, Judge. Action by Jacob Oiler and F. C. Oiler, doing business under the firm name and style of the Oiler Heating Company, against James A. Whitcomb. Judgment for plaintiffs, and defendant brings error.

<p>1. APPEAL AND ERROR, — Review — Questions of Fact — Fraud. Fraud is a fact to be established as any other fact, and where a jury has passed upon the question, and there is any evidence in the record reasonably tending to support the verdict, the same will not be disturbed in this court on appeal.</p> <p>2. TRIAL — Instructions—Burden of Proof. Instructions examined, and held to correctly state the law applicable to the faets of this case.</p> <p>3. SAME — Refusal of Request. Where instructions given fairly contain the substance of an instruction refused, the refusal to give such instruction is not reversible error.</p> <p>(Syllabus by Robertson, 0.)</p>

Error from Superior Court, Pottaivatomie County; Geo. C. Abernathy, Judge. Action by C. Dale Wolfe, trustee of the estate of. D. A. Trotter & Co., against the Commercial Union Assurance Company, Limited, of London, England. Judgment for plaintiff, and defendant brings error.

<p>1. ASSAULT AND BATTERY- — Self-Defense—Injury to Bystander —Liability. It is error to instruct the jury in effect that one who, in his lawful self-defense, at dose range shoots at an assailant, and, missing him, accidentally wounds a bystander, who, at the time, is to one side of the line of true aim at sueh assailant, and a few feet away from him, is, in an action for damages, liable to such bystander if he knew or is chargeable with knowledge of the presence of sueh bystander,' as if this, of itself, constituted want of due care, and therefore was, per se, actionable negligence.</p> <p>2. SAME — Question for Jury. Ordinarily, where a person, in lawful self-defense, shoots at an assailant, and, missing him, accidentally wounds an innocent bystander, he is not liable for the injury, if guilty of no negligence; and the question of negligence is for the jury.</p> <p>(Syllabus 'by Thacker, 0.)</p>

<p>1. APPEAL AND ERROR — Presentation Below — Sufficiency. In a.motion for new trial the assignment, “error of law occurring at the trial and excepted to by the party making the application,” eighth subdivision, section 5033, Rev. Laws 1910, will embrace every ruling of the trial court during the trial of the cause properly excepted to at the time such ruling was made; but, unless the errors complained of were duly excepted to at th§ time and presented to the trial court in a motion for new trial, either in substantially the same language as the statute, or by specifically pointing- out -the. errors complained of, they cannot be presented to this court for review by being assigned in a petition in error. ' -</p> <p>2. ATTORNEY AND CLIENT — Peremptory Instruction — Pleading and Evidence. Plaintiff as executor sued defendant for the sum of $750, alleged to have been collected by defendant as attorney for the estate of which plaintiff was executor. Defendant answered, pleading that he had collected only $620, $220 of which was due him for fees and money disbursed, and that he had the balance, $400, in his possession. He testified to having collected $620, $220 of which he had spent as his own fee, and that he still had $400 belonging to the heirs of the estate. Held, under the admissions in defendant’s answer, and under defendant’s own testimony, it was not error to instruct the jury for a verdict in favor of the executor in a sum not less than $400.</p> <p>3. SAME — Action for Money Collected.— Instruction — -Attorney’s Fees. On the. question of the amount of fees due defendant for his services, the court instructed the jury as follows: “In. ascertaining the reasonable value of the attorney’s fees of defendant, in the litigation wherein said fees are claimed, you will consider the nature of the litigation, the amount involved, and the interest at stake, the capacity and fitness of defendant to render said services, the services and labor rendered by defendant, the length of time required to perform same, the benefit received by plaintiff from said litigation in the way of recovery, and you will look to all the evidence in the case and exercise your sound discretion and judgment thereon, and allow defendant such reasonable amount as you believe he is justly entitled to, not exceeding the sum of $200, the amount claimed by him.” Held, this instruction was not prejudicial to the rights of defendant.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. DAMAGES — Petition — Sufficiency. Where the petition, in an action for damages, contains sufficient statements of facts to show the court that plaintiff has sustained a detriment, and the amount thereof, and that defendant had wrongfully caused same, and that it is a detriment for which the law affords redress, such a petition states a > cause of action.</p> <p>2. PROPERTY — Ownership—Presumption From Possession. In the absence of evidence to the contrary, a presumption of ownership of real or personal property arises from the possession and control of such property.</p> <p>3. CARRIERS — Trial—Demurrer to Evidence — Damages to Shipment. A demurrer to the evidence admits every fact which the testimony, together with such inferences as may reasonably arise from the surrounding circumstances, reasonably tends to prove; and, in an action for damages, where the testimony, considered in the 'light of the surrounding circumstances, reasonably tends to show that plaintiff has sustained the amount of damages claimed, and that defendant had unlawfully caused such damages, a demurrer to the evidence is properly overruled.</p> <p>4. CARRIERS — Delay in Furnishing Car — Liability—Authority of Agents. The law does not require that a station agent be au- ■ thorized to contract with a shipper to furnish a certain kind of car at a certain hour of a certain day, in violation of prescribed rules of the company, and in discrimination against other shippers, but it .does require that he be authorized to furnish reasonable facilities within a reasonable time for carrying on the business of the public, either upon his own authority or upon his demand or notice to the company; and, where a car has been demanded by a shipper and promised by an agent, and a reasonable time taken for furnishing same, then,- in the absence of satisfactory showing for an unreasonable delay, the company will be held liable for the damages resulting from such delay.</p> <p>5. EVIDENCE — Competency- — -Value of Chattels.. Ordinarily the owner of chattels is qualified, by reason of that relationship, to give his estimate of their value, and where he qualified as knowing the market value of such chattels as hogs, sheep, cattle, and horses, it is not error to permit him to so testify.</p> <p>6. EVIDENCE — Competency—Transportation of Shipment — Reasonable Time. ' Where a party has been engaged in shipping stock from one point to another over a line of railroad for a period of ten years, during which time he shipped some 30,000 head of stock, and states that he knows the reasonable time required for making the trip, he should be permitted to so testify.</p> <p>7. CONSTITUTIONAL LAW — Verdict—Number of Jurors Assenting. “Where the cause of action arose before the adoption of the Constitution, but suit was not filed until afterwards, the constitutional provision permitting a verdict to be returned by three-fourths of the jurors applies.” C., R. I. & P. Ry. Co. v. Baroni, 32 Okla. 540, 122 Pae. 926.</p> <p>8. APPEAL AND ERROR — Presentation Below — Remarks of Counsel. Where the remarks of counsel are objected to by opposing counsel and objection is sustained by the court, and no exception is taken to the ruling of the court nor request made that the jury be admonished in reference thereto, a judgment will not be reversed because of the remarks complained of.</p> <p>9. TRIAL — Injury to Shipment — Instructions—Measure of Damages. The giving of the following instructions is assigned as error: “You are instructed that if you find that the plaintiff is entitled to recover for any damages to the sheep by reason of holding them while waiting for the car, as explained in the preceding instruction, such item of damage should be determined by you, finding the market value of the sheep in the condition they were when delivered at the destination, and then finding their market value in the condition they would have been in if the delay had not occurred at the stock pens at Hardy, Okla.; and then the difference between these two values would be the proper amount of damages, as to that item.” Held, this instruction, in the light of the entire charge, is not prejudicial to defendant’s rights.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. RELEASE — Personal Injuries — Fraud. This court will not hesJtate to set aside and avoid a release from damages in a personal injury case, where same has been obtained through fraud or misrepresentations upon the part of the defendant which have misled the injured party into signing same. But where the grounds relied on to avoid a written contract of settlement and release are fraud and misrepresentations in its procurement, the evidence as to the particular facts constituting the same should be clear and convincing.</p> <p>2. SAME — Right to Avoid — Grounds. A written contract cannot be avoided on slight or frivolous grounds.</p> <p>3. COMPROMISE AND SETTLEMENT — Validity and Enforcement. It is the policy of the law to encourage the settlement and compromise of controversies as a discouragement to litigation.</p> <p>(Syllabus by Brewer, C.)</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Evelyn McKellop against Susie Brison and another. Judgment for plaintiff, and defendants bring error, and from a denial of their petition for a new trial for newly discovered evidence, they appeal.

Error from District Court, Beckham County; John J. Carney, Judge. Action by Ellen Brady, and Elmer Brady, Johanna Brady, Adda Lillian Brady, and Bunyon Francis Brady, minors, by guardian ad l-item, against R. S. McWhorter, to recover possession of real estate. Judgment for plaintiffs. Defendant brings error. .

Error from County Court„ Pittsburg County; B. P. Hammond, Judge. Action by the Aetna Powder Company against the Crowder State Bank and another to recover money judgment. Judgment for plaintiff against the bank only, and the bank brings error.

<p>1. TELEGRAPHS AND TELEPHONES — Transmission of Message —Contract—What Laws Governs. In an action for damages _ . against a telegraph company for failure to properly transmit • a message, where the entire contract was made and fully executed, in the Indian Territory prior to statehood, the law in force in said territory at the time 'the contract.was made must 'govern.!</p> <p>2. SAME. Such a contract being an Indian Territory contract, the common law and the statutes extended in force in said territory by the United States are applicable thereto, and the decisions of the federal courts are binding on this court in such an action.</p> <p>3. SAME — Telegraph Companies. At that time telegraph companies in the Indian Territory were not common carriers.</p> <p>4. SAME — Contract Limitation of Liability — Validity. At that time and place telegraph companies had the right to contract concerning the transmission of messages and might contract to send them either at sender’s risk at a certain rate, or at the company’s risk, if the message was to be repeated, at a rate to be increased by one-half, or they might insure the correctness of transmission for an additional sum to be agreed upon.</p> <p>5. SAME. At that time and place a telegraph company could provide for its exemption from liability for error in unrepeated messages, in the absence of willful misconduct or gross negligence.</p> <p>6. APPEAL AND ERROR — Time for Appeal — Overruling of Demurrer. This court will review an order overruling a demurrer, although the statutory time for taking an appeal therefrom has expired, provided the proceeding in error to review the final judgment in the action has been commenced within the statutory period.</p> <p>7. SAME — Sustaining of Demurrer. Where a demurrer has been sustained, in order to .review the order sustaining same, the appeal must be had from such order within the statutory time for taking an appeal.</p> <p>(Syllabus by Robertson, 0.)</p>

<p> Error from District Court, Major County; </p> <p>Action by B. B. Marten against Dan Proehnau. Judgment . for plaintiff, and defendant brings error.</p>

Error from District Court, Seminole County¿ Tom D. McKeozvn, Judge. Action bj' Charley Evans, an infant, by C. T. Evans, his-father and next friend, against the Chicago, Rock Island & Pacific Railway company. Judgment was for the plaintiff, and the defendant brings error.

Error .from District. Court, Oklahoma County; John J. Carney, Judge. Action by James B. Price against George Salisbury for the recovery of the possession of land, and for damages. Judgment was for the defendant, and plaintiff brings error.

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where the plaintiff in error, as well as the defendant in error, fails to file and serve brief as required by rule 7 (38 Okla vi) of this court, it will be presumed that the appeal has been abandoned, and it should be dismissed.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Failure to File Briefs. Where the plaintiff in error, as well as the defendant iu error, fails to file and serve brief as required by rule 7 of this court (38 Okla. vi), it will be presumed that the appeal has been abandoned, and it should be dismissed.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court„ Okmulgee County; R. C. Allen, Judge. Action by George F. Gould against John E. Glass and another on debt and to foreclose a real estate mortgage on property located in the city of Okmulgee. The plaintiff served notice that he would, on a day named, present a motion and application to the judge of the district court at Sapulpa for the appointment of a receiver to take charge of the mortgaged property.

Error from County Court, Le Plore County; P. C. Bolger, Judge. Action by Troy Coker, by his father and next friend, Ed Coker, against George W. Terry. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Scope of Review — Failure to File Brief. Where the plaintiff in error has filed a brief, and the defendant in error has filed none, and has given no excuse for his failure, and upon examination of the record it appears that the errors asserted are well founded, this court is not required 'to search for some theory, or for authorities, that might possibly save the judgment appealed from.</p> <p>(Syllabus by Brewer, C.)</p>

Error from County Court, Adair County; W. A. Corley, Judge. Action by Mary J. Morris against the Bank of Stilwell and another for failure to pay check on presentation. From a judgment for the plaintiff, the defendant named brings error.

Error from District Court, Canadian County; John J. Carney, Judge. Action by Ceilan M. Spitzer and others against the City of El Reno and others. Judgment for the city, and plaintiffs bring error.

<p> Error from County Court, Cleveland County; F. B. Szvank, Judge. </p> <p>Action between G. P. Johnston and J. G. Marsee. From the judgment, Johnston brings error.</p>

<p> Error from District Court, Payne County; A. H. Huston, Judge. </p> <p>Action by the Colonial Trust & Savings Company against William Bunney on a promissory note. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Creek County; D. A. McDougal, Special Judge. Action by E. E. Lonsdale against J. L. Flint and others, for false imprisonment. Judgment for plaintiff against defendant Flint, and Flint brings error.

<p>1. DEATH — Action for Wrongful Death — Persons Entitled to Sue. The action for wrongful death can only be brought by the parties designated in section 4811 and 4612, Wilson's Rev. & Ann. St. 1903 (sections 5281, 5282, Rev. Laws 1910; sections 5945, 5946, Comp. Laws 1909).</p> <p>2. SAME — Joinder of Parties. Whore no personal representative is appointed, and the deceased left no widow, all the next of kin must join in the action.</p> <p>3. SAME — ’“Next of Kin.” By the term “next of kin” is meant all who would have been entitled to share in the distribution of the personal property of the deceased.</p> <p>4. SAME. Where the person for whose death suit is brought left neither widow nor children nor father surviving him, but left a mother and brothers and sisters, the brothers and sisters were next of kin within the meaning of the statute, and must be joined in the action.</p> <p>5. EVIDENCE — Declarations of Third Person- — Hearsay. In a joint action against an electric light company and a city for the wrongful death of a person caused by coming in contact with a charged guy wire, it was error to admit in evidence as against the light company a resolution of the city council reciting that the company was negligently permitting its wires to be in a dangerous condition, and instructing the city attorney to begin whatever proceedings against it he deemed necessary if it failed to place them in good condition after notice.</p> <p>6. NEGLIGENCE — Subsequent Repairs — Admission of Evidence. Evidence of alterations or repairs subsequent to an accident or injury is not admissible for the purpose of showing negligence in the original construction, or to show a confession of negligence.</p> <p>7. PARENT AND CHILD — Loss of Services of Child — Damages. In an action by a qmrent for the loss of the services of a minor child, the damage to the parent is limited to such as will compensate him for the loss of the child's services to the time of Ins majority, the reasonable amounts necessarily expended in rho treatment and care of the child, and the value of tlie parent's services while nursing the child; and the jury may consider thav. with age, growth, and experience the value of the child's services would increase, although they cannot consider that the child might, if not injured, engage in any particular calling.</p> <p>8. DEATH — Eight of Action for Wrongful Death — Statutes Conferring — “Detriment.” Comp. Laws 1909, sees. 2881, 2882, providing that every person who suffers detriment from the unlawful act or omission of another may recover damages therefor, and that “detriment” is a loss or harm suffered in person or property, does not confer a right of action for wrongful death; that right depending alone on Wilson’s Rev. & Ann. St. 1903, secs. 4611, 4612. ></p> <p>■0. SAME — Persons Entitled to Sue — Separate Action. Wilson’s Rev. & Ann. St. 1903, see. 4611 (Comp. Laws 1909, sec. 5945; Rev. Laws 19.10, sec. 5281), contemplates hut one action, and the same death cannot he sued for in separate actions by the various individuals sustaining damage thereby.</p> <p>10. SAME — Constitutional Provision. Const, art 23, see. 7, providing that the right of action to recover damages for injuries resulting in death shall never' he abrogated, and the amount recoverable shall not be subject to any statutory limitation, does not change the method of procedure in such cases.</p> <p>(Syllabus by Rosser, C.)</p>

<p>1. WATERS AND WATER COURSES — Railroads—Damages from Overflow — Instructions. Where the basis of a cause of action against a railway company is for damages resulting from an overflow caused by the defective construction of embankments, in that no adequate openings were left for the escape of water through its natural channels, a judgment will not be reversed because of a specific instruction as to the defective construction of a bridge over the water course along the line of railroad, although no specific complaint was made of the construction of the bridge in the pleadings, where such instruction has reference to no other defect, expept to the inadequacy of the open way through such embankment for the flow of water.</p> <p>2. APPEAL AND ERROR — -Verdict—Evidence. Where the law applicable to the facts material to the issues joined by the pleadings in an action is fairly and fully submitted to the jury by the court, a verdict of a jury based upon conflicting testimony will not be disturbed if it is reasonably supported by the testimony in the case.</p> <p>8. EMINENT DOMAIN — Recovery of Damages — Conclusiveness. The fact that a railroad company acquired a right of way by act of Congress prior to statehood, under the terms of which the land covered by such right of way was appraised and the damages arising from the ordinary inconveniences resulting from a railroad running across one's land were assessed, does not grant to such railroad company an absolute immunity forever against damages resulting to abutting land-owners from a negligent construction of railroad embankments across waterways.</p> <p>4. LIMITATION OF ACTIONS — Damages from Overflow — Railroad Embankment. An action against a railroad company for damages resulting from an overflow caused by the defective construction of the railroad embankments is not barred by limitation because such embankments have been constructed more than two years prior to the injury, but the time in which such action may be brought dates from the time the injuries are received and damages sustained.</p> <p>(Syllabus by Harrison, »C.)</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by the Jennings Company against Mamie Dyer, Frank Dyer, Salina Dyer, Eliza Dyer, L. D. Akers, Jimmie Speake, and Dow Taylor, administrator of the estate of A. W. Speake, deceased. From a judgment in favor of defendant Mamie Dyer, plaintiff brings error.</p>

Error from District Court, Okmulgee County; W. L. Barnum, Judge. Action by the Bank of Commerce of Coweta against A. C. Brady, Maude 'Brady, and R. E. Cook. From judgment for plaintiff and for defendant R. E. Cook, defendants A. C. Brady and Maude Brady bring error.

<p>1. EVIDENCE — Documentary Evidence — Daybook. Where, in a mercantile business, the usual course is for each salesman, at the time of the sale, to make a memorandum thereof in the form of a “ credit ticket, ’ ’ with carbon copy then delivered to the purchaser, and, at the end of each day, to deliver to the bookkeeper the original of such ticket, from which, on the same or next following day, the bookkeeper correctly, and in the usual course of said business, enters same in a daybook, such daybook is admissible in evidence, upon the testimony of the bookkeeper alone to the facts hereinbefore recited, under section 4277, St. Olda. 1893 (section 4574, Wilson’s Rev. & Ann. St. 1903; section 5907, Oomp. Laws 1909; section 5114, Rev. Laws 1910), if such daybook is a book of original entry.</p> <p>2. SAME — “Books of Original Entry”. Books of account, consisting of entries made at or near the time of the transactions to which they relate, and made directly from reports of salesmen in the form of written memoranda not compiled or preserved in book form nor otherwise in respect to convenience similarly available, are books of original entry.</p> <p>3. SAME — Books of Account — Probative Effect. A book of account, when admissible in evidence, even though free from inherent improbability, is only presumptive and disputable evidence of the correctness of the entries therein appearing.</p> <p>(Syllabus by Thacker, 0.)</p>

Error from District Court,, Alfalfa County; James B. Cullison, Judge. Mortgage foreclosure proceedings, brought by the Geiser Manufacturing Company against D. Puffinbarger and Rilla Puffinbarger, and to declare plaintiff’s mortgage prior and paramount to the interest or claim of the defendant McDuffie. Judgment for plaintiff, and defendant McDuffie brings error.

<p>APPEAL AND ERROR — Presentation for Review — Errors at Trial— Denial of New Trial. Where plaintiff in error fails to assign as error, in his petition in error, the overruling of a motion for a new trial, no question which seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such alleged errors cannot, therefore, be considered.</p> <p>(Syllabus by Sharp, G.)</p>

<p> Error from District Court, Blaine County; Jas. R. Tolbert, Judge. </p> <p>Action in replevin by the Oklahoma Moline Plow Company against O. A. Smith. From a judgment for defendant, plaintiff brings error.</p>

<p> Error from District Court, Garfield, County; James B. Cullison, Judge. </p> <p>Action by Noah L. Livingston against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Grant County; W. M. Bowles, Judge. </p> <p>Action by James Dorman against the Connecticut Eire Insurance Company, a foreign corporation. Judgment for defendant, error.</p>

<p>1. CONTRACTS — -Avoidance—ineompetency to Execute — Intoxication. A person so destitute of reason as not to know the nature or consequences of his act, although such mental condition be the result of his voluntary intoxication, may avoid a contract made by him at such time.</p> <p>2. NEW TRIAL — Motion—Essentials—Diligence. A motion for a new trial upon the grounds of newly discovered evidence may be denied if facts constituting due diligence to have discovered same in time for the trial had be not stated therein.</p> <p>3. APPEAL AND ERROR — Exceptions Below — Instructions. An instruction to the jury will not be considered here unless exception thereto was reserved in the trial court.</p> <p>4. SAME — Bills and Notes — Verdict—Sufficiency of Evidence. The sufficiency of the evidence to sustain a judgment will be determined in the light of the evidence tending to support same, together with every reasonable inference dedueible therefrom, rejecting all evidence adduced by the adverse party which conflicts therewith.</p> <p>(Syllabus by Thacker, C.)</p>

Error from District Court, Hughes County; John Cciruthers, Judge. Action by Lena McGirth, by her guardian, Eelix P. Canard, against Evans Scott and Alexander M. Butts. Judgment for plaintiff overruling demurrer, and defendants bring error. The plaintiffs in error filed in the United States Court for the Western District of the Indian Territory, at Wewoka, a will, purporting to be the last will and testament of Mongy McGirth, deceased, who died at Holdenville, Ind.

Error from District Court, Bryan County; Summers Hardy, Judge. Action by Margaret Ghromley, administratrix of the estate of Christopher E. Green, deceased, against the Modern Woodmen of America. Judgment for plaintiff, and defendant brings error.

Error from District Court, Creek County; W. L. Barnum, Judge.

<p>1. RAILROADS — Lien—Waiver. The provisions of mutual contracts between the plaintiff in error, its principal contractor and subcontractors, examined, and held that, under their terms, the right to a lien upon the railway company and its properties was not waived by a subcontractor, where the aetion was brought therefor after the award of the resident engineer had been published. Following Kansas City So. Ry. Co. v. Wallace, 38 Olda. 233, 132 Pac. 908, 46 L. E. A. (N. S.) 112.</p> <p>2. SAME — Lien for Construction — Subject-Matter. Under section 6166, Comp. Laws 1909 (Rev. Laws 1910, section 7803), any person other than the specific classes enumerated therein, who performed any work or labor upon or furnished any materials to facilitate the operation of any railroad, is entitled to a lien therefor upon the roadbed, buildings, equipments, income, franchises, and all other appurtenances. Following Kansas City So. Ry. Co. v. Wallace, supra.</p> <p>3. STATUTES — Construction—Buie of Ejusdem Generis. The rule of ejusdem generis is resorted to merely as an aid in construction. If, upon consideration of the whole law upon the subject, and the purposes sought to be effected, it is apparent the Legislature intended the general words to go beyond the class specifically designated, the rule does not apply. Moreover, where the particular words exhaust the class, then the general words must be given a meaning beyond the class. Following Kansas City So. Ey. Co. v. Wallace, supra.</p> <p>4. RAILROADS — Lien for Construction — Eight—Contractors and Subcontractors. Contractors and subcontractors, who bring themselves within the terms of the act, are included within the provisions of section 6166, Comp. Laws 1909 (Rev. Laws 1910, see. 7803), providing that “every mechanic, builder, artisan, workman, laborer, or other person, who shall do or perform any work or labor upon * * * any railroad, shall have a lien therefor upon the roadbed,” etc.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, Craig County; P. S. Davis, Judge. </p> <p>Action by J. G. English against the Bank of Big Cabin.Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Cherokee County; J. T. Parks, Judge. </p> <p>Action by J. S. Boyd against William Boorigie and William Ruttledge. From a judgment in favor of plaintiff, defendants bring error.</p>

Error from County Court, Sequoyah County; W. N. Littlejohn, Judge. Action by the First National Bank of ‘Sallisaw against C. ■B. Ballard, B. F. Moody, and W. H. Brackett, on promissory note. Judgment for defendants, and plaintiff brings error.

<p>1. INDIANS — Indian Lands — Establishment of Highways — Damages-Under section 37 of the Cherokee Allotment Act of July 1, 1902r c. 1375, 32 St. at L. 722, public highways two rods in width, being one rod on each side' of the section line, may be established along all section lines without any compensation being paid therefor, and. all allottees, purchasers, and others shall take the title to such, lands subject to said provision. But if the buildings or other-improvements are damaged in consequence of the establishment of such public highways, such damages shall be determined and paid: for as in said section provided and authorized.</p> <p>2. SAME. A road overseer is without authority to open up section, lines in the Cherokee Nation, on which are located orchards, houses,, and other valuable improvements, placed there before allotment, where the necessary result of his act would be to materially damage or destroy such orchards, houses, or other improvements,, without the damages thereto having first been determined and paid for.</p> <p>3. SAME — Injunction. Under such circumstances, injunction will properly lie to enjoin a threatened trespass to open up section» lines; no steps having been taken to determine the amount oír damage about to be done, or to pay therefor.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, McClain County; Robinson McMillan, Judge. </p> <p>Action by J. H. Stubblefield against the City of Purcell for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Pontotoc County; Con-way O. Barton, Judge. Action by the Farmers’ Loan & Trust Company against A. N. Loyd, D. C. Hybarger, F. O. Harris, and M. C. Lee. Judgment for certain defendants, and plaintiff brings error. On the 14th day of June, 1910, the plaintiff in error recovered a judgment against the defendants A. N. Loyd and D. C. Hybarger before a justice of the peace.

Error from Superior Court, Custer County; I. W. Lazvter, Judge. Action in replevin by Lydia L. Wallingford against C. B. Wood and the Bonebrake-Lacy Hardware Company. Judgment for the defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Dismissal—Brief. Where plaintiff in error has filed no brief, as required by rule 7 of this court (38 Okla. vi), the appeal will be dismised for want of prosecution.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

Error from County Court, Craig County; S. F. Parks, Judge. Action by Louis Zeno against Charles' Bazzell and others. Judgment for defendants, and plaintiff brings error. Plaintiff sued on a note for $500 alleged to have been made by the defendants Charles Bazzell and Clem Huelsenkamp to Will Devine and by Will Devine indorsed for a valuable consideration to the plaintiff, Louis Zeno.

Error from District Court, Canadian County; Geo. W. Clark, Judge. Action by Charles IT. Pratt against Nellie IT. Pratt. Judgment for plaintiff, and defendant brings error. On the 18th day of April, 1906, the defendant in error Charles PI. Pratt, brought an action for divorce on the grounds of abandonment, against the plaintiff in error, Nellie H. Pratt, in the district court of Canadian county, Okla., and procured service by filing an affidavit for service by publication.

<p>Original petition for writ of prohibition by the Howard Mercantile Company, a corporation, and T. B. Howard, president, against A. L. Squires, County Judge of Ellis County, State of Oklahoma, and Ray Sutton, Sheriff of Ellis County, State of Oklahoma.</p>

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Suit by Dora B. Montgomery against W. G. Montgomery for divorce, custody of minor child, and division of property. Judgment for plaintiff, and defendant brings error.

Error from County Court, Stephens County; W. H. Admire* Judge. Action by the Keystone Steel & Wire Company against J. P. Bledsoe & Son, a copartnership, composed of J. P. Bledsoe and George Bledsoe. Judgment -for plaintiff, and defendants-bring error.

Error from District Court, Tillman County; J. T. Johnson, J.udgb. Action by J. H. Crouch and wife against A. J. Laurie and Frank Carter, Sheriff, for injunction'... Judgment for plaintiffs, and defendants bring error.

<p> Error from Superior Court, Garfield County; Dan Huett, Judge. </p> <p>Action by W. W. English against the University Realty Company to recover commission for sale of real estate. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma County; James W. Steen, Assigned Judge. </p> <p>Action by John W. Brusha and another against the Board of Education of Oklahoma City. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. APPEAL AND ERROR — Subsequent Proceedings — Law of Case. The decision of the court of last resort, in a ease brought to it on appeal, becomes and remains the law of that case through all its subsequent stages and trials.</p> <p>2. SAME — Harmless Error — Submission of Issues on Attachment— Conflicting Evidence. Under the law in force in the Indian Territory prior to statehood, the question of sustaining or dissolving an attachment was for the determination of the court. And where a jury in the case, by direction of the court, sustains an attachment in its verdict, it is no more and no less than the decision of the court on that branch of the case. And where the evidence on that point is conflicting, the decision of the court thereon will not be disturbed.</p> <p>3. EVIDENCE — Parol Evidence — Lease. Where the parties have negotiated concerning the rental of land and have finally entered into a written contract of rental therefor, oral proof of a prior parol contract to repair the fencing is incompetent as tending to vary and contradict the terms of a written instrument.</p> <p>4. ATTACHMENT — Sustaining Attachment — Question for Jury— What Law Governs. Whether, in an action begun in Indian Territory before the admission of the territory to statehood, the sustaining of an attachment was for the court or the jury is to be decided by the law in force before the admission to statehood.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Payne County; A. H. Huston, Judge. </p> <p>Action by Wilbur Spencer against C. A. Minnick for libelous publication. Judgment for defendant, and plaintiff brings error.</p>

<p>1. PLEADING — Amendment. Amendment of pleadings in furtherance of justice may be allowed during the trial, when sueh amendment does not substantially change the cause of action or defense.</p> <p>2. SAME. In an action for conversion, where the answer is a general denial, and during the course of the trial evidence, tending to show the purchase of the propierty charged to have been converted and payment, is offered and excluded because not within the issues, and application is then made to the court for permission to amend the answer so as to plead purchase and payment, held, that it is error to deny such application to amend.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. MASTER AND SERVANT — Trade Unions — Right of Employee to Strike — Liability to Third Persons — Discharge of Non-Union Employee. Employees of a coal company, who are members of a labor union, have the right, when involved in a trade dispute between themselves and their employer, and growing out of this relation, to protest to their employer against the employment, or retention in his employment, of a non-union employee, and to accompany such protest with the statement that if'such non-union man is employed, or retained, the union employees will strike— that is, that such employees will simultaneously cease to work for such employer — and if such protest is not heeded, the union men have the lawful right to strike; and if it is heeded, the non-union man who is discharged has no cause of action against either the union as an organization, or the members thereof as individuals.</p> <p>2. SAME. A petition, based on the charge that the plaintiff, a nonmember of a labor union, was discharged from his employment because of the demands therefor made by the authorized agents and committees of a labor organization, who informed the common employer that if such non-union man was not discharged the union men would strike, does not state a cause of action' for damages against either the labor organization or the individual members thereof; and a demurrer to such petition was properly sustained.</p> <p>3. SAME — Right to Quit Employment — Strikes. Any man, in the absence of a contract to work a definite time, has a right to quit whenever he chooses, for any reason satisfactory to him, or without any reason. If his wages are not satisfactory, his hours too long, his work too hard, his employer or his employment uncongenial, or his colaborers objectionable, his right to quit is absolute. What an individual may do, a number of his co-laborers may join him in doing, provided the thing to be done is lawful.</p> <p>(Syllabus by Brewer, 0.)</p>

Error from County Court, Kingfisher Co%mty; John M. Graham, Judge. Application of F. E. Cross for a writ of habeas corpus against Viola Popham, to recover the custody of A. M. Cross (Butler). Order granting the writ, and defendant brings error.

<p> Error from District Court, Stephens County; Frank M. Bailey, Judge. </p> <p>Action by Horace J. Cox, administrator, against the Duncan Cotton Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kingfisher County; James B. Cullison, Judge. </p> <p>Action by Survannah M. Dodson against Charles E. Lamb. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Review—Conflicting Evidence. Where ' the evidence is conflicting, but fairly supports the verdict returned by the jury, such verdict will not be disturbed on appeal.</p> <p>2. SALES — Action on Note — Instructions as to Set-Off. Instructions examined, and held to fairly present the issues in the ease, and to correctly declare the law applicable thereto.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by the Smith Rolfe Company, a corporation, against R. G. Wallace. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Noble County; R. H. Eoofbourrow, Assigned Judge. </p> <p>Action by the Arkansas Valley & Western Railway Company against J. E. and Ed. J. Coyle. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Choctaw County; W. T. Glenn, Judge. </p> <p>Action by Olivia MeCallam against the Southwestern Land Company on a contract. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Carter County; S. II. Russell, Judge. Action by R. F. Turner and others against the City of Ardmore and others for an injunction. Judgment for plaintiffs, and defendants bring error.

<p> Brror from Superior Court, Custer County; J. W. Lazvter, Judge. </p> <p>Action in replevin by J. A. Maker against S. L>. Taft, Mary Taft, and-L. P. Taft. Judgment was for the defendants, and plaintiff brings error.</p>

<p>INDIANS — Allotment—Removal of Fencing. E. B. Johnson, a Chickasaw Citizen by blood, under a prevailing custom in the Chickasaw Nation, had inclosed and improved more land than he was permitted to select as allotment for himself and family. A part of the land thus inclosed and improved by him had been selected by and allotted to Mary J. Trueblood. After she had moved onto ■ the allotment, Johnson sought to remove the fencing which he had placed on and around same prior to allotment. Held, acting within a reasonable time, he had the right to remove his fencing.</p> <p>(Syllabus by Harrison, C.)</p>

<p> Error from County Court, Stephens County; W. H. Admire, Judge. </p> <p>Action by J. E. Cox against the Farmers’ State Bank and A. S. Bennett. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Sarah E. Walton and Louis F. Walton against W. L. Kennamer, G. S. Kemble, W. M. McCullough, and John M. Durell to set aside an order confirming sale under execution. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Hughes County; John Caruthers, Judge. Action by John W. Gilliland against Nicholas V. Bilby and others to quiet title. Judgment for plaintiff, and defendants bring error.

<p> Error from Superior Court, Muskogee County; Parrar L. McCain, Judge. </p> <p>Action by L. F. Flamm against H. L. Wineland and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Tillman County; J.-T. Johnson, Judge. Action by Oma Agnes Haveron, by her father and next friend, M. H. I-Iaveron, against A. F. Priboth. Judgment was for the plaintiff, and the defendant brings error.

Error from District Court, Garfield County; James B. Cullison, Judge. Action by T. S. Chambers against Frank S. Kirk and another. Judgment for defendants on the pleadings, and plaintiff brings error.

<p> Error from County Court, Hughes County; P. W. Gardner, Judge. </p> <p>Action by Cora Porter against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Cherokee County; J. E. Parks, Judge. Action by J. E. Cox against J. T. Kirkwood and twelve others. Judgment was for the defendants, and plaintiff brings error.

Error from District Court, Pontotoc County; S. H. Russell, Assigned Judge. Action by J. A. Lewis against W. C. Rea for rescission of contract, cancellation of deeds, and damages to cover payments made. Judgment for plaintiff, and defendant brings error.

Error from District Court, Beaver County; Theodore Pruett, Special Judge. Action by the Board of County Commissioners of Beaver County against J. W. Culwell and others. Judgment for the plaintiff, and plaintiff brings error.

Error from District Court, Beaver County; R. B. Dickson, Judg'e pro tem. Action by the Board of County Commissioners of Beaver County against J. H. Langston and others. Judgment for defendants, and plaintiff brings error.

<p> Error from County Court, Custer County; J. C. McKnight, Judge. </p> <p>Action by S. J. Hendrix against W. E. Whelchel. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND EBBOR — Review—Sufficiency of Evidence. Jn the trial of an action in replevin, the answer was, first, a general denial, and, second, an affirmative defense tending to defeat the right of the plaintiff to recover; the cause was submitted to the jury upon proper instructions as to the law arising upon the issues raised, and the verdict is supported by sufficient evidence; the judgment will not be disturbed upon appeal.</p> <p>2. BILLS AND NOTES — Alterations—Materiality. A promissory note executed January 2, 1909, containing the following clause: ."And in case of legal proceedings on this note I agree to pay 10% additional as attorney’s fees’’ — was nonnegotiable, and if after the execution of the note, and without the consent of the maker, such clause is eliminated by running a pen through the same, such elimination made the note negotiable, and sueh chango was a material alteration which rendered the note void as against the maker, even in the hands of a bona fide holder for value.</p> <p>(Syllabus by Galbraith, G.)</p>

<p>1. COUNTIES — Proceedings by Commissioners — Decisions Appealable. Where the county commissioners have advertised for bids to erect a bridge across a large creek on a section line, and on the date for opening the bids some private citizens and taxpayers appear before the board in session and orally "protest against the location of the bridge at the point named in the advertisement,” and the board overrules such protest, and proceeds to let the contract, held, that the action of the board on the protest was not a ‘ ‘ decision of the board on a matter properly before it, ’ ’ from which an appeal to the district court will lie, for the reason that such action was merely the exercise by the board of ministerial and administrative authority vested in it by the law.</p> <p>2. SAME — Appeal—Extent of Jurisdiction. Upon an appeal from the board of county commissioners, the district .court takes appellate jurisdiction only; same being confined to the jurisdiction the board had and none other, to an inquring, de novo, as to the very matter upon which the board was called upon to act. Such appeal cannot be converted into an action in equity so as to enlarge the jurisdiction beyond that of the inferior tribunal.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>1. CONVICTS — Capacity to Contract — Mortgage. Under our statutes a person convicted of a felony is not divested of all rights whatever and rendered absolutely civiliter mortuus, but may contract with an attorney or other person to obtain a parole, a pardon, or to sue for a writ of habeas corpus, and this, in the absence of an express statute to the contrary, or some express provision for the management of his estate, necessarily carries with it the right to dispose of his property in order to employ counsel.</p> <p>2. CIVIL EIGHTS — Definition—“Natural Eights’’ — “Civil Eights.” By the term “natural rights” is meant those rights which are necessarily inherent, rights which are innate and which come from the very elementary laws of nature, such as life, liberty, the pursuit of happiness, and self-preservation.</p> <p>By the term “civil rights,” in its broader sense, is meant those rights which are the outgrowth of civilization, which arise from the needs of civil as distinguished from barbaric communities, and are given, defined, and circumscribed by such positive laws enacted by such communities as are necessary to the maintenance of organized government, and the term comprehends all rights whieh civilized communities undertake, by the enactment of positive laws, to prescribe, abridge, protect, and enforce.</p> <p>(Syllabus by Harrison, 0.)</p>

Error from District Court, Cleveland County; R. McMillan, Judge. Action by E. A. Bethurem against the Norman Milling & Grain Company, a corporation. Judgment for plaintiff, and defendant brings error. On rehearing former opinion adhered to.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by Charles R. Bostick, County Attorney of Noble County, against Joseph E. Dolezal, County Clerk of said county, and Henry Ereygang and A. A. Trocon, a copartnership doing business in the name of the Midland Bridge Company, for injunction. Temporary injunction made permanent, and defendants bring error.

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Ejectment by F. E. Riddle against E. B. Johnson and others. Judgment for plaintiff, and defendants bring error.</p>

<p>INDIANS — Descent and Distribution — What Law Governs. Under the Act of April 28, 1904, e. 1824, 33 St. 573, the Arkansas law of descent and distribution of decedents' estates, as provided in chapter 49, Mans. Dig. (secs. 2522-2545), was extended over and put in force as to the estates of all tribes of Indians and all other persons, freedmen or otherwise, in the Indian Territory. And the heirs of a deceased member of the Peoria Tribe who died in 1906 inherited under the Arkansas law.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Court, Wagoner County; R. C. Allen, Judge. Action by J. Carter Cook, acting as guardian and next friend of George Harris, a minor, against E. S. Warner, to set aside a judgment of the district court, and cancel a sheriff’s deed. Judgment for defendant, and plaintiff brings error.