Volume 43 — Oklahoma Reports

<p>1. JUDGMENT — Res Judicata. A judgment rendered by a court having jurisdiction of the subject-matter and the parties is a bar to any future suit between the same parties, or their privies, upon the same cause of action, so long as it remains unreversed, and not in any way vacated or annulled.</p> <p>2. JURY — Eight to Jury Trial — Waiver—Action hy Minor. A minor, through her legal guardian, having commenced an action, and issues having been framed, the attorney of record. for such minor may waive a trial by jury and consent for the issues of fact to be tried by the court.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Allotments—Ministerial Acts. After all the requirements of the acts of Congress and the so-called agreements providing for the distribution of Indian lands have been complied with, the title of the allottee becomes fixed and absolute, and the execution and delivery of the patent after the right has become complete are the mere ministerial acts of the officers charged with that duty.</p> <p>2. CONSTITUTIONAL LAW — Exemption—Indian Allotments. “A tax exemption, and not merely an additional guard against alienation, which would fall when the restrictions on alienation were removed, was made by the Act of June 28, 1898 (30 St. at L. 505, c. 517), under which the lands allotted in severalty under that act to the members of the Choctaw and Chickasaw tribes were subjected to various restrictions on alienation, and were to be nontaxable while the title remained in the original allottees. Choctaw and Chickasaw allottees under the Atoka Agreement embodied in the Act of June 28, 1898, under which, in part consideration of their relinquishment of all claim to the tribal property, they were to receive allotments of the lands in severalty, which were to be nontaxable for a specified period while the title remained in the original allottees, acquired vested rights of exemption from state taxation, protected by U. S. Const. Amend. 5, from abrogation during that period, as was attempted by the Act of May 27, 1908 (35 St. at L. 312, c. 199); and said exemption applies, whether the patents to such lands were delivered to the allottees and accepted by them prior or subsequent to the passage of the latter act."</p> <p>3. INDIAN ALLOTMENTS. Affirmed upon the authority of Choate v. Trapp, 224 U. S. 664, 32 Sup. Ct. 565, 56 L. Ed. 941, and Gleason v. Wood, 224 U. S. 679, 32 Sup. Ct. 571, 56 L. Ed. 947.</p> <p>(Syllabus by the Court.)</p>

<p>INDIANS — Allotments—Restrictions on Alienation. C., a white man, married Mary C., a full-blood member of the Osage Tribe of Indians, of which marriage one child, a son, was born on the 27th of Pebruary, 1906. The son died a few hours after his birth, and the wife died the following, day, both intestate. C. inherited from both decedents certain lands, which were allotted to them under the act of Congress of June 28, 1906 (34 St. 539, c. 3572), which lands he afterwards conveyed to the L. L. So Z. M. Co., a corporation. Neither C., his wife, nor son had ever procured certificates of eompietency. Held, that the restrictions upon alienation imposed by the above act attach to and run with the land, and the inability to convey disqualifies the white heir as well as the immediate Indian allottees.</p> <p>(Syllabus by the Court.)</p>

<p>INDIANS — Allotments—Bight of Alienation. Section 14 of the Cherokee Agreement (Act July 1, 1902, c. 1375, 32 St. at L. 717), providing restrictions as to sale, alienation, etc., of lands by allottee or his heirs within five years after issuance of patent, does not apply to lands allotted under section 20 of said agreement to heirs of an enrolled citizen who died subsequent to September 1, 1902, before receiving his allotment, and as to such lands the said agreement imposed no restrictions upon the right of alienation.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Muskogee County; R. C. Allen, Judge. Injunction by A. H. Sharum against the City of Muskogee, a municipal corporation, and others. Judgment for defendants, and plaintiff brings error.

<p> Brror from Superior Court, Muskogee County; Parrar L. McCain, Judge. </p> <p>Action by the Central Mortgage Company against the Michigan State Life Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Quo warranto by J. H. Persinger, Roscoe Thomas, J. C. Elliott, I. G. Griffin, Robert Scivally, T. N; Roach, George W. Vincent, George H. Hinds, John B. Favor, and W. T. Leahy against G. A. Ramsey, J. F. Darby, I. C. Renfrow, Frank M. Gault, and G. T. Bryan, and Charles E. Scott, J. W. I-Iubbard, J. W. Allison, J. B. Swartz, Ewers White, G. M. Snider, J. B. Tosh, and J. G. Willis intervene. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. STATES — Legislature—Officers and Employees. The legislative department of the state has authority to appoint or elect its own officers and employees.</p> <p>2. SAME — Secretary of Senate. Section 8115, Rev. Laws 1910, provides for the appointment of a secretary of the Senate by the president of the Senate.</p> <p>3. SAME — Secretary of State Election Board — Validity of Statute. That part of section 1 of chapter 157, Session Laws 1913, passed by the extraordinary session of the Fourth Legislature, which provides that “The secretary of the state Senate shall be the secretary of the State Election Board,” is not repugnant to that part of section 13, article 6, of Williams’ Ann. Const. Okla., which provides that “the Governor shall commission all officers not otherwise commissioned by law.”</p> <p>4. OFFICERS — Appointive Power. The power to select .officers of the state is not an exclusive function of either the executive, legislative, or judicial branches. Primarily the power resides in the people, and they alone are authorized to say by what instrumentality the power may be exercised.</p> <p>6. ELECTIONS — Election Officers — Statutes—Extraordinary Session of Legislature — Governor’s Message. The subject acted upon by the extraordinary session of the Legislature was sufficiently recommended for consideration by the Governor, pursuant to section 7, article 6. > "intis' íim. Const. Okla., by his message, which reads as follows: “In my message submitted to you at the opening of this special session, I recommended the consolidation and elimination of certain local officials. Inasmuch as there has been expressed doubt on the part of some of the members of the Legislature as to whether or not this recommendation will permit the elimination of officers not specifically mentioned, I recommend to you that you pass such laws abolishing or eliminating offices and curtailing the number of appointees, assistants, and deputies in local, county and state government as in your judgment may be in the interest of greater economy and more efficiency in government.”</p> <p>6. MANDAMUS — Surrender of Appurtenances of Office — Secretary of State Election Board. — -Prima Facie Case. To make a prima facie case entitling him to a writ o£ mandamus requiring the former secretary of the State Election Board to immediately surrender and deliver to him all books, records, papers, and office furniture belonging to the office of the State Election Board, the secretary of the state Senate, who alleged that he was also secretary of tlie State Election Board, by virtue of the enactment of section 1. c. 157, Sess. Laws 1913, relied upon his appointment as secretary of the state Senate by the president of the Senate, as shown by the journal of the Senate, and a commission as secretary of the State Election Board, issued to him by the president pro tempore of the Senate, who is authorized by section 1, supra, in ease of a vacancy in the office of secretary of the State Election Board during such time as the Senate may not be in session, to appoint his successor. Held, sufficient.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTRACTS — Improbability of Performance — What Constitutes —Defense. This suit was instituted for the purpose of foreclosing a mortgage lien upon certain property securing an indebtedness of $10,700. The court found that the note and mortgages were executed in consideration of the settlement and dismissal of a certain suit' filed by plaintiff and others against defendants, ashing for the appointment of a receiver over certain corporate property controlled principally by defendant W., and the further consideration of the sale and agreement to transfer by plaintiff and others 107 shares of stock in the W. S. P. Co., of which company said W. was president and general manager; that fifteen shares of said stock were held by two minor children of said plaintiff; and that 25 shares, owned by B., who was a party to said contract of sale, had been hypothecated by said B. to secure a debt of $2,500. The trial court rendered judgment in favor of defendants on the ground that said contract was impossible of performance. Held, the court committed prejudicial error.</p> <p>2. SAME. The facts found by the court do not bring the contract involved within the rule of impossibility of performance. Difficulty or improbability of accomplishing the undertaking will not excuse non-performance; it must be shown that the undertaking cannot by any means be effected.</p> <p>3. APPEAL AND ERROR — Contracts — Impossibility of Performance— What Constitutes — Defense — Determination on Appeal — - Amendment at Subsequent Trial. Plaintiff’s suit was based upon a promissory note and mortgages securing same. Defendants pleaded as a complete defense a contract executed at the time of the execution of the note and mortgages by plaintiff and associates with the defendants. By said contract, defendants pledged the 107 shares of stock to plaintiff as additional security to said note, to be held until defendants should pay $2,500. Upon payment of said amount, plaintiff agreed to deliver all of said stock to defendants. Defendants failed to pay or tender said $2,500. Held, under the facts shown by the record, said contract failed to constitute a complete defense. Held, further, that upon another trial, the parties should be given an opportunity to amend their pleadings, to the end that the court may adjust the rights of the parties and administer equity as indicated in this opinion.</p> <p>(Syllabus by the Court.)</p>

<p>SCHOOLS AND SCHOOL DISTRICTS — Change of Boundaries. Syllabus same as first paragraph of syllabus in Board of Com’rs of Garfield Co. v. Worrell, 33 Okla. 390, 126 Pae. 785.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Finding and Judgment — Evidence. Where in a cause in equity, the trial is to the court, and the evidence is conflicting, and the judgment is reasonably sustained by the evidence, this court will not disturb the finding made and the judgment rendered thereon.</p> <p>2. HIGHWAYS — Proceedings to Open — Injunction—Evidence of Establishment. Where a board of county commissioners is proceeding to open a public highway over the lands of iDlaiutiff, upon the theory that said highway had been dedicated and conveyed to the public by plaintiff’s grantor, and where the evidence is conflicting, and the trial court finds that no public highway had been dedicated or established, and that the conveyance relied upon had not been placed of record until subsequent to the acquisition of title by plaintiff, and plaintiff had no notice thereof, held, that the judgment of the court perpetually enjoining the defendants from proceeding to open said road was not error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action between Maud Thomason and Lee Thomason and H. C. Champlin, Jr. From an order granting a new trial, Maud Thomason and Lee Thomason bring error.</p>

<p>1. JUDGMENT — What Constitutes — Collateral Attack. The judgment complained of and upon which this collateral attack is made in part reads: “It 'is further adjudged and decreed by the court that the costs of this action be taxed against the defendants and each of them.” Held, that this was equivalent to the court’s adjudging the costs against the defendants, and comes within section 5123, Rev. Laws 1910, defining a judgment, and is valid against a collateral attack.</p> <p>2. EXECUTION — Sale—Collateral Attack. The execution upon which this collateral attack is made in part reads: “State of Oklahoma, Okmulgee County — ss. In the District Court. Sarah Jacobs, Gdn., Plaintiff, v. Morris C. Clark et al., Defendants. No. 1386. State of Oklahoma to the Sheriff of Okmulgee County — Greeting: Whereas, the said Sarah Jacobs, on the 25th day of March, 1910, obtained' « a judgment in the district court of Okmulgee county, state of Oklahoma,” etc. The land in controversy was sold by virtue of' a levy made under this execution, and, upon the return of the-sheriff of his proceedings, such sale was confirmed by the district-court, and no appeal was taken therefrom. Held, that such execution and the judgment of the district court confirming the proceedings and sale made thereunder are valid against a collateral attack.</p> <p>(Syllabus by the Court.)</p>

In the matter of the assessment of the Henry Gas Company for taxation for the year 1913. From the findings of the Board of Equalization on the valuation of property, the company appeals.

Error from District Court, Kay County; W. M. Bozvles, Judge. A. B. Woolsey and others petitioned the county superintendent to change the boundaries of a school district, and, from a judgment against the petitioners by the district court to which the matter was taken on appeal by James Nelson and others from the action of the county commissioners sustaining an alteration of the district by the county superintendent, petitioners bring error.

<p>Original mandamus by the State, on the relation of J. M. Mayo, against John H. Pitchford, Judge of the District Court of Sequoyah County.</p>

<p>1. APPEAL AND ERROR — Settlement of Case-Made — Duty of Judge. Where an original petition is filed in this court, praying for a writ of mandamus, directing respondent, as district judge, to settle and certify a certain case-made, and petitioner alleges that he has served a case-made containing a true statement of all the proceedings had, orders and judgments entered, and evidence introduced in the trial, and respondent, in his answer to said petition, in substance alleges that opposing counsel filed objections to the settling and aqjproving of said ease-made, on the ground that it did not contain the evidence of certain witnesses in haec verba or in detail, and further alleges that he has only a general recollection of what the testimony of such witnesses was at the time of the trial of said cause, and he is unable to determine in his own mind whether the statements of such evidence are the same as incorporated in plaintiff’s case-made and substantially correct, held, that such answer does not constitute a legal defense, in that said respondent, under the law, is chargeable with knowledge of all the evidence introduced and proceedings had before him, and it is his duty to settle said case-made by correcting the same and make it speak the truth, and then to allow and approve the same as such.</p> <p>2. SAME — Case-Made—“Settle.” The term “settle” or “settling” a case-made, under the statute, means adjusting the differences; and when a case-made is defective by reason of containing matter which did not transpire, or matter which is incorrectly stated, it becomes the duty of the court or judge to correct same by elimination or correction to make it conform to the truth; or, if the same does not include matter material to the issue, it should be amended by including such omitted matter. In the preparation of a ease-made, counsel are entitled to the assistance of the court or judge where necessary in order to make the case-made speak the truth, and likewise the court or judge is entitled to the faithful assistance of the respective counsel.</p> <p>3. SAME — Settlement of Case-Made — Enforcement by Mandamus. Upon the filing of an original petition in this court for writ of mandamus to require respondent, as district judge, to settle and approve a case-made, where the answer filed by respondent to said petition fails to allege facts sufficient to show a legal excuse for not settling and approving said case-made, a peremptory writ of mandamus will be issued by this court.</p> <p>(Syllabus by the Court.)</p>

<p>1. MASTER. AND SERVANT — -What Constitutes — Building Contracts. Where a contractor undertakes in general terms to do work and the employer reserves the power to direct what shall be done and how it shall be done, the latter is the principal or master and is liable for the negligence of the former while constructing the work by which the plaintiff is injured. The principal or master is liable for the acts and negligence of his agent or servant in the course of his employment, although he did not know of or authorize the particular acts complained of.</p> <p>2. SAME — Liability—Burden of Proof. Every person who is found performing the work of another is presumed to be in the employment of the person whose work is being done, and if the facts be such as to exempt the owner of the property improved, or the persons for whom the work is being performed, from liability for the acts of those performing such work, it devolves upon him who claims such exemption to make proof of the terms of the contract showing that the relation of master and servant did not exist.</p> <p>3. APPEAL AND ERROR — Instructions. Record examined and held, that no reversible error was committed by the trial court by giving or refusing to give instructions.</p> <p>(Syllabus by the Court.)</p>

Error from Siiperior Court, Muskogee County; Parrar L. McCain, Judge. Action of the American National Bank, a corporation, against E. E. Iíalsell and C. M. Bradley. Judgment for defendant Hal-sell and for plaintiff as to defendant Bradley, and plaintiff brings error. Plaintiff in error (plaintiff below) sued E. E. Plalsell and C. M. Bradley upon a promissory note executed by Halsell payable to Bradley.

<p> Error from Superior Court, Oklahoma County; Edward D. Oldfield, Judge. </p> <p>Action by Rachel Helm against John B. Rone. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court,.Oklahoma County; Geo. W. Clark, Judge. Replevin by Mike Gorman, as trustee and liquidating agent of the Bankers’ National Bank of Ardmore, against John M. Shelton and the Southwestern Manufacturing Company. Judgment for defendant last named, and plaintiff brings error.

<p>1. MUNICIPAL CORPORATIONS — Town Marshal — Illegal Arrest— Liability oil Bond. ■ Where an officer, while doing an aet within the limits of Ms official authority, exercises such authority improperly, or exceeds his official powers, or abuses an official discretion vested in him, he becomes liable on his official bond to the person injured. But, where he acts without any process and without' the authority of his office, in doing such act, he is not to be considered an officer, but a personal trespasser.</p> <p>2. SAME — Liability on Bond. Sureties on the official bond of a town marshal are only answerable for the acts of their principal while'engaged in the performance of some duty imposed upon him by law or for an omission to perform some such duty.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action between Bettie Walker and others and Andrew J. Brown. From the judgment the parties first mentioned bring error.</p>

<p> Error from Superior Court, Custer County; J. W. Eawter, Judge. </p> <p>Action by Garnett Huston against R. H. Thompson. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by James H. Bynum and others against W. S. Edwards and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from County Court, Harper County; A. H. Walker, Judge. </p> <p>Action by Charles E. Carriker against Alfred Gebhardt. Paul Gebhardt intervened. Judgment for intervener, and plaintiff brings error.</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action by the First National Bank of Ada against F. F. Gilmore and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Mandamus by the State, on the relation of Albert Rennie, against J. F. Trimmer, Treasurer of Garvin County. Judgment for relator, and defendant brings error.</p>

<p>1. EXECUTORS AND ADMINISTRATORS — Action. Against Administrator — Parties-. Under sections 5347 and 5348, Comp. Laws 1909 (sections 6301, 6302, Rev. Laws 1910), suits for the recovery of real property and to remove a cloud and to quiet title thereto may be maintained by and against administrators and .executors, and the heirs of the decedent or intestate are not necessary parties.</p> <p>2. APPEAL AND ERROR — Parties — Heirs of Decedent — Action Against Representatives. Plaintiff instituted this suit against the administrator and administratrix of Wilson M. Pureell, deceased, and joined all the heirs of decedent as defendants. Defendants in said cause, with the exception of one heir, were made parties to the proceeding in this court. On motion to dismiss petition in error, on the ground that this court is without jurisdiction on account of nonjoinder of said heir, held, that the heirs were not necessary parties in the court below; hence, not necessary parties in this court, and the motions to dismiss are overruled.</p> <p>(Syllabus by the Court.)</p>

<p>1. VENDOR AND PURCHASER — Contract for Sale of Land. The agreement between the plaintiff and K. examined and held to be a contract for the sale of land.</p> <p>2. SAME — Contract of Sale — Interest Acquired by Vendee. A contract for the sale of land, bona fide, made for a valuable eonsidera- - tion, vests the equitable interest in the vendee from the time of the execution of the contract, and a transcript of a judgment in favor of a third person against the vendor filed in the county in which the land is situated, subsequent to the making of such contract, but prior to the time of its complete performance, cannot defeat or impair the equitable interest thus acquired.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND .ERROR — Dismissal—Failure to Serve Summons. A motion to dismiss an appeal will be sustained where the record discloses that neither a defendant in error, who was the sole plaintiff below, nor his attorneys of record in the original ease, have been served with summons in error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Washita County; E. R. Shean, Judge. </p> <p>Action by J. S. Hughes against J. F. Meier and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Action by H. M. Chestnutt and another against John Plicks. Judgment for defendant, and plaintiffs bring error.</p>

Error from Superior Court, Pottazvatomie County; G. C. Abernathy, Judge, Petition by Ered Erclman against Minnie Erdman to vacate a divorce decree. A demurrer to the petition was sustained, and plaintiff brings error.

<p> Error from District Court, Choctaw County; Summers Hardy, Judge. </p> <p>Action by Robert Arthur against the Board of County Commissioners of Choctaw County and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Dismissal—Service of Case-Made — Transcript. Where a case-made was not served until after the extension of time made by a valid order of the court had expired, it is void; and where the proceeding in error presents no error that can be reviewed upon a transcript of the record, the proceeding will be. dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal—Service of Process. A petition in error will be dismissed on motion, even though the same is filed in this court within the six months allowed under the statute, where no waiver of issuance and service of summons in error is had, and no praecipe for the same filed, and no summons issued, or general appearance made within such time.</p> <p>(Syllabus by the Court.)</p>

<p>1. LANDLORD AND TENANT — “Constructive Eviction’’ — What Constitutes. If a tenant is deprived by the wrongful act of the landlord of the beneficial use of the premises and is compelled thereby to qu'it and abandon them, it amounts to a constructive eviction, and actual force is not necessary to constitute such eviction.</p> <p>2. ■ SAME — Question for Jury. Whether there has been a constructive eviction depends upon the facts and circumstances of each-particular ease, and is a question of fact for the determination of the jury.</p> <p>3. SAME — Eviction—Existence. The propositions that there can be-retention of demised premises and an eviction are logically and legally contradictory.</p> <p>á. APPEAL AND ERROR — Landlord and Tenant — Reversal—Eviction — Sufficiency of Evidence — Amount of Recovery — Instruction. Record examined, and held: (1) That there was sufficient evidence to take the case to the jury on the question of constructive eviction; (2) that the evidence was not sufficient to sustain the amount of recovery allowed by the jury; (3) that the giving of instruction No. 7, allowing treble damages if the jury found the acts of the defendant amounted to forcible eviction, which is admittedly erroneous, probably resulted in a miscarriage of justice, for which the cause should be reversed and remanded for a new trial.</p> <p>(Syllabus by the Court.)</p>

<p>1. STREET RAILROADS — Collision with Wagon — Question for Jury — Negligence—Contributory Negligence. In a suit in damages for personal injuries, where the evidence discloses that the ear struck the wagon while it was crossing the track at the intersection of two streets, that the plaintiff was riding in the wagon with his back toward the approaching ear, and the owner was driving the team, that plaintiff neither looked nor listened nor did anything to stop the team, that the evidence was conflicting as to the speed of the car and how far it was from the team at the time the motorman discovered it on the track, held, that the question of defendant’s negligence and the contributory negligence of the plaintiff was for the jury. Held, further, that the failure of plaintiff to look and listen was not contributory negligence per se.</p> <p>2. TRIAL — Instructions—Construction—Harmless Error. Where two instructions, construed together, fairly state the law, the ease will not be reversed for error existing in one of them.</p> <p>3. NEGLIGENCE — Doctrine of Imputed Negligence. The doctrine of imputed negligence 'is not recognized in this jurisdiction.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Ground for Dismissal — Settlement of Controversy. Where it is made to appear, by proper showing in this court, that the controversy involved in a proceeding in error has been settled between the parties, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Coal County; Robert M. Rainey, Judge. Action by V. S. Cook against the Tupelo Townsite Company and others, for foreclosure of mortgage, and defendant S. B. Brooks filed cross-petition. Judgment for plaintiff, and judgment for Brooks on cross-petition, and the Tupelo Townsite Company brings error.

Brror from Superior Court, Garfield County; Dan Bluett, Judge. Quo warranto by the State, on the relation of Charles West, Atty. Gen., against George Balzer and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Oklahoma County; John J. Carney, Judge. </p> <p>In the matter of the submission of controversy as to the issuance of bridge bonds 1913 by the City of Miami. From a judgment that the bond commissioner do not approve said bonds, the city brings error.</p>

<p> Error from District Court, Ellis County; G. A. Brown, Judge. </p> <p>Action between H. P. Nelson and the Pittsburg Mortgage Investment Company. From the judgment, Nelson brings error.</p>

Error from District Court, Washita County; James R. Tolbert, Judge. Mandamus by “Mrs. John Stone” against A. W. Riggs and others, constituting the County Election Board of Washita County, Okla. Peremptory writ denied, and plaintiff brings error.

<p>APPEAL AND ERROR — Moot Questions — Dismissal. Abstract or hypothetical cases, disconnected from, the granting of actual relief, or from the determination of which no particular result can follow other than the awarding of the costs of the appeal, will not be decided by this court.</p> <p>(Syllabus by the Court.)</p>

In the matter of the Initiative Petition No. 44, State Question No. 71. Application of J. S. Estes and others for submission of a constitutional amendment. Parker W. Cress and others filed protests. Protests overruled, and Parker W. Cress appeals.

Error from District Court, Wagoner County; R. C. Allen, Judge. Action between the Oklahoma Land Company and others and John R. Thomas and others. From the judgment, the land company and others bring error.

Error from District Court, Tulsa County; E. M. Poe, Judge. M. F. Smith petitioned for the probate of the will of Tuckabache, and Ethel Davis and others filed objections. From an order admitting the will to probate, contestants appealed to the district court, and the executor dying, Albert H. Bell, as administrator of the will annexed of Tuckabache, was substituted as proponent. • Judgment for contestants, and Bell brings error. On motion to dismiss.

<p> Error from District Court, Kingfisher County; James W. Steen, Judge. </p> <p>Action by the Long-Bell Lumber Company against John E. Taylor. Judgment for plaintiff, and defendant brings error.</p>

Brror from District Court, Kingfisher County; James W. Steen, Judge. Application by the State, on the relation of Charles A. Love, for writ of mandamus against Clyde Smith. Judgment for respondent, and relator brings error.

Brror from District Court, Nowata County; T. L- Brown, Judge. Action between C. C. Todd and others and Charles Carter and others. From the judgment, the parties first mentioned bring' error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Injunction by W. A. Shelton and others against School Board, District No. 22 of the City of Tulsa, Okla. From a judgment dissolving a temporary restraining order and denying a temporary injunction, plaintiffs bring error.

<p> Error from Superior Court, Oklahoma County; E. D. Oldfield, Judge. </p> <p>Action by W. A. McKee against W. J. Thompson and H. E. Carter. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Custer County; J. W. Lawter, Judge. Action by the State National Bank of Oklahoma City against C. B. Wood. Judgment for plaintiff before justice, and for defendant on appeal to the superior court, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Assignments of Error — Sufficiency. ■Where assignments of error are so indefinite and general as not to point out the errors complained of, and do not direct the court’s attention to any facts showing cause for reversal, the Supreme Court will not consider them.</p> <p>2. SAME — Presentation for Review — Transcript. Assignments of error to the effect that the trial court erred in giving certain instructions, that the verdict is excessive, that the trial court erred in overruling the motion for a new trial, etc., cannot be presented for review upon a transcript of the record.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Time for Proceeding — Dismissal. Dismissed because proceeding in error was not filed in the Supreme Court within the time required by law.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Time for Proceeding — Dismissal. Dismissed because proceeding in error was not filed in the Suimeme Court within the time required by law.</p> <p>(Syllabus by the Court.)</p>

<p>1. INDIANS — Allotment — Descent — New Acquisitions. Andrew Berryhill was a mixed-blood member of the Greek tribe of Indians. He died while an infant, intestate, in November, 1901. Thereafter his name was duly placed upon the rolls prepared by the Commission to the Dive Civilized Tribes, and approved by the Secretary of the Interior. The land involved and other lands were selected by an administrator and set apart to him as an allotment. Patent was duly issued, conveying the land to Ms heirs. He left surviving his father, who was a mixed-blood member of the Creek tribe of Indians, and his mother, who was a noncitizen and not a member of any Indian tribe, together with several uncles and aunts, members of the Creek tribe. Held, that under Mansf. Dig. sec. 2531, which was in force in the Indian Territory by virtue of an act of Congress, the land involved was not a new acquisition, but came to him by the blood of his tribal parent, to wit, his father, to whom the fee-simple title to said land passed. Poliowing Shulthis v. McDougal, 170 Ped. 529, 95 C. C. A. 615; Pigeon et al. v. Buck et al., 38 Okla. 101, 131 Pac. 1083.</p> <p>2. COURTS — Indians—Allotment—Descent—New Acquisition — Previous Decision as Controlling. The plaintiff in error tendered certain testimony of lawyers, for the purpose of showing that the rule laid down by the Circuit Court of Appeals in the ease of Shulthis v. McDougal, 170 Ped. 529, 95 C. C. A. 615, and the case of Pigeon et al. v. Buck et al., 38 Okla. 101, 131 Pae. 1083, had not been followed generally by the profession and trial judges. Objection was made to the introduction of this testimony, upon the ground that it was incompetent and immaterial, which objection was by the court sustained. Held, that the court committed no prejudicial error in sustaining said objection. Held, further, that the rule announced in the case of Pigeon et al. v. Buck et al., supra, is adhered to and held to be a rule of property.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Muskogee County, Parrar E. McCain, Judge. </p> <p>Action between Samuel E. Gidney and Sydney C. Chappie and others. From the judgment, Gidney brings error.</p>

<p> Error from District Co%irt„ Nowata County; T. L. Brown, Judge. </p> <p>Action by M. E. O’Connor against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Alfalfa County; F. M. Gustin, Judge. </p> <p>Action by J. IT. Chowning and another, partners, against J. M: Heath. Judgment for plaintiffs, and defendant brings error.</p>

<p>PLEADING — Petition—Sufficiency—Conclusions of Pleader. In this case suit was instituted by the county attorney of Blaine county in the name of the state against the principal and sureties upon a bail bond. The petition alleges the return of an indictment in the district court, charging the principal defendant with unlawfully maintaining a certain place in said county wherein intoxicating liquors were sold; the order of the district court transferring said proceeding to the county court; the execution and filing of the appearance bond; the failure of the principal to appear, and an order directing the county attorney to file suit thereon; that defendants were indebted to the plaintiff! by reason of the forfeiture of said bond. A general demurrer was filed to the petition, which was by the court overruled. Defendants refused to plead further, and judgment was rendered against them for the amount of the bond. Held, that said petition stated a good cause of action as against a general demurrer, and the court committed no prejudicial error in overruling said demurrer and rendering judgment.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action by P. J. Barringer against the Germania Fire Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Filing—Necessity. Where a ease.made is not filed in the office of the clerk of the trial court, it is a nullity, and cannot be considered on appeal to this court.</p> <p>(Syllabus by the Court.)</p>

<p>1. TAXATION — Equalization—Appeal. Chapter 87, Sess. Laws 1910, and chapter 152, Sess. Laws 1910-11, creating- a board of equalization with power to equalize assessments and to adjust individual assessments, such board is a quasi judicial body, and an appeal will lie from the decision of such board to the district court.</p> <p>2. SAME — Validity of Statute. Chapter 152, Sess. Laws 1910-11, is not unconstitutional under article 4, see. 1, of the Constitution and article 7, see. 1, of the Constitution.</p> <p>3. SAME — Statutes—-Adequacy of Remedy. Chapter 87, Sess. Laws 1910, and chapter 152, Sess. Laws 1910-11, construed together, provide an adequate and certain remedy by appeal.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Washita County; G. A. Brozan, Assigned Judge. </p> <p>Action by Effie Connelley against Guss Connelley. Judgment for plaintiff, and defendant brings error.</p>

<p>Action by Ernest Tulloss against the Western Coal & Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Original mandamus by the State, on relation of George I. Lynch and another, against Charles L. Hoover, as sheriff of Noble county, and others.</p>

Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. Action between W. T. Cable and W. E. Myers. From an order of the court upon motion to retax costs, Cable brings error.

<p>1. TRIAL — Cancellation of Instruments — Right to Jury Trial — Equity. Jn eases of equitable cognizance (except as otherwise provided by statute [Rev. Laws 1910, secs. 4993, 4994]; see Brewer v. Martin, 40 Okla. 350, 138 Pac. 166, and authorities therein cited), the judge may call a jury, or consent to one, for the purpose of advising him on the questions of fact, and he may adopt or reject their conclusions, as he sees fit, for that the whole matter must eventually be left to him to determine; and instructions offered by the parties furnish no ground of error on appeal. It is not only the right, but the duty, of the court, in such eases, to fully determine all questions of fact, as well as of law.</p> <p>2. APPEAL AND ERROR — Bindings—Evidence. The rule in this • court is that, where the evidence reasonably tends to support the findings of a trial court or a jury in such court, the same will not be reviewed in this court.</p> <p>(Syllabus by the Court.)</p>

M. Campbell, Referee. In the matter of the assessment of the Indian Territory Illuminating Oil Company. To the report of the referee, to whom the cause was referred by the Supreme Court, the oil company excepts.

<p>1. ATTACHMENT — -Grounds — Fraudulent Conveyance — Burden of Proof. In order to sustain an attachment issued upon the ground that the defendant has disposed of Ms property with intent to defraud, hinder, or delay his creditors, the intent to defraud must be established by the person who alleges such intent.</p> <p>2. SAME — Preferring Creditor. Such fraudulent intent will not be inferred from a finding of the trial court to the effect that the defendant disposed of his property for the purpose and with the intent to prefer one creditor over the others, and with the intent to delay the collection of plaintiff’s claim until after the payment of the indebtedness due the preferred claimant.</p> <p>3. SAME. In the absence of statutory provisions to the contrary, a debtor, though in failing circumstances, may prefer one or more of his creditors to the exclusion of the rest, and such preference is not in itself sufficient to sustain an attachment upon the ground that the defendant has disposed of his property with the intent to defraud, hinder, or- delay his creditors.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Pawnee County; L. M. Poe, Judge. </p> <p>Action by L. V. Orten, trustee in bankruptcy, against the First National Bank of Cleveland, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Comanche County; James H. Wolverton, Judge. </p> <p>Action by J. E. Coker against the Home Insurance Company of New York. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Logan County; A. H. Huston, ludge. Action by Clara Snyder against the City of Guthrie, a municipal corporation. Judgment for plaintiff, and defendant brings error.

Error from District Court, Kingfisher County; James B. Cullison, Assigned Judge. Proceedings in mandamus by the State, on the relation of Clyde Smith, an elector and resident of Kingfisher county, against the County Election Board of Kingfisher County, and George McCoy and others, as members of such board, and their successors in office, if any. Judgment for relator, and respondents bring error.

Error from District Court, Muskogee County; ■ R. P. de Graffenreid, Judge. Action by the First State Bank of Idabel against the Bank of Braggs and others. A demurrer to the petition was sustained, and plaintiff brings error.

<p> Error from County Court, Wagoner County; W. T. Hunt, Judge. </p> <p>Action by the J. I. Case Threshing Machine Company, a corporation, against Ella V. Smith, executrix of J. R. Smith, deceased. Judgment for plaintiff, and defendant brings error.</p>

<p>1. FBAuDS, STATUTE OF — Necessity of Writing — Original Contract — What Constitutes. Where money is loaned to R. solely upon a verbal promise of W. and credit is extended solely to W. and no credit is extended to R., the promise of W. is original, and does not come within the statute of frauds.</p> <p>2. SAME — Joint Credit. Where money is loaned or goods sold to R. and W. jointly, and credit is extended to both, and both promise to pay the same, although such money is borrowed or goods purchased for the sole benefit of R., the promise of R. and W. is original, and they are codebtors, and such promise need not be in writing, and either or- both will be liable for the debt.</p> <p>3. SAME — Collateral Promise. Where money is loaned or goods sold to R. for his use and benefit, and credit is extended to E. and W. jointly, or if any credit is extended to E., W. ’s promise to pay is collateral, and comes within the statute of frauds, unless it be in writing.</p> <p>4. TRIAL — Instructions—Conflicting Evidence — Assumption of Fact. Defendant requested the court to give the jury the following instruction: “The court instructs the jury that if you find and believe from the evidence in this case that Geo. E. Roberson, the original debtor, still remains liable to the bank, then in that case the plaintiff cannot recover,” which instruction was refused. Held not error, for the reason said instruction assumes that Robertson was the original debtor, and deprived the jury of the right to pass upon that as an issue of fact. Held, further, that this instruction did not present the true test as to whether it was an original or collateral agreement.</p> <p>5. FRAUDS, STATUTE OF — Question for Jury — Nature of Contract —Intent of Parties. The question as to whether or not the verbal-promise of the parties to pay the debt, created by the advancement of money, is original or collateral is generally controlled by the intent of the parties, to be gathered from, their conduct and relations to each other, and all the facts and circumstances at the time bearing upon the issue, and in such case it is always a question of fact for the jury.</p> <p>6. SAME. The evidence on the part of plaintiff tends to show that the money in question was advanced to E. solely on the credit of W.; that E. was working for W. at the time, and a settlement was pending between them; that W. requested plaintiff over the telephone to advance the money to E. and he would sign a note for same; that plaintiff relied upon said promise and extended the credit solely to W. Held, that whether or not the promise of W. was an original or collateral promise depended largely upon the intent of the parties, and was a question of fact to be determined by the jury.</p> <p>7. TRIAL — Instructions — Applicability to Evidence. The court charged the jury as follows: “I charge you that if you find from the evidence that when the money was loaned it was agreed and understood that said obligation was to be a joint obligation of defendant, A. J. Waldoek, and said Roberson, as a joint and several obligation, and they thereby became liable as eodebtQrs for said loan, and that the credit was given to both jointly, then I charge you that defendant would be liable, and you should so find from the evidence.” Held, that the court committed error, in that there was no issue made, either by the pleadings or by the evidence, to which this charge was applicable, and that it was otherwise misleading.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Waiver of Error — Denial of New Trial — Failure to Except. A failure to except to the order of tbe trial court overruling a motion for 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>

Error from District Court, Beaver County; R. H. Loofbourrow, Judge. Condemnation proceedings instituted by the Wichita Falls & Northwestern Railway Company against the property óf Bailey S. Harrold and another. From the judgment on a verdict assessing damages, the property owners bring error.

<p>APPEAL AND ERROR — Presentation for Review — Case-Made. Where plaintiff in error fails to make and serve his ease-made within the time allowed by statute, or within a valid extension granted by the trial, court, the appeal will be dismissed.</p> <p>(Syllabus by the Court.) .</p>

Proceedings by the State against the Chicago, Rock Island & Pacific Railway Company and the Wichita Falls & Northwestern Railway Company. From a final order of the Corporation Commission, the railway companies appeal.

Error from District Court, Grady County; Prank M. Bailey, Judge. Action by the Moore Mill & Gin Company against the Scottish Union & National Insurance Company and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Haskell County; Malcolm E. Rosser, Judge. </p> <p>Action by Maria Resetz against the Sans Bois Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>DIVORCE — Grounds—Gross Neglect of Duty — What Constitutes. The trial court found that defendant was a strong, able-bodied man during all the time he was married to plaintiff; was earning a salary of $50 per month; that he had sufficient funds to make reasonable provision for his family; that plaintiff and defendant resided together as husband and wife for a period of two weeks; that defendant, without notice, left plaintiff without the necessities of life; that they afterwards resided together for a few weeks; that defendant failed to further provide food for plaintiff, and refused to furnish medicine or medical services for their sick child; that during all of said time plaintiff was without any means whereby to provide the necessities of life, medicine, and medical services for their sick child; that for lack of means, plaintiff was compelled to abandon their home and reside with her uncle, in order to secure food, medicine, and medical attention; that the child died a few months later; that defendant left plaintiff a second time and never returned, and failed to make any effort to support her and their child. The court denied plaintiff a decree of divorce. Held, that such conduct on the part of defendant, under the circumstances, constituted "gross neglect of duty,” entitling plaintiff to a divorce.</p> <p>(Syllabus by the Court.)</p>

Error from County Court„ Bryan County; J. L. Rappolee, Judge. Action between Charles Blester and Lem Gilbert. From the judgment, Hester brought error, and, Gilbert dying, Sam Moore, administrator of his estate, moved to dismiss the proceeding in error.

<p>APPEAL AND ERROR — Presentation for Review — Certificate to Transcript. Where a ease is presented to the Supreme Court on appeal upon a transcript of the record of the court below, the certificate thereto must be full and complete, and specifically show that the record contains a full, true, and complete transcript of the record.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Latimer County; W. H. Brown, Judge. </p> <p>Action by Mrs. Ben Coffman against the Great Western Coal & Coke Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Master and Servant — Injury to Servant —Assumption of Risk — Harmless Error — Instructions. Where the issues were whether or not the explosion was caused by reason of a violation of the statute by the master, and, if so, whether or not the servant assumed the risk, it is immaterial whether the court gave conflicting instructions upon the doctrine of assumption of risks, as the plea of assumption of risks is a bad plea, and is not available as a defense.</p> <p>2. MASTER, AND SERVANT — Injury to Servant — Contributory Negligence — Knowledge of Danger. In charging upon contributory negligence, it is no error for the court to instruct the jury that knowledge of the danger confronting deceased, at the time he was injured, was an essential factor for the consideration of the jury.</p> <p>3. TRIAL — Instructions—Applicability to Evidence. Where there is no evidence reasonably tending to prove that the deceased, knowing that shots were about to be fired, had at his command an opportunity to leave the mine before the shots were fired, it was not error for the court to refuse to give an instruction predicated upon that theory.</p> <p>4. MASTER AND SERVANT — Injury to Servant — Instructions—Issues. Where upon proper cross-examination of defendant’s witnesses, evidence developed tending to prove that the shot firers, in the preparation of and in firing their shots, were negligent, and that such negligence ignited the coal dust allowed by the master to' accumulate in the mine in violation of the statute (Rev. Laws 1910, secs. 3975, 3982), and caused the explosion which killed the deceased, held, that it was not so far without the issues as to constitute reversible error for the court to charge the jury, in effect, that negligence of a fellow servant, if they found him to be negligent in that particular, was the negligence of the master, and in refusing to charge that they disregard any possible negligence on the part of the shot firers.</p> <p>5. SAME — Injury to Servant — Evidence of Condition. Evidence as to the condition of the mine as to gas prior to the explosion, examined, and held not to be so remote from the time of the explosion as that its admission constituted reversible error.</p> <p>6. NEGLIGENCE — Evidence of Condition — Admissibility. Evidence of the condition of the place where the injury occurred, a reasonable time before the occurrence, is admissible as tending to show its condition at the time of the occurrence, especially where it is further shown that those conditions have not since changed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Latimer County; W. H. Brown, Judge. Action by Mary McMahan against the Great Western Coal & Coke Company and others. Judgment for plaintiff, and defendant named brings error.

<p> Error from District Court, Latimer County; W. H. Brown, Judge. </p> <p>Action by Maggie Boyd against the Great Western Coal & Coke Company, a corporation, and others. Judgment for plaintiff, and defendant naffied brings error.</p>

Error from District Court, Latimer County; W. H. Brown, Judge. Action by Mary E. Belcher against the Great Western Coal & Coke Company, a corporation, and others. Judgment for plaintiff, and defendant named brings error.

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by the Bass Furniture & Carpet Company against W. B. Skirvin. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PROHIBITION — Grounds—Unauthorized Judicial Action. A writ of prohibition will issue to prevent a trial court from reconsidering its order denying a new trial on a motion or petition for a new trial and rehearing the same after the expiration of the trial term, since such action is an unauthorized application of judicial force and is void.</p> <p>2. NEW TRIAL — Petition—Time for Hearing — Extension. The office of a motion for a new trial and of a petition for a new trial is the same; and a motion for a new trial to review the order of the court denying such motion or petition is unauthorized by statute and unnecessary, and does not have the effect of extending the time within which the trial court can reconsider its order denying a petition for a new trial beyond the term at which the same was made.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. J., dissents.</p>

<p> Error from Superior Court, Oklahoma County; Edzvard D. Oldfield, Judge. </p> <p>Action by Mary Miozrany against the Osage Coal & Mining Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Parties—Joint Judgment. All parties against whom a joint judgment has been rendered must be made parties to a proceeding in error to reverse sueh judgment, and a failure to join any of them, either as plaintiff or defendant, is ground for dismissal of the case.</p> <p>2. QUIETING- TITLE — Parties. In a suit to set aside one deed on the ground of the minority of the grantor and for fraud in the grantee, and another on the ground that his grantee took title to the land with knowledge of and participating in the fraud, both the grantor and grantee in the second deed are necessary parties to.a suit to clear both deeds as a cloud on plaintiff's title and necessary parties in this court to review a judgment granting such relief.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — New Trial — -Review—Motion for New Trial— Time. Rev. Laws Okla. 1910, see. 5035 (Oomp. Laws 1909, see. 5827), requiring a motion for a new trial to be filed within three days after verdict, is mandatory, and, in the absence of a showing that the party filing it has been unavoidably prevented from filing it within the time specified in said statute, this court cannot consider it or review the errors occurring at the trial. Held, further, that the trial court has no power to grant an extension beyond the time specified, and a filing mark upon such motion, showing same filed within the statutory -period, is not conclusive. Held, further, that an agreement of counsel cannot work to effect an extension beyond the time specified in the statute.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Evidence—Harmless Error — Hypothetical Questions. A hypothetical question sufficiently comprehensive to cover the essential facts testified to by plaintiff as to how and where an injury was occasioned is not improper for the sole reason that it does not embrace all the facts in the record; nor is it reversible error to permit an expert witness to testify that, in his opinion, certain causes could have produced certain results.</p> <p>2. TRIAL — Instructions—Pleadings. It is the correct practice generally to state the issues of the case as made by the pleadings to the jury; and it is not error to properly summarize in the instructions the allegations contained in the pleadings.</p> <p>3. CARRIERS — Injury to Passenger — Sufficiency of Evidence — Instructions. Upon review of the entire record, held that the judgment is amply sustained by the evidence and that the instructions of the court fairly present the law of the ease.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Dismissal — Filing Case-Made. A ease-made filed in tMs 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 case-made remains in this court after the expiration of the statutory period in which to perfect an appeal, on motion the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; Tom D. McKeown, Judge. Quo warranto by the state, on the relation of D. K. Pope, County Attorney, of Oklahoma County, against J. A. Tillotson. Judgment for respondent, and relator brings error.

Original action for a writ of prohibition by the State, on the relation of S. C. Vinson, administrator of the estate of Enos Nichols, deceased, and another, against George Outcelt, Special Judge, and others.

Error from County Court, Oklahoma County; John W. Hay son, Judge. Action by Della Limerick and others’against George H. Anderson and W. F. Bland. Judgment for plaintiffs, and defendants bring error. Dismissed.

<p>Original action for writ of prohibition, by F. M. Shelton against R. McMillan, Judge of the District Court of the Fourteenth Judicial District of the State of Oklahoma.</p>

Error from District Court, Carter County;, Stillwell H. Russell, Judge. Action between Errett Dunlap and others and D. M. Rumph and others. From the judgment, the parties first mentioned bring error.

<p>1. APPEAL AND EK.R.OR — Case-Made—Validity. Where it appears from the reedrd, attached to petition in error filed in this court as a ease-made, that it was not served within the time allowed by law, or within a valid extension granted by the trial court, and it further appears that said case-made is not certified to by the trial judge, and that the same has not been filed with the clerk of the trial court, the same is a nullity as a case-made, and fails to confer jurisdiction on this court.</p> <p>2. SAME — Presentation for Keview — Dismissal. The record filed herein, attached to petition in error, seeks to review the action of the trial court in overruling a motion for a new trial. Said record or transcript does not include any judgment rendered by the trial court, or any order made against plaintiff in error. Held, that said record filed in this court as a transeript of the record or proceedings is insufficient to confer jurisdiction on this court.</p> <p>(Syllabus by the Court.)</p>

<p>ELECTIONS — Contest—Irregularities—Burden of Proof. Under the provisions of the Constitution of the state of Oklahoma, article 3, section 4a (Williams’)» and section 5, chapter 106, Sess. Laws 1911, the duty of applying the educational test necessary to |>rove the qualification of certain persons otherwise entitled to vote, and thereupon determining the right of such persons to vote at any election, devolves upon the precinct election officers; and in the absence of proper allegations, and proof of fraud or failure or neglect on the part of such officers in the performance of said duties, their action in permitting, or refusing to allow, persons to vote at an election will not be reviewed by the courts, the presumption being that said duties were fairly and honestly performed in accordance with the provisions of the law.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Action between Alice Harn and Oklahoma City and others. From order discharging temporary injunction, the party first named brings error.

<p> Error from County Court, Carter County; M. F. Winfrey, Judge. </p> <p>Action by the Ardmore State Bank against C. B. Ladd. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Pittsburg County; W. C. Liedtke, Judge. Injunction by the McAlester-Edwards Coal Company and others against M. E. Trapp, State Auditor, and others. Judgment for defendants, and plaintiffs bring error.

<p> Mrror from County Court, Okmulgee County; W. L. Merwine, Special Judge. </p> <p>Action by William Berryhill against the Ozark Oil Com■pany. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>Action between B. J. Grier and John H. Durham, guardian of Daniel Johnson, a minor. From the judgment, Grier brings error.</p>

Error from District Court, Kingfisher County; James W. Steen, Judge. Action by W. L. Reynolds and PI. H. McFadden against C. L. Rogers and others, as the Precinct Election Board of the Third Ward of the City of Kingfisher, Kingfisher County, Okla. Judgment for plaintiffs, and defendants bring error.

<p> Error from County Court, McClain County; W. H. Woods, Judge. </p> <p>Action between J. H. Colby and A. T. McElderry. From the judgment, Colby brings error.</p>

<p>1. EVIDENCE — Documentary Evidence — Land Patents. In an action for rent between white citizens of the state, where the complaint states a cause of action under section 3802, Bev. Laws 1910, which provides, “The occupant of any land, without special contract, shall be liable for the rent to any person entitled thereto," copies of allotment and homestead patents, exemplified in pursuance of the law of the state, offered by plaintiff to sustain the issues in his behalf, are admissible in evidence.</p> <p>2. INDIANS — Lands—Action for Bent — Defenses Available Under General Denial. In such an action under the Code, whether the Indian lessor of the plaintiff is competent to make a lease without having the same approved by the county court, and the other questions sought to be raised in relation to' the age of said lessor, his quantum of Indian blood, and the alienability of his surplus and homestead allotment constitute defensive matter which is not available to the defendant under a general denial.</p> <p>(Syllabus by tho Court.)</p>

<p>1. MASTER AND SERVANT — Injury to Servant — Safety—Duty of Master. It is the duty of the master to furnish his servants a reasonably safe place to work; reasonably safe appliances with which to work; reasonably safe material to work with; and reasonably competent fellow servants.</p> <p>2. SAME — Negligence of Fellow Servant — Liability of Master. The master is liable for the negligent acts of his servant, resulting in injury to a fellow servant, while performing services for his master within the general scope of his employment, although at the time of the injury he may be acting in violation of express orders of his master.</p> <p>3. SAME — Injury to Engineer — Negligence of Fireman — Scope of Employment. The evidence shows that the duty of the .fireman, plaintiff's coservant, at the time of the injury, in addition to firing the engine, was to assist plaintiff as engineer in keeping up and repairing the engine when called upon to do so by the engineer; but the fireman had no authority to- repair the engine, except when requested so to do. Held, that the fireman, in repairing the engine, although without any request to do so, and in violation of orders of his .master, was working within the general scope of his employment.</p> <p>4. SAME — Negligence—Scope of Employment — Question for Jury. The engine on which plaintiff and his coemployee were working at the time of plaintiff’s injury had a fireman’s cab, separate from the engineer’s cab. Each of said cabs was constructed to contain a water glass, the purpose of which was to be used by the engineer to keep informed as to the condition of the water in the boiler. On the day plaintiff was injured, the engine was sent out with only one water glass; there being none in the fireman’s cab. The engineer was not informed of the absence of said water glass until out on the road. The fireman, without the knowledge and without any orders from the engineer, secured a glass which was too short and attempted to put it in. Plaintiff was called to the fireman’s cab by the fireman, and as he reached the point near the water glass, it exploded, destroying his eye. Held, • that the fireman, in replacing the water glass, was performing services for his master, and acting within the general scope of his employment. Held, further, that the question of negligence of the master, as well as that of the plaintiff’s coservant, was, under all the facts and circumstances, a question of fact for the jury.</p> <p>5. DAMAGES — Personal Injuries — Excessive Recovery. Plaintiff was a man 34 years old and physically strong at the time of the accident; had worked his way up to the position of engineer in the railroad service; had prepared himself and selected this for his life's work; was receiving from an average of $125 to $130 per month. ITis earning capacity by reason of the injury was reduced $65 per month. • His injury disqualifies him from ever holding the position of engineer with any railroad company. His expectancy, according to the American Mortality Table, is 34 years. He'suffered a great deal of pain for fifteen days; was under the care of a physician for about four months. The sight of his eye was entirely destroyed. There is nothing in the record to indicate that the jury was'influenced by passion or prejudice, except it be the amount of the verdict. The verdict was approved by the trial court. Held, that it is not shown that the trial court abused its discretion in approving the verdict. Held, further, that a verdict of $15,000 is not excessive.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Ejectment by J. S. Mullen against Bryce Glass and others, and E. I. Wakeman, guardian, etc., intervenes. Judgment for defendants, and plaintiff brings error.

<p>1. EQUITY — Jurisdiction—Remedy at Law. A court of equity will not grant relief where, at the time, there is plain, specific, and adequate remedy at law.</p> <p>2. TAXATION — Collection of Tax — Sufficiency of Petition. Where the petition for injunction shows that the complaining party has failed to bring himself within the terms of the statute (section 7354, Bev. Laws 1910), such petition is bad on demurrer for failure to state sufficient facts to entitle plaintiff to equitable relief.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Rogers County; T. E. Brown, Judge. Condemnation proceedings by the Town of Chelsea against A. G. Phillips and another, wherein H. H. Byrd was permitted to interplead. From the judgment, defendants bring error.

<p> Error from District Court, P ottazvatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Action by W. T. Townes against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error,</p>

<p>PRINCIPAL AND SURETY — Contribution Between Sureties — Defense— ■ Bills and Notes. Where a negotiable note passes from the payee to a holder in due course, and such note, after maturity, is paid by a surety, a failure of consideration between the maker and the payee is not available as a defense in an action for contribution by a surety against his cosurety.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Jefferson County; Prank M. Bailey, Judge. </p> <p>Ejectment by Will McKeemie against E. B. Fisher. Judgment for plaintiff, and defendant brings' error.</p>

<p>1. JUSTICES OF THE PEACE — Pleading — Reply — Judgment on Pleadings. A reply not being a necessary pleading in justice court procedure, a motion for a judgment on the pleadings is properly overruled if the bill of particulars of plaintiff states a cause of action.</p> <p>2. PLEADING — Plea of Former Adjudication — Judgment on Pleadings. A plea of former adjudication presents an issue of fact, and one who relies upon a plea of former adjudication is not entitled to a judgment on the pleadings by reason of such plea.</p> <p>3. TRIAL — General Exception to Charge. A general exception to the charge of the court containing a great many distinct instructions, some of which are correct, is not available as error.</p> <p>4. JUSTICES OF THE PEACE — Pleading—'Construction—Exclusion of Evidence. Pleadings in justice of the peace courts should be liberally construed, and an objection to the introduction of any testimony is properly overruled if the bill of particulars states a cause of action.</p> <p>5. APPEAL AND ERROR — Assignments of Error — Sufficiency. Where assignments of error are so general as not to point out the real error complained of, sueh assignments will not be considered by this court.</p> <p>6. APPEAL AND ERROR — Verdict and Judgment — Evidence. Where the evidence reasonably tends to support a verdict and judgment, the same will not be reversed on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>1. MORTGAGES — Validity—Duress—Sufficiency of Evidence. Evidence examined, and held to reasonably tend to prove that the note sued on, together with the mortgage sought to be foreclosed, were executed as a result of menace and threat of unlawful imprisonment, and that the court was right" in sending the question of duress to the jury.</p> <p>2. CONTRACTS — Execution—“Duress.” Tlie question in each such case is: Was the person so acted upon by threats of the person claiming the benefit of the contract, for the purpose of obtaining such contract, as to be bereft of that quality of mind essential to the making of a contract, and was the contract thereby obtained.</p> <p>3. MORTGAGES — Validity—Duress—Ratification. Where the note and mortgage sought to be foreclosed were obtained by duress, and where about six months thereafter one of the defendants, in reply to a letter from plaintiff offering to take the principal only of the alleged debt sought thereby to be secured, replied that as tight as money was all over the country the offer was no inducement, but that if plaintiff had a proposition worth while to let him submit it, held, that such did not constitute a ratification of the alleged contract sought to be enforced.</p> <p>(Syllabus by the Court.)</p>

Frror from District Court, Delaware County; John H. Pitchford, Judge. The petition of S. A. Yeargain and another to disconnect territory from Grove, Okla., was denied, and petitioners bring error.

<p>APPEAL AND EEE.OE — Dismissal—Summons. A petition in error will be dismissed on motion, even though the same is filed within the statutory period, where no waiver of issuance and service of summons is had, and no praecipe for same filed, and no summons is issued or general appearance made within such time.</p> <p>(Syllabus by the Court.)</p>

Mrror from District Court, Kingfisher County; J. W'. Steen, Judge. A claim of George H. Laing was rejected by the Board of County Commissioners of Kingfisher County. From a judgment of the District Court, reversing the ruling of the Commissioners, the Board of Commissioners appeal.

<p> Rrror from District Court, Muskogee County; R. C. Allen, Judge. </p> <p>Action by the Midland Savings & Toan - Company against Charles A. Jones and others. Judgment for plaintiff, and defendant Jones and wife bring error.</p>

<p>TAXATION — Property Subject — Indian Allotment — Exemption. The grant ol nontaxable land to the allottees of the Cherokee Tribe of Indians by virtue of the provisions of an act of Congress of July 1, 1902, c. 1375, 32 St. at L. 716, known as the Cherokee Treaty, covers only the homestead of 40 acres; and the lands of such allottees other than homesteads, from which restrictions have been removed by act of Congress, are subject to taxation</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Location of Depot — Order of Corporation Commission— Validity — Evidence. The Corporation Commission of the state made an order requiring the railway company to move its freight depot to the side of the track next to ■ the town. The company complied with the order removing the freight depot, and appealed from the order as to the other requirements. Held, that the evidence justified the order in requiring the construction of a new passenger depot, but that the safety of the traveling public and the employees would be best served by the location of the depot as proposed by the company, and that under the facts and circumstances in this case the order requiring the location of the depot on the side of the railroad next to the town is unreasonable and without legal sanction.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. J. dissenting.</p>

Error from District Court, Hughes County; John Caruthers, Judge. A claim presented by Rloyd Thomas was rejected in part by the County Commissioners of Hughes County. From a judgment of the district court, affirming the ruling of the commissioners, he brings error.

<p> Error from District Court, Muskogee County; Parrar L. McCain, Judge. </p> <p>Action, between W. J. Colter and others and T. H. Martin and- others. From the judgment, the parties first mentioned bring error.</p>

Error from District Court, Bogan County; A. H. Huston, Judge. Mandamus by H. E. Ardery against R. N. Dunham, city clerk of the city of Guthrie. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Dismissal. A case-made, duly served, was filed in the clerk's office on November 20, 1913. It was not settled and signed by the trial judge until November 22, 1913. Held, that such filing before the same was settled and signed by the trial judge was a nullity and gave no force or virtue to the purported case-made, and where such a purported case-made remains in this court until after the expiration of the statutory time for perfecting the appeal, a motion to dismiss will be sustained.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Dewey County; G. A. Brown, Judge. Action between B. C. Latta and others and Paul Way and another. From the judgment, the parties first mentioned bring error.

Brror from District Court, Okfuskee County; John Caruthers, Judge. Action by I. S. White, administrator of the estate of S. M. White, deceased, against C. E. Armstrong and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Sequoyah County; John H. Pitchford. Judge. </p> <p>Action by Sheridan Foreman against Hattie R. Fish and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Comanche County; Prank M.' Bailey, Judge. </p> <p>Injunction by R. B. Compton against Clifton W. Simpson. From an adverse order, plaintiff brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action between M. Bodovitz and C. M. Campbell and others. From the judgment, Bodovitz brings error.</p>

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action between E. P. Spears and others and the Southern Surety Company. 'From the judgment, the parties first mentioned bring error.

<p>Original mandamus by the State, on the relation of the Oklahoma City Times Company, a corporation, against George Baker, County Treasurer of Oklahoma County, and others.</p>

Error from District Court, Oklahoma County; John J. Carney, Judge. Mandamus by Clifton Ratliff against George E. Fleener and others, members of the county election board of Oklahoma county. Judgment for defendants, and plaintiff brings error.

<p>1. INDIANS — Age — Conclusive Evidence — “Enrollment Record.” The ‘' enrollment records of the Commissioners to the Five Civilized Tribes” which section 3 of the act of Congress, approved May 27, 1908 (35 St. at L. 312, c. 199), declares “shall hereafter be conclusive evidence as to the age” of any enrolled citizen or freedman of said tribes, embrace and include all of the testimony and exhibits tending to establish age that were in evidence before the Commission and the conclusions of the Commission based thereon, from the date of the application for enrollment of any particular allottee up to the time of the ascertainment by the Commission as to whether the name of such allottee was entitled to be placed upon the roll of the nation in which he claimed citizenship.</p> <p>2. INDIANS — Age—Conclusive Evidence — Census Card. Where it appears that the “census card” constitutes the complete “enrollment records,” it is admissible as conclusive evidence of age, not as a “census card,” but as the “enrollment records,” when'so certified by the proper officer.</p> <p>3. INDIANS — Decision of Commission — Conclusiveness. The Commission to the Five Civilized Tribes was a quasi judicial tribunal, empowered to determine who should be enrolled as citizens and freedmen of those tribes, what lands should be allotted to each, and in what way, and its adjudication of those questions and of every issue of law and fact which it was necessary for it to. determine in order to decide them is conclusive and impervious to collateral attack. But its decision, recital, or report regarding issues the determination of which was not indispensable to enable it to decide who should be enrolled, what land should be allotted to those enrolled, and how, is, in the absence of special legislation, such as Act May 27, 1908, c. 199, 35 St. at L. 313, without judicial or other conclusive effect.</p> <p>4. INDIANS — Determination of Ages — Enrollment Records — Conclusiveness. The Commission had no jurisdiction in making its enrollment of the citizens and freedmen of the tribes to determine and conclusively adjudge their respective ages. In the determination of rights which accrued and of the effect of transactions concluded prior to May 27, 1908, the enrollment records of the Commission are not conclusive evidence of the age of any Indian citizen or freedman enrolled thereon.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. X, and Turner, X, dissenting in part.</p>

Error from District Court, Cleveland County; R. McMillan, Judge. Action by Herman Turk against Morgan Sharp and Mary Sharp, his wife, and Albert S. Page. Judgment for plaintiff, and defendant Albert S. Page brings error.

Error from District Court, Okfuskee County; John Caruthers, Judge. Action by Augusta Stephenson, by her next friend, A. P. Stephenson, against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error.

<p> Brror from County Court, Okmulgee County; Geo. A. Johns, Judge. </p> <p>Action by James K. Kepley and Samuel Bright against Clifton H. Drinker and Minnie S. Drinker. Judgment for plaintiffs, and defendants bring error.</p>

<p>APPEAL AND ERROR — -Presentation for Review — Refusal to Retax Costs. Tie ruling of a trial court on motion to retax costs cannot be reviewed by tbe Supreme Court unless made a part of tbe record by bill of exceptions or case-made.</p> <p>(Syllabus by tbe Court.)</p>

Error from County Court, Muskogee County; Thos. W. Leahy, Judge. The county treasurer of Muskogee county listed certain personal property for taxation, and from the judgment pertaining thereto by the county court of Muskogee county, Lewis Duncan brings error.

<p> Error from County Court, Caddo County; C. R. Hume, Judge. </p> <p>Action by the Home State Bank of Hobart, Okla., a corporation, against Jim Clancy. New trial granted, and plaintiff brings error.</p>

<p>JUSTICES OF THE PEACE — Appeal Bond — Eight to Amend. Plaintiff:' filed his suit in replevin in a justice of the peace court to recover possession of certain property and damages. Upon a trial in that court before a jury, judgment was rendered in favor of plaintiff: for $83.75, and in favor of defendants for possession of the property and damages in the sum of $40. Plaintiff filed his appeal bond, which was ajiproved by the justice, and the cause was transferred to the county court. In the county court, defendants moved to dismiss the appeal, on the ground that the bond was for less than double the amount of the judgment appealed from. Plaintiff moved to be allowed to amend said bond, and permission to amend was denied, and the court held that it acquired no jurisdiction on' appeal, and dismissed the appeal. Held, error; the bond, although defective, was sirfficient to confer jurisdiction on the county court, and plaintiff should have been permitted to amend.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Grady County; Will Linn, Judge. Action by J. E. Austin against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiff against defendant named, and it brings error.

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Charles FI. Featherstone against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Cleveland County; P. B. Swank, Judge. Replevin by R. A. Isom against L. B. Iiigbee, wherein J. M. Michael intervened and was made a party defendant. Judgment for plaintiff, and intervener brings error.

<p>1. APPEAL AND ERROR — Case-Made—Time for Service. A ease-made, not served within the time allowed by law, or extended by a valid order of court, is a nullity, and cannot be considered by the Supreme Court on appeal.</p> <p>2. SAME — Presentation for Review — Certificate to Transcript. This court will not review errors assigned upon the record in the absence of a certificate of the clerk showing that the same is a full, true, and correct transcript of the record.</p> <p>(Syllabus by the Court.)</p>

<p>Application by the State, on the relation of Bertha E. Mays, for writ of prohibition to M. A. Breckenridge, Judge of the Superior Court of Tulsa County.</p>

<p>TOWNSHIPS — Contract for Services — Validity. Where there is no “estimate made and approved” by the excise board, as provided by section 3, chapter 80, Sess. Laws 1911, covering compensation and expenses of one employed by a township to furnish blanks and render services incident to the issuance of funding bonds, a contract made by the township board incurring such indebtedness is unlawful, and does not become a charge against the township.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Petition in Error — Time of Filing. When petition in error is not filed in this court for more than six months after the date of the final order sought to be reviewed, this court is without jurisdiction to entertain the appeal.</p> <p>(Syllabus by the Court.)</p>

Brror from District Court, Ottawa County; Preston S. Davis, Judge. Application of the Town of Afton, Ottawa County, to determine existence, character, and amount of its outstanding indebtedness, and to issue bonds to fund the same. From an adverse judgment, the Town brings error.

<p>MUNICIPAL CORPORATIONS — Contract Employing Attorney — Validity. Where the defendant municipal corporation entered into a contract with the plaintiff to appear as an attorney before the Corporation Commission and resist an application of a telephone company to raise its rates, held, in a suit against the municipality to recover thereon a reasonable attorney’s fee, that said contract was not authorized by Wilson’s Rev. & Ann. St. 1903, sec. 347 (Rev. Laws 1910, sec. 541), as necessary to the good government of the city and as an exercise of its corporate powers; and, not being in furtherance of any purpose for which the municipality was created, nor within the general scope of its powers, the same was ultra vires and void.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by the First National Bank of Waurika against Katherine Sorrells and another, wherein Jas. B. Moore and others intervened. Judgment for plaintiff, and interveners bring error.

<p>MORTGAGES — Validity of Mortgage — Foreclosure—-Indian Allotment. Where, prior to the removal of his restrictions, B., a minor Creek freedman, executed a warranty deed for his allotment to S., and put him in possession, and where S., after mortgaging the same to P., deeded the land to G-., who, while in possession, received a valid conveyance thereof from B., and thereafter conveyed the land to J. by deed containing a covenant of warranty against all incumbrances, except a mortgage for 4705 in favor of P., which said amount was withheld by J. from the purchase money of the land, held, in a suit for foreclosure, that although B.'s deed to S. and the mortgage of S. to P. were void, that J. was estopped to deny the validity of the mortgage.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Oklahoma County; A. N. Munden, Judge. </p> <p>Action by H. A. Maisen against Mary E. Cartwright and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from County Court, Jefferson County; B. T. Price, Judge. </p> <p>Action by Jesse P. Cook against G. W. Sorrells and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. EJECTMENT — Eight to Eecover — Existence of Title. Plaintiff instituted this suit in ejectment to recover possession of a certain tract of land in Wagoner county. The undisputed evidence shows that defendant had been in the open and undisturbed possession of said land for more than one year under claim of title, prior to the date of plaintiff’s deed under which he claims title; that neither plaintiff’s grantor nor any one for her had received any rents or had been in possession of said land for more than one year prior to the date plaintiff received his deed. Held, that plaintiff was required to recover upon the strength of his own title; that the deed of conveyance relied upon by him was void ' as against defendant in possession, and was insufficient to entitle plaintiff to recover.</p> <p>2. APPEAL AND EEROB — Verdict—Evidence—Ejectment—Instructions. The court submitted the issues involved to the jury for their determination. The jury returned a verdict in favor of defendant. Instructions of the court fairly cover all the issues involved. Evidence amply supports the verdict of the jury. Held, that said verdict will not be disturbed on appeal.</p> <p>3. VENDOR AND PURCHASER — Interest of Person in Possession —Notice. The possession of real property carries with it the presumption' of ownership, and it is the duty of those purchasing such property from others than those in possession to ascertain the extent of their claims; and the open, actual possession of such property gives notice to the world of just such interest as the xjossessor actually has therein.</p> <p>(Syllabus by the Court.)</p>

<p>2. APPEAL AND ERROR — Mixed Question of Law and Pact — Con-elusiveness of Findings. Where there is a mixed question of law and fact, and the court cannot so separate them as to determine where the error of law is, the decision of the tribunal to which the law has confided the matter is conclusive.</p> <p>3. PUBLIC LANDS — Proceedings in Land Office — Contests—Indian Lands — -Will—Effect as Evidence. Where in a contest before the Secretary of the Interior contestants based their title upon the will of a white man, who intermarried with a Chickasaw woman of Indian blood, purporting to devise to his widow and heirs his improvements upon the public domain, which the Secretary found were thereafter abandoned and became a part of the public domain, held, that the Secretary did not err in laying the will out of the contest before him, for the reason that, if admitted, it was without probative force.</p> <p>(Syllabus by the Court.)</p> <p> Error from Superior Court, Grady County; Will Einn, Judge. </p> <p>Action by Harry E. Hill, a minor, etc., against Erank Reynolds, a minor, etc. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Time for Service — Dismissal. A case-made, not served -within the time fixed by statute, or within the time as extended by the court before the expiration of the statutory period, is a nullity, and on motion the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. GUARDIAN AND WARD — Petition to Sell Realty — Requisites. Under section 6557, Rev. Laws 1910, tke petition of a guardian to sell tke real estate belonging to kis ward must state tke condition of tke estate, and facts tending to skow tke expediency or necessity of suck sale, in order to give tke court jurisdiction to order tke sale.</p> <p>2. ’ SAME — Judgment—Collateral Attack — Petition to Sell Realty— Jurisdiction — Validity of Sale. Wken the petition filed with the county court contains facts substantially in accordance with tke provisions of tke statute, tke court acquires jurisdiction; and, notwithstanding tke proceedings -may be irregular and erroneous, tke judgment rendered will not be void and subject to collateral attack.</p> <p>3. JUDGMENT — “Collateral Attack.” A “collateral attack” on a judicial proceeding is an attempt to avoid, defeat, or evade, ' or deny its force and effect in some incidental proceedings not provided by law for tke express purpose of attacking it.</p> <p>4. GUARDIAN AND WARD — Petition to Sell Realty — Sufficiency. Tke petition filed by tke guardian with tke county court for the sale of kis ward’s land substantially complied with tke statute, and was sufficient to confer jurisdiction on tke court.</p> <p>(Syllabus by tke Court.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Appeal by Charles IT. Ruth and others from the decision of the city clerk of Oklahoma City that a petition styled “Municipal Initiated Petition No. 1” did not contain the requisite number of signers to warrant calling the election as prayed. The district court dismissed the appeal, and Ruth and others bring error.

<p>Original mandamus by the State, on the relation of Seward K. Lowe, against.O. E. Pruett, Clerk of the District Court of Beaver County.</p>

<p> Error from County Court, Pawnee County; Geo. B. Merritt, Judge. </p> <p>Action by Shirley & Young, co-partners, against J. A. Le-Force and W. J. Phelps. Judgment for plaintiffs, and defendants bring error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action between J. B. Caswell and another and Ernest Eaton, administrator of the estate of W. M. Eaton. From the judgment, the parties first mentioned bring error.

<p>1. MORTGAGES — Foreclosure — Petition-—Requisites. In an action to foreclose a mortgage, it is not necessary for the plaintiff, in his petition, to set forth with particularity the character of title held by an adverse party in the mortgaged premises.</p> <p>2. INDIANS — Indian Lands — Oil and Gas Lease — Mortgage—Approval by Secretary of Interior. Under the act of Congress of March 3, 1905, e. 1479, 33 St. at L. 1061, the approval of the Secretary of the Interior was not necessary to the validity of a mortgage of an oil and gas lease in the Osage Nation.</p> <p>3. SAME — Lands — Mortgages ■— Foreclosure — Petition—Sufficiency. Petition examined, and held to state a cause of action.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garfield County; James B. Cullison, Judge. </p> <p>Action by the City of Enid against the Enid City Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>JUSTICES OF THE PEACE — -Garnishment Proceedings — Continuance— Failure to Grant — -Abandonment. Under Gen. St. Kan. 1909, see. 6418 (Laws 1879, e. 129,- as amended by Laws 1901, c. 279), where a party files a bill of particulars before a justice of the peace against a nonresident defendant, the summons being returned “Not found," and causes a garnishment summons to be served upon a creditor of such nonresident defendant, the justice must continue the cause for not less than 30 nor more than 50 days, within which time publication service must be made upon defendant, as in attachment, and the failure so to do amounts to an abandonment of the suit, and the garnishment falls, and such garnishment proceeding cannot be pleaded in bar or abatement of a suit by such nonresident defendant against his creditor, the garnishee, in the state of Oklahoma.</p> <p>(Syllabus' by the Court.)</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by Alice V. Grayson against Thomas J. Durant and others. Judgment for certain defendants, and plaintiff and other defendants bring error.</p>

<p> Error from District Court, Ottawa County; Preston S. Davis, Judge. </p> <p>Action by the State Bank of Miami against the City of Miami. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Rogers County; H. Tom Right, Judge. </p> <p>Action by the Colonial Jewelry Company against J. W. Bridges. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Willie Taylor, a minor, by his next friend, J. S. Dodson, against E. W. Reid. Judgment for plaintiff, and defendant brings error.

<p>1. INSURANCE — Renewal-—Estoppel. Where a surety company has continued in force, from year to year, its bond indemnifying a bank against pecuniary loss by reason of the dishonesty of its cashier, upon representation by the bank that the books and accounts of such cashier were examined from time to time in the regular course of business and found correct, such surety company is estopped to deny liability by reason of the fact that such examinations were made at periods m.ore extended than those provided for in the original application for the bond.</p> <p>2. SAME — Fidelity Insurance — Examination of Accounts. Where the contract of a surety company indemnifying a bank against loss by reason of the larceny or embezzlement of its employee provides that the books and accounts of suck employee shall be examined by the officers of said bank, it is charged with a knowledge of the race, intelligence, and business capacity of such officers, and is not entitled to have such books and accounts examined and reported upon by expert accountants.</p> <p>(Syllabus by the Court.)</p>

A complaint was filed with the Corporation Commission by the Twin Valley Telephone Company of Morrison and another against the Pioneer Telephone & Telegraph Company, and from the order of the Commission, the latter company brings error.