Volume 44 — Oklahoma Reports

<p> Error from District Court, Pontotoc County; </p> <p>Action by The Spaulding Mfg. Co., a partnership, against W. H. Dill, H. G. Malot, and M. W. Krause. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Grady County; Action by the School Board of School District No. 31, Grady county, Okla., a corporation, suing by R. C. Murnan, director, against the Shawnee Mutual Fire Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error.

Brror from District Court, Osage County; Action by Jesse Littlejohn against the Midland Valley Railroad Company, for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>1. ATTORNEY AND CLIENT — Attorney’s Fee — Corporations. Where C. is contractually bound to pay attorneys the reasonable value of all their services, in the greater part beneficial to a corporation in which C. is a stockholder and in the other part beneficial only to C. as an individual, where the court in which the service is performed makes and said attorneys accept an allowance against- said corporation, in part satisfaction of said fee, in the sum of $10,000, in full for such services beneficial to said corporation, and where said sum of $10,000 is less than that portion of the whole fee fairly referable and apportionable to said services beneficial to said corporation, C. is released from liability for said $10,000, plus the amount in excess thereof so fairly referable and apportionable, and is thenceforth liable only for such portion of the whole fee as is fairly referable and apportionable to the services not so beneficial to the corporation.</p> <p>2. EVIDENCE — Opinion—Probative Effect — Value of Attorney’* Services. The opinion of witnesses as to the value of services of attorneys is not conclusive upon the jury; and, notwithstanding such opinion, the jury may find such value to be less, within the bounds of reason.</p> <p>3. APPEAL AND ERROR — Instructions—Presumption. It must be presumed that the jury followed the instructions of the court, although same are erroneous,' whenever their verdict is susceptible of explanation upon any theory other than that they have not done so.</p> <p>4. EVIDENCE — Competency—Value of Attorney’s Services. Where a witness has not heard quite all the evidence to which he is referred as the premise for his opinion as to the value of services of attorneys, where neither the portion heard nor the portion unheard 'is specifically shown, and where it appears that he probably erroneously assumed in the predicate for his opinion that such attorneys’ right to compensation under their contract of employment was contingent upon the success of their services, it is error to permit him, over objection, to give, as evidence, his opinion as to the value of such services.</p> <p>5. EVIDENCE — Opinion Evidence — Hypothetical Question. It is within the discretion of the trial court to permit a qualified witness, who has heard all the evidence, in which there is no material conflict and which is sufficiently comprehensive of the facts fairly essential to be considered, to which he has been referred as a'premise for his opinion as to the value of the services of attorneys, to give his opinion as to such value from such evidence, without putting to him the usual hypothetical form of question embodying a statement of the premise for the opinion; and there is no error where there is no abuse of such discretion.</p> <p>G. WITNESSES — Cross-Examination—Opinion—Value of Services. Where a witness has given his opinion as to the value of services, it is error to refuse to permit him to be cross-examined as to any prior statement or conduct susceptible of being reasonably considered inconsistent with or disprobative of .such -opinion.</p> <p>7. APPEAL AND ERROR — Presumptions—Jurisdiction—Property Subject to Attachment. Where defendant is a non-resident of this state who was not and could not be personally served with summons within this state, and the jurisdiction of the cause of action is dependent upon notice by publication and attachment of his one-half undivided interest as a lessee in a lease-hold estate in lands beneficially owned by a member of the Creek Tribe of Indians, and subject to the supervision of the Secretary of th? Interior, but neither the lease contract nor any term thereof in any manner appears, it will be assumed that such property is subject to such attachment.</p> <p>ON REHEARING.</p> <p>8. ATTORNEY AND CLIENT — Action for Fees — Petition—Construction. Where a petition of attorneys for the recovery of an unpaid balance of reasonable compensation for their services as such in a prior action by the^present defendant, "who there sued in his own right in respect to a part of the relief sought'and in the right of a corporation in respect to the other relief sought, and who engaged the services of plaintiffs upon his own obligation to pay them for the whole of their services such sum as the same were reasonably.worth, alleges that “said suit was expected to and did result in a decree in part beneficial to said” corporation, and “the court trying said cause fixed and adjudged attorney’s fees and compensation against said” corporation “in favor of the plaintiffs”; that “the services, so as aforesaid rendered to the defendant, excluding the allowance aforesaid, are of the reasonable value of ten thousand ($10,000) dollars; that the said defendant at the time of the bringing of said suit paid the plaintiffs the sum of five hundred dollars ($500); and that the balance, to wit, the sum of nine thousand and five hundred dollars ($9,500) is still due the plaintiffs, and unpaid,” etc., where there is no other pertinent allegation, and where the order of the court making such allowance recites that the same is in full of all services beneficial to such corporation, such petition will be construed as demanding such balance after allowing as a credit upon the whole fee to which plaintiffs were originally entitled the amount so allowed by said court according to the terms of the order of such allowance; and plaintiffs are. not entitled upon such allegation to recover as such balance additional compensation for any portion of their services beneficial to such corporation, especially where it appears from their own evidence that such order was m'ade at their request and in their own right, and at a time when defendant was represented by other counsel in respect thereto.</p> <p>9. CORPORATIONS — Action by Stockholder — Attorney’s Fees— Right to Allow — Amount. Where a stockholder, who is not directly injured nor entitled to sue in his own primary right, sues in a federal court in the primary right of his corporation, which had been directly injured, for relief for which such- corporation should have sued, and such suit results in benefits direct to such corporation, so that such stockholder and his attorneys may properly be regarded as representing such corporation in such suit, the court trying the case has the power to allow, and may rightfully allow, such attorneys full compensation for their services, which were successful and resulted in such benefits, out of any corporate funds in its hands or corporate property under'its control in such suit, and in fixing the amount of such allowance, where such stockholder employed such attorneys upon a contract to pay them the reasonable value of their services, the order of allowance is not necessarily limited to the value of the services which resulted in bringing funds into court or property under the control of the court, but may be for full compensation for all such services as resulted in such benefits to such corporation, provided there are such funds or is such property, out of which the same may be paid.</p> <p>(Syllabus* by Thacker, C.)</p>

Error from County Court, Woods County; Action by J. E. Peoples against 'John -Wiebener and another for balance claimed on building contract. Judgment for plaintiff, and defendants bring error.

<p>1. ELECTION OF REMEDIES — Action on Contract — Action ex Delicto. In respect to a neglected duty imposed by law, by reason of a relation of the parties created by contract, the injured person may elect to sue upon the contract, or treat the wrong as a tort and bring an action ex delicto.</p> <p>2. PLEADING — Petition—Exhibit. In an action for alleged negligent injuries by a common carrier to live stock in transit, a copy of the bill of lading or shipper’s contract is not required, by section 3996, St. Okla. 1893 (section 4769, Rev. Laws 1910), to be attached to the petition, although the petition does not allege any reason for failure to attach same.</p> <p>3. COMMERCE — Interstate Shipments — Federal Statute. Section 9, art. 23 (section 358, Williams’ Ann. Ed.), Constitution of Oklahoma, and all state laws which would otherwise affect interstate shipments and contracts'pertaining thereto, are superseded and excluded by the federal laws in. this regard. U. S. Comp. St. Supp. 1911, p. 1284.</p> <p>4. CARRIERS — Shipment Contract — Limitation of Liability. In respect to intrastate shipments and contracts, any provision, express or implied, “stipulating for notice or demand other than such as may be provided by law, as a condition precedent to establish any claim, demand, or liability, shall be null and void,” under section 9, art. 23 (section 358, Williams’ Ann. Ed.), Constitution of Oklahoma.</p> <p>5. SAME — Burden of Proof]' Where a defendant carrier relies on a general denial and the alleged failure of the plaintiff suing for damages on account of injuries to live stock in transit to give notice of such injuries in accord with a contract of shipment, which appears upon its face and from defendant’s own allegations to be an intrastate contract for an intrastate shipment in no wise related to or connected with any interstate shipment or contract, and which makes such notice in terms a condition precedent to plaintiff’s right of action, the execution of which contract is denied by plaintiff, such requirement of notice is null and void under section 9, art. 23 (section 358, Williams’. Ann. Ed.), Constitution of- Oklahoma, notwithstanding plaintiff alleges in his petition and makes prima facie oral proof of a through shipment of the live stock from a place in another state, under another contract not in evidence, to the place of destination under said alleged intrastate contract; this being 'an affirmative defense, and the burden of allegation and proof of same being upon the defendant.</p> <p>6. SAME — Connecting Carriers — Liability—Presumption. In the absence of any arrangement constituting the carriers partners or joint, or joint and several, undertakers, each carrier (except the initial carrier in an interstate shipment under the Carmack Amendment [Act. June 29, 1906, c. 3591, section 7, pars. 11, 12, 34 St. at L. 593 (U. S. Comp. St. Supp. 1911, p. 1307)]) is liable only for loss or injury occurring on its own line; and there is no presumption of such injury on the line of an intermediate one of a series of connecting carriers from the mere fact of such carriage.</p> <p>7. SAME — Injury to Shipment — Liability—Presumption. The Carmack Amendment (Act June 29, 1906, c. 3591, section 7, pars. 11, 12, 34 St. at L. 593 [U. S. Comp. St. Supp. 1911, p. 1307]) to the interstate commerce law (Act Feb. 4, 1887, c. 104, section 20, 24 St. at L. 386 [U. S. Comp. St. 1901, p. 3169]), imposing liability on an initial carrier for loss, damage, or injury to property occurring anywhere on the through route, did not abrogate the rule of evidence that property received in good order by the initial carrier is presumed to have Been received in like good order by the succeeding carrier, and that final delivery in bad order raises a rebuttable presumption that the injury occurred on the delivering carrier’s line.</p> <p>(Syllabus by Thacker, C.)</p>

Error from District Court, Jefferson County; Action by W. A. Eakin and others against W. J. Chapman, County Treasurer, and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Creek County; Action by Alva C. Eaton against the Producers’ Oil Company, for personal injury. Judgment for plaintiff, and defendant brings error.

<p> Error from County Court, Johnston County; </p> <p>Action on promissory note by the McKinney Nursery Company against W. M. McDonald. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kiowa County; Action by Wm. Cameron & Co. against the Consolidated School District No. 1 of Kiowa County, Okla., Link Cowen and Jack Kahoe, doing business under the firm name of Cowen & Kahoe or Kahoe & Cowen, Commerce Trust Company, a corporation, and C. T.' Herring Lumber Company, a corporation, for debt against said Cowen & Kahoe individually and as such copart-ners, and for foreclosure of materialman’s lien against said School District, as…

<p>1. APPEAL AND ERROR — Review—Assignment of Error — Ruling on Motion for New Trial. Errors occurring during the trial cannot be considered by the Supreme Court, unless the ruling of the trial court on the motion for a new trial is assigned as error.</p> <p>2. QUIETING TITLE — Parties—Petition—Sufficiency. Petition ex-• amined and held to state a cause of action, under section 6121, Comp. Laws, 1909 (Rev. Laws J910, section 4927).</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>APPEAL AND ERROR — Dismissal—Time of Taking Appeal. Where the petition in error is not filed in the Supreme Court within six months from the rendition of the judgment or final order complained of, this court is without jurisdiction to.review such judgment or final order, and the same will be dismissed.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from County Court, Garfield County; Action by C. J. Burbank and another agáinst the Altoona Portland Cement Company for breach of an oral agreement. Judgment for plaintiffs, and defendant brings error.

<p> Brror from District Coicrt, Muskogee County; </p> <p>Action by Kent Strahan and another against the Town of Ft. Gibson and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from County Court, Harper County; </p> <p>Action by Peter Longhoffer against Conrad Stebbens, defendant, and Lizzie Stebbens, intervener. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Grady County; Action by the Kentucky Bank & Trust Company and another against W. H. Pritchett and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Blaine County; </p> <p>Action by R. M. Green against A. R. Rehbine and another Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Settlement of Controversy — Dismissal of Appeal. Where, prior to the determination of a proceeding in error in this court, it becomes known to the court that the controversy has been fully settled and determined, and this fact is admitted by counsel, the appeal will be dismissed.</p> <p>(Syllabus by Sharp, C.)</p>

<p>APPEAL AND ERROR — Assignment of Error — Denial' of New Trial. Errors alleged to have occurred during the progress of -the trial cannot be considered by this court, unless ■ the overruling of the motion for a new trial is assigned as error.</p> <p>(Syllabus by Rittenhouse> C.)</p>

Error from County Court, Bryan County; Action by W. H. Phillips, administrator of. the estate of T. J. Patillo, against E. L. Dillingham, administrator of the estate of N. T. Dillingham, deceased, and others. Judgment for defendants, and plaintiff brings error.

<p>INDIANS — Allotment—Lease—Validity. Under Act June 28, 1898, c. 517, 30 St. at L. 495, and Act May 27, 1908, c. 199, 35 St. at L. 312, which provides that no allottee shall lease his allotment or any portion thereof for agricultural purposes for a longer period than five years and then without privilege of renewal, a lease executed by a citizen of the Choctaw Nation during the life of a prior valid lease, but which does not exceed in the aggregate the term of five years from the date of the new lease, is valid.</p> <p>(Syllabus by Rittenhouse. C.)</p>

<p> Error from Superior Court, Oklahoma County; </p> <p>Action by Franklin L. Gast and others, against E. A. Barnes, Judgment for defendant, and plaintiffs bring error.</p>

Error from County Cotirt, Choctaw County; Action of forcible entry and detainer by T. E. Ball against Mart Dancer and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Garvin County; </p> <p>Action by Uou Dees and others against the Gulf, Colorado & Santa Ee Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. GARNISHMENT — Issuance of Writ Before Judgment — Right. A creditor may have the aid of garnishment process, before judgment in a suit based on a contract, and not sounding in damages, by taking the steps required by statute.</p> <p>2, APPEAL AND ERROR — Change of Contention — Invited Error. A litigant will not be permitted to try a case in the lower court upon a distinct theory, and then in this court change theories and complain of an action of the court which he has invited.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Tillman County; </p> <p>Action between W. T. Waggoner and J. H. Mounts and W. A. Stinson, a copartnership. From the judgment of the court Waggoner brings error.</p>

Error from County Court, Atoka County; Action by E. W. Adams & Co. against the American National Bank and another for possession of á stock of shoes. Judgment for plaintiff, and defendants bring error.

<p>APPEAL. AND ERROR — Failure to File Brief — Dismissal. Where the plaintiff in error fails to file brief, as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Brror from District Court, Osage County; </p> <p>Action by Ed. Brown against W. S. Conness and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Craig County; </p> <p>, Action by R. Vance McSpadden against L. B. Campbell and another. Judgment for plaintiff, and defendant Campbell brings error.</p>

<p> Error from County Court, Tulsa County; </p> <p>Action by R. R. Roberts against A. F. Ault. Judgment for plaintiff, and defendant brings error.</p>

<p>1. INDIANS — Deed to Indian Allotment — Action to Cancel — Infancy of Grantor — Burden of Proof. Where an Indian allottee brings an action to cancel certain deeds and mortgages affecting his allotment, on the ground that he was an infant when the same were executed, he thereby assumes the burden erf proof in establishing the fact of his infancy.</p> <p>2. SAME — Enrollment Records — Conclusiveness—Probative Effect —Age of Indian Allottee. In an action to cancel conveyances' affecting an Indian allotment consummated prior to the ’approval of Act Cong. May 27, 1908, c. 199, 35 St. at L. 313, section 3, the “enrollment records” are not conclusive evidence ■ as to the age of the allottee. In such case his age is a question of fact, to be proved by competent testimony, as any other fact at issue in the case. ,</p> <p>3, SAME — Allotments—Mortgage—Foreclosure—Parties. An Indian allottee, having- the right to convey his allotment, who executes a mortgage on a part thereof and afterwards conveys the same land by warranty deed, has parted with all his title to and interest in such land, and is not a necessary party to the foreclosure proceedings commenced by his mortgagee, where no personal judgment is prayed against him.</p> <p>4. EVIDENCE — Hearsay—Age. A witness may, partly in view of the corroborative facts known to him, testify as to his own age from hearsay; but he may not be permitted to testify as .to the age of another person upon the basis of hearsay or reputation.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Oklahoma County; </p> <p>Action by the Midland Elevator Company against Frank Harrah on a promissory note. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court„ Oklahoma County;</p> <p>Action by the Midland Elevator Company against the Har-rah-Robb Grain Company upon an account. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; </p> <p>Action by the Midland Elevator Company against R. E. Ro-bey for balance due on a promissory note. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Seminole County; Action by Cora D. Coblentz against Almond D. Cochran to remove cloud from title. Judgment for defendant, and plaintiff brings error.

<p> Error from District Court, Blaine County; </p> <p>Action by the State against Ralph Hawkins and others on a forfeited appearance bond. Judgment for plaintiff, and defendant Charles W. Ruckman brings error.</p>

<p>1. COUNTIES — Liability for Claim — Burden of Proof. One who demands payment of a claim against a county must show some statute authorizing it, or that it arises from some contract, express or implied, which finds authority of law; and it is not sufficient that the services performed for which payment is demanded were beneficial.</p> <p>2. SAME — County Treasurer — Compensation—Extra Duties. When the Legislature increases the duty of an officer, by the addition of other duties germane to the office, he must perform them without extra compensation, unless extra compensation is provided for by law.</p> <p>3. OFFICERS — Compensation—Burden of Proof — Statute. Before an officer in this state is entitled to draw money from the public treasury for fees or compensation, he must be able to point out statutory authority for its payment to him.</p> <p>4.. COUNTIES — Compensation of Officers — Allowance of Illegal Claim — Effect to Bar Suit to Recover. The board of county commissioners is without jurisdiction to allow a claim of a county officer for compensation not authorized by law; and an order so doing-, though unappealed from, is not a bar to a suit by the proper authorities to recover the sums illegally drawn from the county treasury by means of such order.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from County Court, Okfuskee County; </p> <p>Action by C. M. Serán against the Ft. Smith & Western Railroad Company. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Kingfisher County; Action by Rettie Henderson against Robert Ray, Frank Ray, Francis Baxter, and Guy E. McCandless. Judgment for plaintiff against the three defendants first named, and they bring error.

<p>|. COURTS — Jurisdiction of Cause. In so far as jurisdiction is concerned,' a surety on a guardian’s bond, executed in Arkansas pursuant to the laws of that state, may, upon his removal thereafter to Oklahoma, be sued in the courts of Oklahoma for for a breach of the bond.</p> <p>2. CONTRACTS — Construction of Foreign Contract — What Law Governs. Where a contract made in a foreign state is sought to be enforced in another state, the lex loci contractus controls the construction of the contract, except where it provides otherwise, and the laws of the state where the contract was made will be observed, of course being pleaded when necessary, in determining the rights and obligations of the parties, and effect given thereto, unless such foreign laws are irreconcilable with the local laws, or conflict -with the established policy of the enforcing state,</p> <p>,3. SAME. There is a wide difference between putting a foreign statute in active operation and treating a transaction of which the court has jurisdiction as it is modified, affected, or characterized by the law that operated upon it where it took place.-</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. CORPORATIONS — Organization—Statute Authorizing — '“Educational Corporation.” A private corporation, promoted to “collect, arrange, classify, and display at the Jamestown Exposition the agricultural, horticultural, mineral, manufacturing, and other divers. resources of the state of Oklahoma,” is educational in its primary object, and was authorized to be formed under section 930 of the Statutes of 1893, as amended by the Act of March 3, 1903 (Sess. Laws 1903, c. 9, art. 1, sec. 1), providing that private corporations may be formed for the purpose of “mining, manufacturing and other industrial pursuits, * * * literary, educational and scientific and historical associations.”</p> <p>2. PARTNERSHIP — Corporate Stockholders and Officers — Liability as Partners. Neither the stockholders nor the officers and directors of such corporation are liable as partners for its debts.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Oklahoma County; </p> <p>Action by Stephen Brown against Lee Cruce and others. Judgment for defendants, and plaintiff brings error.</p>

<p>EVIDENCE — Best and Secondary — Indians—Age of Allottee — Enrollment .Records — Conclusiveness as Evidence. "Where the only evidence contained in the case-made which tends to establish the age of a Choctaw allottee is the oral testimony of the custodian of the enrollment records, and such case-made does not contain the enrollment records or a certified copy thereof, there is not sufficient evidence in the record to support the judgment, as the enrollment records of the Commissioner to the Five Civilized Tribes are conclusive as to the age of a Choctaw allottee, where the conveyances involved were executed subsequent to the act of May 27, 1908, c. 199, 35 St. at L. 312.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Ee Flore County -; </p> <p>Action by Jane Ritchford against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where plaintiff in error has failed to file a brief as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Osage County; </p> <p>Action by the Town -'of Foraker; Osage County,. Oklahoma, a municipal corporation, against J. T. .Dunn. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Assignment of Error — Denial of New Trial. Errors alleged to have occurred during the progress of a trial cannot be considered by this court, unless the overruling of the motion for a new trial is assigned as error.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from District Court, Custer County; </p> <p>Action by G. M. Anderson against Joseph Tatro. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Muskogee County; </p> <p>Action by Ellen Sango and others against Laura Parks and others, to cancel deeds to real estate. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. JUDGMENT — “Res Judicata” — Requisites of Plea. In order to constitute a good plea of res judicata, the following elements should be apparent: First, the parties or their privies must be the same; second, the subject-matter of the action must be the same; third, the issues must be the same, and must relate to the same subject-matter; fourth, the capacities of the persons must be the same in reference to the subject-matter and to the issues between them — and where these elements are clearly apparent, the plea should be sustained.</p> <p>2. SAME — Conclusive ness — Matters Concluded. A judgment of a court of competent jurisdiction delivered upon the merits of a cause is .final and conclusive between the parties in a subsequent action upon the same cause, not only as to all matters actually litigated and determined in the former action, but also as to every ground of recovery or defense which might have been presented and determined therein.</p> <p>•3. SAME — Res- Judicata — Question of Law. When a former judgment is set up as a bar or estoppel, the question whether there is such an identity of the parties and of the subject-matter or cause of action as will support the plea of res judicata is a question of law for the court when it is determinable from an inspection of the record.</p> <p>(Syllabus by Harrison, C.)</p>

Error from District Cotirt, Lincoln County; Action by John B. Gordon- and another against John W. McCuan, as executor, and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Grady County; </p> <p>Action by J. D. Dennis against the Chicago, Rock Island' & Pacific Railway Company. Judgment for plaintiff, and.defendant brings error.</p>

<p>1. COUNTIES — Illegal Claim — Liability of Claimant. A county officer, who has presented to the board of commissioners claims not specifically authorized by law and had the same allowed and paid, is liable to the county for the amount of such claims, although no appeal was taken from the action of the board in allowing the same</p> <p>2. SAME — County Officers — Allowance of Claim. Before a county officer can rightfully draw money from the county treasury, either for salary, fees, expenses, or extra compensation, he must be able to point to some constitutional or statutory provision or some lawful contract, either express or implied, that justifies his claim to such money.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Brror from District Court, Grant County; </p> <p>Action by the Board of Commissioners of Grant County against J. D. Orendorff. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Grant County; </p> <p>Action by the Board of County Commissioners- of Grant County, Okla., against John Huntington and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Grant County; </p> <p>Action by Board of Commissioners of Grant County against E. B. Hamilton and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from County Court, McClain County; </p> <p>Action by J. H. Henson and another against the St. Louis & San Francisco Railroad Company, a corporation, and another. Judgment for plaintiffs, and the defendant named brings error.</p>

<p>NEW TRIAL — Grounds—Newly Discovered Evidence. It is the general rule that newly discovered evidence, merely cumulative in its nature, will not, ordinarily, be sufficient to require the granting of a new trial; but where such newly discovered evidence goes to the pivotal point in the case, and is of such a character and so convincing in its nature that it is’ clear that with this evidence in the case a different result would have been reached, the court, in the interest of justice, should grant a new trial.</p> <p>(Syllabus by Brewer, C.) .</p>

<p>On motion to strike second petition for rehearing.</p>

<p> Error from District Court, Carter County; </p> <p>Action by Westheimer & Daube against the Chicago,'Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. WITNESSES — Evidence — Admissibility — Impeachment. On the trial of a civil action it is competent for the defendant to prove that a witness testifying- in behalf of the plaintiff, in furtherance of the identical cause and for the purpose of prevailing therein, had been guilty of base, dishonorable, or criminal conduct. Such evidence is admissible in behalf of the defendant, both to discredit the witness and to throw suspicion upon the justice of the cause of action.</p> <p>2. APPEAL AND ERROR — Failure to File Brief — Reversal. Where a plaintiff in error has prepared, served, and filed a brief as required by the rules of this court, and there is no brief filed on the part of the defendant in error, and no reason given for its absence, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Carter County; Action by the John P. London Company against the Chickasaw Lumber Company, Oscar Gray, Josie Gray, and W. C. Daniel. Judgment for plaintiff, and the defendants W. C. Daniel and Josie Gray bring error.

<p> Error from County Court, Carter County; </p> <p>Action by Moran Scott against Chin Goon. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grant County; Action by the Board of County Commissioners of Grant County against Roy J. Russell and his sureties on his bond as County Treasurer. Judgment for plaintiff, and defendant Russell brings error.

<p>VENUE — Nonresident of County — Acquisition of Jurisdiction. The defendant in error, a resident of Harmon county, was found in Greer county, and was there sued on contract and summons served upon him. He went voluntarily into Greer county on his own private business. He was not “going, returning, or attending (court) in obedience to a subpoena,” nor was he in Greer county through any artifice, trickery, fraud, or the procurement of the plaintiff. Held, the court had jurisdiction of the person of defendant and committed reversible error in holding otherwise.</p> <p>(Syllabus by Brewer, C.)</p>

<p>INNKEEPERS — Loss of Guest’s Property — Burden of Proof. H., a traveling .salesman, while a guest of defendant hotel, deposited with it for safe-keeping $390. It was not called for until about three or four weeks later. In the meantime he was a registered guest a part of the time, and part of the time he was away and not technically a guest. The money could not be found when demanded, and suit was brought for the amount deposited. Held, that the burden of proof was not on H. to show that he was a registered guest at the precise time the money was lo.st.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from Superior Court, Pottawatomie County; </p> <p>Habeas corpus by Henry A. Snow against Melton Smith and others. Judgment for defendants, and plaintiff brings error.</p>

<p>TRIAL — Directing Verdict. The question presented to a trial court on a motion to direct a verdict is whether, admitting the truth of all the evidence which has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be rea-onably drawn from it, there is enough evidence to reasonably sustain a verdict, .should the jury find in accordance therewith.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Dezvey County; Condemnation proceeding by the Wichita Falls & Northwestern Railway Company against Elijah D. Harvey and his wife, Setta Harvey. Judgment for defendants, and plaintiff brings error.

<p>S. APPEAL AND ERROR — Evidence—Review—Opinion Evidence —Qualifications of Expert. The question of opinion evidence is addressed very largely to the sound discretion of the trial court, and its ruling that the witness is sufficiently qualified will not ordinarily be disturbed unless it clearly appears that this discretion has been abused.</p> <p>2. . .EVIDENCE — Opinion Evidence — Value—Competency of Expert. The question of opinion evidence as to the value of farm property does not ordinarily involve a question of science or skill- upon which only an expert possessed of technical training. can speak. But ordinarily where the value of farming’lands is an issue, intelligent persons living in the vicinity of the property involved, who are acquainted with the market value of similar property in the locality, and of the particular property in question, may give their opinion as to its value.</p> <p>3. EMINENT DOMAIN' — Appeal—Review—Excessive Damages* In an action for damages sustained by a railway right of way across one’s premises, where four or five witnesses living in the vicinity of and well acquainted with the land have testified to the value of the land both before and after the railway was built, and thereby fix the amount of damages sustained by the owner of the land, and the verdict of the jury is for an amount far less than the amount fixed by the witnesses, such verdict will not be disturbed because of lack of sufficient evi- . dence to sustain same, and, in the absence of some showing to the contrary, it will rtot be disturbed on the ground that the jury was influenced by bias and prejudice, and that the verdict was excessive.</p> <p>(Syllabus by Harrison, C.)</p>

<p>L ATTORNEY AND CLIENT —Assignment of Claim — Fraud-Evidence- Plaintiff, who resided .in New York, employed the ■ defendant;.an attorney who resided-in Nebraska, to collect a sum due her from the estate of her deceased guardian. Her claim was allowed as a preferred claim, but defendant never informed her of that fact. Defendant admits that he never doubted that it would be paid in full. He wrote plaintiff letters containing expressions indicating that there was some doubt as to whether the claim would be paid in full. He then wrote her a letter purporting to give a complete statement of the status of the estate. The letter contained a statement of the assets and liabilities of the. estate, stated that the estate would not likely pay in full, expressed the opinion that it would not pay more than 60 per cent., and advised the acceptance of $2,500 offered for her claim. Acting upon the statements of the letter, she assigned the claim for $2,500 to a business associate of defendant. The claim was for nearly $3,500. At the time she assigned it the defendant knew that $2,000 would be paid soon, and he had collected that amount before he remitted to the plaintiff, and this, with $250 more, was the money she received for her claim. It was paid in full to defendant’s business associate. Held, that a finding that she was not fraudulently induced to assign the claim is not supported by the evidence, though the defendant had at other times written, in effect, that he thought she would get her money in full by waiting.</p> <p>2. SAME. The fact that she may have had information from other sources that her claim would be paid in full will not relieve defendant from the consequences of his fraud.</p> <p>3. ATTORNEY AND CLIENT — Duty of Attorney to Client — Good Faith. It is the duty of an attorney to act with entire good faith toward his client, and his client has a right to act upon his information and advice as against information received from another, where the client has no means of obtaining knowledge except through information from others.</p> <p>4. SAME — Assignment of Claim — Fraud—Notice. The fact that in her original statement of the claim she had asked that it be preferred was not notice to her that the claim would be paid in full, such as relieved defendant from the consequences of the letter fraudulently written to induce her to assign the claim for less than its value.</p> <p>5. LIMITATION OF ACTIONS — Fraud. The statute of limitations does not bar an action for fraud until two years after the fraud is discovered.</p> <p>6. COURTS — Jurisdiction—Enforcement of Penalty Under Statute of Foreign State. A statute of Nebraska providing that an attorney guilty of fraud and deceit shall forfeit treble damages imposes a penalty which is not enforceable in the courts of this state-</p> <p>7. PLEADING — Variance—Treble Damages. Where a petition, alleges all the facts showing fraud and the amount of actual damages, but prays for treble damages, which are not recoverable, the court may disregard the prayer, and render judgment for actual damages.</p> <p>8. LIMITATION OF ACTIONS — Fraud—Notice. The plaintiff residing in New York is not charged with notice of a fraud practiced upon her by her attorney in Nebraska so as to start the statute of limitations because the records of the court in Nebraska would show the fraud, where the attorney was acting for her in the matter concerning which the record was made, and was charged with the duty of informing her as. to the state of the record, and she had no means of ascertaining what the record showed, except by correspondence with her attorney.</p> <p>(Syllabus by Rosser, C.)</p>

<p>1. APPEAL AND ERROR — Presentation for Review — New Trial. Where the record contains no order of court overruling the motion for new trial, and matters occurring at the trial are the only points urged in the assignments of error, there is nothing properly before this court for review.</p> <p>2. APPEAL AND ERROR — Case-Made'—Dismissal. Where a case-made is. not served within the three days allowed by law, and contains no order of court, made within the three days, and filed with the clerk, allowing an extension of time, the court is without jurisdiction, and the appeal will be dismissed.</p> <p>(Syllabus by Bréwer, C.)</p>

<p>LIMITATION OF ACTIONS — Recovery of Realty. Certain town lots were sold under execution, in a mortgage foreclosure sale, March 16, 1897. The sale was confirmed by the district court on June 7, 1897, and a sheriff’s deed issued to the purchaser, which deed was placed of record August 11, 1897. The judgment debtor brought suit to recover the property August 1, 1911. Held, that the suit could not be maintained, because barred by the five-year statute of limitations. Section 4655, Rev. Laws 19101</p> <p>(Syllabus by Brewer, C.)</p>

<p>APPEAL AND ERROR — Record—Dismissal. Where the only questions presented by a record are to be determined from the pleadings and journal entry of judgment, and where the purported pleadings and journal entry contained in such record bear no copy of filing marks or other evidence that the originals were ever filed in the trial court, such records present nothing- to this court for decision and the appeal will- be dismissed.</p> <p>(Syllabus by Harrison, C.)</p>

<p>1. PRINCIPAL AND SURETY — Bills and Notes — Extension-Release of Surety. Where the maker and payee of a note extend the time of its payment by a valid agreement, for a consideration, so to do, without the knowledge or consent of a surety thereon, this will, ordinarily, release the surety from his obligation to pay the note; provided, the relation of surety is disclosed on the face of the note, or the payee has other notice of same at the time of taking the note.</p> <p>2. HOMESTEAD — Mortgages—Validity. A wife has the right to join her husband in a mortgage of the homestead, to secure the payment of a note of the husband, where the consideration of the same came to him alone; and such a mortgage is valid and enforceable without any part of the consideration passing directly into the hands of the wife.</p> <p>3. HUSBAND AND WIFE — Principal and Surety — Release by Extension of Payment. Where a husband and wife, for the purpose of securing a debt of the husband, join in the execution of a mortgage on the homestead the title to which is in the husband, the wife does not thereby become a surety of her husband so as to be entitled to all the rights and privileges ®f other sureties; and if her husband and the holder of the mortgage enter into a valid agreement for the extension of the time of payment of the debt, without the knowledge of the wife, such agreement w.ill not destroy the validity of the mortgage.</p> <p>4. SAME. Where the title of record to land was solely in the husband, but in fact fhe wife was the equitable owner of an undivided interest therein, and both executed a mortgage thereon to secure the debt of the husband, she is not entitled to assert, as against the mortgagee, the rights of a surety to the extent of her interest in the land, unless the mortgagee had notice of such interest when he extended the time of payment of the. debt. The mere fact that she joined in the covenant of seisin in the mortgage does not charge the mortgagee with such notice</p> <p>(Syllabus by Brewer, C)</p>

Brror from District Court, Tillman County; Action by John H. Mounts against the St. Louis & San Erancisco Railroad Company, for the value of a stallion alleged to have been negligently killed in transit in an interstate shipment. Judgment for plaintiff for $1,200, and defendant brings error.

<p> Error from Superior Court, Muskogee County; </p> <p>' Action by Alice Smith and Mamie Mitchell against H. H. Bell and another. Judgment for defendants, and plaintiffs bring error.</p>

Mrror from District Court, Okmulgee County; Action by Jennie Yarbrough against William D. Cornelius, the Union Investment Company, and others. Judgment for plaintiff, and the defendants bring error.

<p>1. INDIANS — Alienation of Lands — Age—Enrollment Records— Effect as Evidencié. Act Cong. May 27, 1908, c. 199, 35 Stat. 313, in part provides: * * The enrollment' records of the Commissioner to the Five Civilized Tribes shall hereafter be conclusive evidence as to the age of said citizen or freedman.” Held: That such act is not, nor was it, intended to be a rule of evidence; but the purpose of said act is to prescribe terms and conditions upon which members of the Five Civilized Tribes of Indians may alienate, their lands, and to prescribe a fixed and uniform rule by which those contracting with such members of said tribes could determine the exact date minors may reach their majoritjr for the purpose of alienating their lands.</p> <p>2. SAME — Operation of Statute — Retroactive Effect. That part of said act of Congress mentioned in the foregoing paragraph has no. application to a transaction relating to a sale of allotted land concluded prior to the date said act took effect.</p> <p>3. INDIANS — Removal of Restrictions — Operation of Statute. Act of Cong. April 21, 1904, c. 1402, 33 Stat. 189, removing “* * * all the restrictions upon the alienation of lands of all al-lottees of either of the Five Civilized Tribes of. Indians who are not of Indian blood, except minors, * * *” authorized a „ freedman citizen of the Creek Nation to alienate by deed her surplus allotment upon attaining her majority, though a minor at the time of the passage of the act.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. MORTGAGES — Foreclosure — Petition — Allegation of Title. 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 — Mortgage of Oil and Gas Lease — Approval of Secretary — Necessity. Under Act Cong. March 3, 1905, c. 1479, 33 Stat. 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. MORTGAGES — Foreclosure—Oil and Gas Lease — Sufficiency of Petition. Petition examined, and held to state a cause of action.</p> <p>(Syllabus by Thacker, C.)</p>

<p> Error from District Court, Grant County; </p> <p>Action by Gust Johnson against S. S. Snyder. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Coal County;</p> <p>Petition by C. M. Threadgill for the probate of the will of Emerson Allen, deceased, to which Rhoda Allen, the wife of the testator, filed objections. From a judgment denying pro- . bate, proponent, Threadgill, brings error.</p>

<p> Error from District Court, Grant County; </p> <p>Action by Liberty Township, a municipal corporation of Grant County, against Rock Island Township, a municipal corporation .of Grant county, for an interest claimed in a park formerly within the boundaries of and owned by both townships then comprising one township. Judgment for defendant, and plaintiff brings error'.</p>

<p>Error from County Court, Kingfisher County;</p> <p>Action in replevin by Thomas Taylor against Clyde Smith, Sheriff. Judgment for defendant, and plaintiff brings error.</p>

<p> Brror from District Court, Bryan County; </p> <p>Action by Will McKemie against Eránk Albright. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Hughes County; Mandamus by School District No. 38, Hughes county, state of Oklahoma, on the relation of F.- M. Hale, director of the school board for said district, against B. W. Mackey, county treasurer. Judgment for defendant, and' plaintiff brings error.

Error from District Court, Oklahoma County; Action by Julia A. Tyler against Lucian H. Tyler. Demurrer to defendant’s evidence sustained, and defendant brings error, and plaintiff applies for an order directing the clerk to issue execution on judgment.

Error from District Court, Pittsburg County; Action by T. O. Davis against the Rock Island Coal Mining Company, for personal injuries. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Harmon County; </p> <p>Action by the F. B. Collins Investment Company against Ada Easley and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Muskogee County; </p> <p>Action by the Berger Manufacturing Company, a corporation, against School District No.. 10 of Muskogee County and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Brror from County Court, Creek County; </p> <p>Action by Max Robinovitz against J. G. Hamill on a promissory note and an open account. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, 'Carter County; </p> <p>Action by M. L. Alexander against M. L. Hodges. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Kay County; Action by C. A. Johnson against Guy F. Stoval, defendant, and Newkirk Oil Company and E. E. Faris, garnishees, and E. E: Faris, interpleader. Judgment sustaining an appeal from the justice court by interpleader, and C. A. Johnson brings error.

<p>1. REPLEVIN — Right of Action — Officers—Possession. Replevin by the rightful owner, entitled to possession of chattel property, will lie against an officer who has levied thereon, without regard to such officer being at the time in the actual possession, if the latter’s possession be such that, when interfered with, he would have the lawful authority to repossess himself thereof.</p> <p>2. SAME — Pleading—General Denial — Proof. An answer containing a general denial, in a replevin proceeding, puts in issue the title and right of possession of the plaintiff, and under such answer the defendant may prove title or right of possession either in himself or a stranger, or make such defense as will defeat the plaintiff’s claim or right to possession as against the defendant.</p> <p>3. SAME — Ownership—Chattel Mortgage. Where the plaintiff in his petition alleges ownership generally, defendant need not set up in his answer that a bill of sale under which plaintiff 1 claims title, is in fact and was intended only as a mortgage, in order to introduce evidence to that effect.</p> <p>4. SAME — Wrongful Detention — Measure of Damages — Usable Value. One of the exceptions to the general rule as to the measure of damages for the wrongful taking and detention of personal property is where the property s.o taken has a distinct usable value; and horses broken and trained to do work would have, under ordinary circumstances, such usable value; and where such property has been wrongfully taken by one, and detained from another, such other has the right to recover as damages .the reasonable value of the use of such property during the period of its wrongful detention; and this value is ordinarily to be determined by the ordinary market price of the use of such property at the time of taking and during the period of the detention.</p> <p>5. SAME — Damages Recoverable — Usable Value — Proof. A plaintiff in replevin who has but a special interest in the property replevined is not entitled to a verdict for the usable value thereof, in the absence of proof that the special interest carried with it the right to the use.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. CARRIERS — Shipments—Right to Refund — Conditions Precedent. At different dates between May 27, 1907, and February 27, 1908, plaintiff shipped rough lumber to a milling.point on defendant’s line of railroad. At the time a milling in transit privilege was given by defendant’s tariff schedule, under' which the finished product was required to be shipped out in certain quantities to destinations on said defendant’s line of railroad, and under certain named tariffs carrying specified freight rates then in force. Before plaintiff shipped out any of the lumber, such schedule of rates on intrastate shipments • had been canceled, and lower rates established to conform to an order of the State Corporation Commission, and thereafter plaintiff shipped under such lower rates. Held that, not having complied with the conditions under which the right to a refund -on inbound shipments was given, plaintiff was not entitled to the benefit of it.</p> <p>2. SAME — Refund—Condition. Plaintiff’s right to a refund of the difference between the local distance tariffs paid on inbound shipments and" the milling in transit or lower rate was dependent upon the shipper causing the lumber to be moved under the existing tariffs. When this was not done, but instead, the lumber was shipped out under reduced rates, put in force by lawful authority, an action to recover such refund cannot be maintained.</p> <p>(■Syllabus by Sharp, C.)</p>

Error from District Court, Tulsa County; Action by James W. Orr against Samuel K. Todd and another. Judgment for defendants, which was vacated on motion of plaintiff. From an order overruling defendants’ motion to vacate all proceedings had therein since the rendition of the original judgment, defendants bring error.

Error from County Court, Marshall County; Two landlord attachment actions brought by Will McKem-ie in justice court; one against Joe Walker, the other against D. A. Woods. From judgment for defendants, plaintiff appealed to the county court, wherein S. G. Wood was made a party defendant and the actions consolidated. Judgment for plaintiff in the county court, and defendants bring error.

Error, from District Court, Kiowa County; Action by the C. T. Herring Lumber Company, a corporation, against the Blanchard Construction Company and others, for foreclosure of materialman’s lien.- Judgment for plaintiff, and defendant E. F. Dunlap brings error.

Error from Superior Court, Pottawatomie County; Action by the Warren-Smith Hardware Company against Sam Harris for balance due on a contract to put in a plumbing system in defendant’s hotel at Ada, Okla. Judgment for plaintiff, and defendant brings error.

Error from District Cotirt, Hughes County; Action by Mary Ann Wesley against W. D. Diamond and another for the cancellation of certain deeds. Judgment for defendants, and plaintiff brings error.

<p>SCHOOLS AND SCHOOL DISTRICTS — Teacher’s Contract — Validity. Where a board of school directors and a teacher enter into a contract whereby the teacher agrees to teach a school for a term of months at a stipulated price, and such agreement is reduced to writing and signed by the teacher and by all the members of the school board, it is not necessary, in order to render such contract valid and binding between the parties, that all the members of the school board should sign same at the same time and place.</p> <p>(Syllabus by Plarrison, C.)</p>

<p>APPEAL AND ERROR — Brief—Failure to File — Dismissal. 'Where plaintiff in error fails and iieg'lects to file brief as requiredÉ by rule 7 (38 Okla. vi, 137 Pac. ix) of this court, the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. EQUITY — Clean Hands — Petition—Oil and Gas Lease. Where the alleged cause of action set out in a petition in a suit in equity show's that the right or claim relied upon for relief is based upon a breach of a contractual obligation existing between the parties thereto, the plaintiff in such suit does not come into court with clean hands, and a general demurrer to the petition for want of equity is well taken and should be sustained.</p> <p>2. MINES AND MINERALS — Oil and Gas Lease — “Condition Subsequent” — “Condition Precedent.” A condition subsequent operates upon estates already created and vested, and renders them liable to be defeated; while a condition precedent is one that must be performed before the estate can vest or be enlarged. A void condition subsequent in a lease contract cannot operate to defeat an estate already vested thereunder, but a void condition precedent prevents any estate from vesting and renders the lease void, unless the condition is performed.</p> <p>3. INDIANS — Oil and Gas Lease — Condition Precedent — What Constitutes. In the year 1907, upon the petition of the guardian of a minor full-blood allottee, the United States Court for the the Northern District of the Indian Territory, sitting in equity, made an order directing the minor to join in executing an oil and gas mining lease upon the ward’s allotment upon condition that the lease should be approved by the Secretary of the Interior. ' Held, that this condition requiring the approval of the Secretary of the Interior was a condition precedent in the lease contract, and no estate vested thereunder until this condition was performed, although the condition may have been void.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where the plaintiff in error fails to file brief, as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Choctaw County; Action by W. W. Jeter and others against George A. Lov-ett to cancel deeds. Jüdgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Kingfisher County; </p> <p>Action by Franz F. Marth against the Kingfisher Commercial Chib and others. Judgment for defendants; and plaintiff brings error.</p>

<p> Error from District Court, Pawnee County; </p> <p>Action by James A. Welker against Walter Annett and others, the Board of County Commissioners of Pawnee County. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Grant County; </p> <p>Action by the Board of County Commissioners of Grant County against E. P. Privett, Register of Deeds, and his bondsmen, for fees collected ■ and unpaid to county. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Noble County; Action by Ií. L. Boyes and another against Geo. A. Masters and others. Judgment for plaintiffs, and defendants bring error..

<p> Error from County Court, Caddo County; </p> <p>Action by H. F. Caulk against E. W. Carlson.' Judgment for defendant, and plaintiff brings, error.</p>

Error from District Court, McIntosh County; Ejectment by Elida Duncan against T. T. Byars, Sr., and others. Judgment for defendant Gabriel Ellinger decreeing title to the land in question in him and. judgment for defendant Rayford Jones against Ellinger for $1,950, and Elida Duncan and Gabriel Ellinger each bring error.

<p> Error from District Court, Greer County; </p> <p>Action by J. J. Adams against T. A. Lawrence and H. M. Ferguson. Judgment for defendant H. M. Ferguson, and plaintiff brings-error.</p>

<p> Error from District Court, Pawnee County; </p> <p>Action in replevin by the Henderson-Sturgis Piano Company against Fred S. Liscum. Judgment for plaintiff, and defendant brings error.</p>

<p>1. JUSTICES OF THE PEACE — Appeal—“Perfected Appeal”— Bond. An appeal from the judgment of a justice of the peace is perfected upon the filing and approval of the appeal bond or undertaking within ten days from the rendition of the judgment, and when such bond, accompanied by a certified transcript of the justice’s docket, together with-the papers in the case, are duly transmitted to the appellate court, such court is vested with jurisdiction of the action.</p> <p>2. SAME — Cure of Irregularity. Where an appeal bond gives the proper style of the case, the court from which the appeal is taken, and the court to which it is to be appealed, and is sufficient in amount, made payable to the necessary obligees, and otherwise in substantial compliance with the statutes, but omits the condition “that the appellant will prosecute his appeal to effect and without unnecessary delay,” such omission is an irregularity which may be cured by amendment or, by the substitution of a new bond in the appellate court.</p> <p>(Syllabus by Harrison, C.)</p>

Error from Superior Court, Muskogee County; Action by Thomas J. Way and others against E. C. Both-well and others, to cancel deeds and remove .cloud from title. Judgment for plaintiffs, and defendants bring error.

<p>1. PLEADING — Petition—Objection. Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matter essential to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.</p> <p>2. MUNICIPAL CORPORATIONS — Streets — Damages — Petition — Sufficiency. The petition in this case, measured by the above rule, is sufficient:</p> <p>3. SAME — Care Required. The obligation which the law imposes upon a driver of a horse-drawn vehicle is to exericse reasonable care, to the end of keeping his horses and vehicle under such control as tó be able to prevent a collision with other vehicles or pedestrians on the highway.</p> <p>4. SAME — While the law does not make a .driver upon a public street or highway an insurer against accidents which may happen because of his being there,-yet it demands of him the exercise of reasonable or ordinary care; and, as in eyery other, situation, this degree of care is one commensurate with the danger to others which attends the particular situation.</p> <p>5. TRIAL —: Direction of Verdict — Evidence. It is only when the evidence, with all the inferences the jury could justifiably draw from it, will be insufficient to support a verdict for plaintiff that the court is authorized to direct a verdict for defendants; and, unless the conclusion follows as a matter of law that no recovery can be had upon any view that can be properly taken of the facts which the evidence tends to establish, the case should be left to the jury, under proper instructions.</p> <p>Í. MUNICIPAL CORPORATIONS — Streets — Damages — Suf- ■ ficiency of Evidence. The evidence is discussed in the opinion and held sufficient.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. APPEAL AND ERROR — Discretionary Ruling — Order Granting New Trial. This court will not reverse the action of a trial court in granting a new trial, unless it can be seen, beyond all reasonable doubt, that such court has manifestly and’ materially erred with respect to some pure, simple, and un- ' mixed question of law, and that, except for such error, the ruling of the trial court, would not have been so made.</p> <p>2. SAME — Judgment—Presumption—Discretionary Ruling. The presumption obtains 'in this court that judgments and orders of trial courts are correct; and where discretion is exercised, except where the abuse thereof is affirmatively shown, the same will not be disturbed on appeal. ;</p> <p>(Syllabus by Sharp, C.)</p>

<p>1. INSURANCE — Accident Policy — Excepted'Cause — Pleading and Proof. Where, in an action .on a policy of accident insurance, it 'is claimed that death was due to one of the causes excepted from the operation of the policy, .it is for the insurer to plead and prove such fact.</p> <p>2. SAME — Intentional Injury. A policy of insurance, which provides that indemnity shall not be payable for injuries fatal or ■ otherwise, intentionally inflicted upon the insured by himself or some other person, does not exclude a recovery where the insured dies from a fracture of the skull caused by a fall on a hard pavement, the result of a blow in the face struck by the fist of another, where the blow but not the fatal result was intentionally inflicted.</p> <p>3. SAME — “Intentionally Inflicted.” The death of the insured not having been intended by his assailant, and being an unforeseen and unusual result of the blow struck, the insurer is not relieved of liability on account of the fact that the blow itself was intentionally inflicted. The words “intentionally inflicted,” as used-in the policy, should be construed to refer to the fatal’injuries resulting from the fall, and not to the blow-</p> <p>4. INSURANCE — Policy—Construction. If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will be adopted that is most favorable to the insured.</p> <p>5. SAME — “External, Violent, and Accidental Means” — “Accidental.” An injury intentionally inflicted by another upon the insured, and without the foreknowledge or connivance of the insured, is an injury inflicted through “external, violent, and accidental means.” An injury is “accidental,” within the the meaning of an insurance policy, although it is inflicted intentionally and maliciously by one not the agent of the insured, if unintentional on the part of the insured.</p> <p>(Syllabus by .Sharp, C.)</p>

Error from District Court, Jackson County; Action by the Williamson-Halsell-Frazier Company, a corporation, against John D. Bailey, sheriff of Jackson county, Okla. Judgment for plaintiff, and defendant brings error.

Error from District Court, Stephens County; Action by Oslin Fulsom, by his next friend and guardian, G. W. Scantlin, against S. Lee. Judgment for plaintiff, and defendant brings error.

<p> Error from County Court, Carter County; </p> <p>Action by Eli R. Ratcliff against C. A. Sharrock. Judgment for defendant’ and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal* Where plaintiff in error fails and neglects to- file brief as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the appeal will be dismissed for want of prosecution.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from County Court, Carter-County ; </p> <p>Action by M. L. Alexander against M. L. Hodges. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pushmataha County; • Action by the St. Louis & San Francisco Railroad Company against J. W. Amend, as County Treasurer of Pushmataha County, Wm. Ellis, as Sheriff of said county, and F. C. Amend and C. E. Stephenson, as their successors in office, for injunction against collection of excessive taxes. Judgment for defendants, and plaintiff brings error.

Error from District Court, Kay County; Action for damages for personal injuries by W. N. Pitts against the Atchison, Topeka & Santa Ee Railway Company. Judgment for plaintiff, and defendant brings error.

Error from County Court, Stephens County ; Action by the W. B. .Young Supply Company, a foreign corporation, against J. P. Bledsoe & Son, on account for goods sold. Judgment for plaintiff, and defendant brings error.

<p> Error frorh Superior Court, Muskogee County; </p> <p>Action by W. J. Young against the Missouri, Oklahoma & Gulf Railroad Company. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Logan County; Action by Sarah M. McCammon against Della W. and William M. Jenkins on promissory notes and for foreclosure of mortgage. Judgment for plaintiff on notes and for defendants denying foreclosure, from which plaintiff brings error. Plaintiff in error brought this action in August, 1911, against the defendant Della W. Jenkins, as maker, and the defendant Wm.

<p> Error from District Court, Carter County; </p> <p>Action by Madalena Farve and others against John B. Criner. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error frim District Court, Choctaw County; </p> <p>Action by Fred Gyr against the Dodd-Lear Hardwood Lumber Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>1. DIVORCE-r-Grounds — “Gross Neglect of Duty.” "Gross neglect of duty,” within the meaning of section 4S4S, St. Okla. 1893 (section 4962, Rev. Paws 1910), is such a glaring, flagrant, shameful, or monstrous neglect of marital duty as to be obvious to the common understanding and inexcusable under all the relevant facts in the case.</p> <p>2. SAME — Nonsupport. Where a wife, who owns considerable property, does not appear to be dependent upon, or in need of the support of, her husband, who owns no property, and is unable, by reason of bad health, to earn a sufficiency for his own support, and she is in abandonment of him without appearance of just cause, the mere proof that he has not contributed to the support of her nor of their daughter, who is living with her, during such time of such abandonment, does not entitle her to a divorce upon the ground of "gross neglect of duty.”</p> <p>(Syllabus by Thacker, C.)</p>

<p>INDIANS — Allotments—Right to Alienate — Removal of Restriction*. The restriction against alienation of the land of a Cherokee freedman allottee was removed as to the surplus by Act April 21, 1904, c. 1402, 33 Stat. 189, and as to the homestead by Act May 27, 1908, c. 199, 35 Stat. 312. The fact that patent had not issued for such allotments was not a bar to alienation by the allottee subsequent to the taking effect of the above acts of Congress.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. JURY — Right to Jury Trial — Waiver—Motion for Directed Verdict. The fact that the plaintiff and defendant each moves the court -to direct a verdict in their favor does not constitute a waiver of trial by jury upon the part of either.</p> <p>TRIAL — Direction of Verdict — Conflicting Kvidence. Where 2. there is any controverted question of fact before the jury, it is error for the court to direct a verdict.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1. BILLS AND NOTES — Negotiability—Provision for Attorney’s Fees. A promissory note executed and delivered July 15, 1908, providing that, if the note be placed in the hands of an attorney, the makers thereof would pay an attorney’s fee and all other cost of collection, is a nonnegotiable instrument.</p> <p>2. SAME — Nonnegotiable Note — Indorsement in Blank — Liability. Where the payee indorses in blank a nonnegotiable note and delivers the same to the assignee, he does not thereby become liable to such assignee as an indorser or guarantor.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from Superior Court, Muskogee County; </p> <p>Action by A. B. McDonald against N. M. Schantz. Judgment for defendant, and plaintiff brings error.</p>

Error from the County Court, Creek County; Action by Miles B. Bixley, doing business as the Continental Jewelry Company, against J. L. Sharp. Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Pottawatomie County; Mandamus by the State, on the relation of C. P. Holt, County Attorney, and others, against G. T. Bryan and others, composing the State Board of Agriculture. Judgment for plaintiffs, and defendants bring error.

Error from County Court, Jackson County;- Action by the State, on relation of M. L. Hankins, as County Attorney of Jackson County, against G. W. Burkett and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Cotirt, Creek County; </p> <p>Mandamus by J. W. Cashell against George A. Johns, County’ Judge of Okmulgee County. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Garvin County; </p> <p>Action by Joe Loche against Theo Husted. Judgment for plaintiff, and defendant appeals.</p>

<p>APPEAL AND ERROR — Harmless Error — Judgment. Where the judgment of the trial court is supported by the evidence, and is clearly just, it should not be reversed upon an appeal for mere irregularities not affecting the substantial rights of the plaintiff in error.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Cottrt, Jackson County; Action by William Cameron & Co., a corporation, against the Altus Opera Company, a corporation, and Cage Beach. Judgment for defendant Beach, and plaintiff brings error.

<p>APPEAL AND ERROR — Discretionary Ruling Granting New Trial. The discretion of the trial court in sustaining a motion for a new trial, seasonably filed, is so wide and extensive that its action in so doing will not be disturbed on appeal, unless it clearly appears that the court erred upon some clear and unmixed question of law.</p> <p>(Syllabus by' Brewer, C.)</p>

Error from District Court, Cherokee County; Action by C. D. Markham and Fortner G. Markham, partners doing business as Tahlequah Lumber' Company, against A. H. Dykes, guardian of Tony R. Dykes, Dover A. Dykes, Roxy G. Dykes, and Bynk Dykes, and the First National Bank of Tah-lequah. From an order directing W. PI. Talley, as Clerk of the District Court, to pay over the sum of $1,553.54 to the defendants in error, Talley appeals.

Error from District Court, Cherokee County; Action by C. D. Markham and another, doing business as the. Tahlequah Lumber Company, against A. H. Dykes, guardian. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Stephens County; </p> <p>Action by G. C. Briscoe against D. T. Sledge and Hetty M. Sledge. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Verdict—Evidence. In a civil action the verdict of the jury reasonably supported by the evidence will not be reversed upon appeal, in the absence of a' showing that the court committed some prejudicial error of law during the course of the trial.</p> <p>2. NEW TRIAL — 'Hearing on Motion — Discretion — Evidence. Under the circumstances set out in the opinion, overruling the motion for new trial was not error.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Oklahoma County; </p> <p>Action by Sarah Picard against the Oklahoma City Development Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Canadian County; </p> <p>Action by the C. W. Raymond Company^ a corporation, against the El Reno Vitrified Brick & Tile Company, a corporation, and A. C. Kriepke. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Washington County; </p> <p>Action by the Union National Bank of Bartlesville, Okla., and another, against the Commerce Trust Company of Kansas City, Mo., and others. From.an order appointing a receiver to take charge of certain stock and properties of the Renfrow Oil & Gas Company, Ira M. Cobe and the Renfrow Oil & Gas Company appeal.</p>

<p>1. MASTER AND SERVANT — Discharge of Servant — Damages —Right of Action. Where a person has entered the employment of another under a definite contract to work for a-definite time for certain wages, and after working a part of the time is discharged wrongfúlly by the employer before the expiration of his term of service, such employee has a right to bring suit immediately, based on the- wrongful breach of the contract, and recover damages commensurate with the injury he has suffered because of the breach of contract.</p> <p>2. SAME — Measure of Damages — Burden of Proof. The measure of damages for the breach of a contract of employment by the employer is prima facie the sum stipulated to be paid for the services; and the burden of reducing the damages by proof that the servant has, or might with reasonable diligence have, obtained other remunerative employment after his discharge rests on the employer.</p> <p>3. APPEAL AND ERROR — Harmless Error — Argument of Counsel. A case will not be reversed because of remarks of counsel in the- argument, outside the record, unless the remarks are of such a nature as-to prejudicé the minds of the-jury, or to work, in some way, substantial harm to the other side of the case.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. INDIANS — Indian Lands — Allotment—Ascend. Upon the death of mixed blood minor children of the Choctaw Tribe of Indians, the fee in their allotments ascends to the parent of tribal blood, and not to the parent who has become a citizen of the tribe by virtue of an intermarriage.</p> <p>2. CHAMPERTY AND MAINTENANCE — .Deeds—Adverse Claimant. A deed to lands which have been held by an adverse claimant in open, notorious, and exclusive possession and control for a period of four or five years next prior to the deed, such adverse claimant having collected all the rents and profits, and having openly and notoriously claimed an estate in. such lands under the provisions of chapter 49, Mansfield’s Dig. of Ark. [sections 2522-2545], is champ.ertous as between the grantee and such adverse claimant.</p> <p>3. - PLEADING — Answer—General Demurrer. Where an answer contains statements of facts which of themselves constitute a defense to plaintiff’s adtion, it is error to sustain a general demurrer to such answer.</p> <p>(Syllabus by Harrison, C.)</p>

Error from Superior Court, Muskogee County; Action by Henry P. Showalter against George F. and C. S. Bucher. From a judgment sustaining a motion for new trial in No. 2928, .defendants bring error, and from a judgment for plaintiff in No. 4302, defendants bring error.

<p> Error from District Court, Alfalfa County; </p> <p>Action by' Frank. H. Whelan against P. O. Adams, Effie Adams, Emery L. Metcalf, and Mary F. Whelan. Judgment for defendants Emery L. Metcalf and Mary F. Whelan on their answers and cross-petitions, and plaintiff Frank H. Whelan and defendants P. O. Adarñs and Efhe Adams bring error.</p>

Action by B. C. Sims against Charles De Watteville and others on a note to foreclose a mortgage lien.' Judgment for plaintiff and defendants bring error.

<p>■ 1. ATTACHMENT — Motion to Dissolve — Objection — Waiver. Where there has been a trial, and no objection has been made to the sufficiency of a motion or affidavit to dissolve an attachment, either by demurrer or mption, an objection to the ■ introduction of evidence in support of the motion, on the ground that it does not put in issue or traverse the grounds laid in the affidavit for attachment, will be sustained only when the allegations of the traversing affidavit wholly fail to deny the grounds of attachment.</p> <p>2. SAME — Traversing Affidavit — Sufficiency. Where the traversing affidavit is in the conjunctive, and is laid in the present tense, its legal sufficiency should be tested either by motion or‘demurrer, and not alone by mere objection to the introduction of testimony.</p> <p>3. PLEADING — Defense—Estoppel—Waiver. While, as a general rule, estoppel or waiver must be pleaded, failure to do so may be waived by plaintiff by proceeding with the trial of the case without objection, as though the defense relied on had been pleaded.</p> <p>4. FRAUDULENT CONVEYANCES — Bulk Sales — Compliance With Statute — Right to Object — Waiver. Where the owner of a stock of merchandise, in good faith, and for a fair consideration placed in escrow during the consummation of a transfer of such stock, proceeds to comply with the provisions of the Bulk Sales Act (section 2903, Rev. Laws 1910), and furnishes a list of his creditors to the representative of the purchasers, which list complies substantially with the requirements of the statute, but where the notice given the creditors was signed by the transferror instead of the transferees, a resident creditor, who receives such notice with knowledge of all the facts connected with the proposed sale, and who assents thereto, waives any objection he might otherwise have to a strict compliance with the statute, and is estopped from thereafter, and within the ten-day period named in the statute, attaching the stock of goods, on the ground that the seller has not fully complied with the statute.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from County Court, Osage Cotmty; </p> <p>Action by the Bank of Commerce of Ralston against O. W. Gaskill. Judgment for defendant and plaintiff brings error.</p>

<p> Error from County Court, Tillman County; </p> <p>Action by Annie Cargill, nee Mathews, against the Liverpool & London & Globe Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Garfield County; Action by the Dolese Bros. Company, a corporation, against J. W. Chaney and C. E. Rickard, partners doing business as Chaney & Rickard, A. H. Reed and C. E. Dawkins, on contractor’s bonds for material furnished and used in construction of sidewalks.

<p> Error from County Court, Alfalfa County; </p> <p>Action by J. P. Evans against W. H. Parsons. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma County; </p> <p>Action by Mrs. T. J. Walker against C. J. Bowman and others. A default judgment for plaintiff was set aside, and plaintiff brings error.</p>

<p> Error from District Court, Major County; </p> <p>Action by C. E. Gault against P. S. Kane. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Logan County; </p> <p>Action by Frankie E. Erwin against the Union Central Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CARRIERS — Injury to Passenger — Instructions—Mixed Train. An instruction under section 1381, • Comp. Laws 1909 (section 1424, Rev. Laws 1910), is sufficient, which provides: “You are also instructed when fare is taken by any railroad corporation for transporting passengers on any mixed train, passenger or freight cars, or in baggage, wood, gravel, or freight cars, the same care must be taken and the same responsibilities are assumed by the corporation as for passengers on passenger cars”</p> <p>2. SAME — Evidence. Evidence tending to show. the occurrence of a sudden stop of a freight train of sufficient violence to - throw the conductor, brakeman, plaintiff, and another passenger in a pile on the fl-oor of the caboose, together with an admission, at the time of the injury on the part of the conductor,, that the engineer made the sudden stop on purpose, etc., is sufficient to justify an inference of some breach of the duty owed to the injured person by the carrier, and casts the onus upon it of relieving itself of responsibility. by showing, that the injury was the result of an accident which the exercise of due skill, foresight, and diligence could not have prevented. Following St. Louis & S. F. R. Co. v. Fitts, 40 Okla. 685, 140 Pac. 144.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from County Court, Noble County; </p> <p>Action by M. M. Vandenberg against W. Tolle. Judgment for plaintiff, and defendant brings error.</p>

<p>1. INSURANCE — Policy—Liability of Insurer. Where a provision of an accident insurance policy provided that in the event of the death of the insured by bodily injury effected exclusively by external, violent, or accidental means, resulting in death within a given time, and the insured was killed by gunshot wounds inflicted by another, the insurer is liable to the beneficiary to the extent named in the particular provision of the policy, without regard to whether such fatal injury be deemed accidental or not; the character of the bodily injuries covered by the policy being in the disjunctive.</p> <p>2. SAME — Accident Policy — Construction—Liability of Insurer. Where a different and disconnected provision of the policy creates a liability only where death was caused within a fixed time by bodily injury effected exclusively by external, violent and accidental means, while riding in or on any vehicle, or public or private conveyance, and where a lesser sum was payable, the provision of the policy named in the former paragraph remains unaffected by the conjunctive features of the latter, creating liability only when the injury was by external, violent and accidental means.</p> <p>3. SAME — Policy—Construction—“Or”—“And.” As used in the policy of insurance, the words “or” and “and” cannot be treated as interchangeable^ so as to create a liability only where death was the result of external and violent means, but accidental as well. The character of the injuries named in the policy being in the disjunctive, it is sufficient that death result from external and violent means alone</p> <p>4. SAME — Accident Policy — Construction. As used in the policy of insurance, there is nothing in the context rendering dubious the use of the conjunction “or.” Hence the conjunctive particle “and” cannot be substituted in its stead.</p> <p>5. SAME. If a policy is so drawn as to require interpretation, and to be fairly susceptible of two different constructions, the one will'be adopted that is most favorable to the insured.</p> <p>(Syllabus by Sharp, C.)</p>

<p> Error from District Court, Pottawatomie County; </p> <p>Action by Anna B. Mobley as administratrix, against the Chicago, Rock Island & Pacific Railway Company. Demurrer to plaintiff’s evidence sustained, and she brings error.</p>

<p>1. TRIAL — Instructions—Repetition. A judgment will not be reversed because of the refusal of the trial court to give an instruction although such instruction may fairly state the law, if the law. applicable to the issues in the case is fairly stated in the court’s charge.</p> <p>2. INNKEEPERS^ — Guests—Personal Injuries — Care Required. A hotel or innkeeper, from the very nature -of his business, extends an implied invitation- to all persons to become guests at his hotel, and thereby becomes liable for injuries sustained by reason of the unsafe conditions, of the hotel, and the law imposes upon him a degree of care and diligence for the safety of his guests reasonably commensurate with the circumstances and conditions</p> <p>3. SAME — Instructions. It being stipulated that one of the defendants was the manager of the hotel, the court instructed the jury that such manager was responsible under the law for the condition of the hotel at the time of the accident, regardless of who may have owned, the hotel or of who may have constructed it. Held, this was not error.</p> <p>4. TRIAL — Instructions—Duty to Request. A judgment will not be reversed for failure of the trial court to instruct upon any particular phase or issue, unless request is made at the trial for such instruction.</p> <p>5. APPEAL AND ERROR — Harmless Error — Instructions — Pleadings. Where the court in other paragraphs of the charge has defined to the jury what the issues are between the liti- ■ gants, a judgment will not be reversed merely upon the grounds that the court set out the pleadings in full in his instructions to the jury, unless it is made to appear that the the rights of the parties were prejudiced thereby.</p> <p>6. TRIAL-Province of Court and Jury — Evidence. Where the court has separately and properly defined each of the elements of damage for which plaintiff might recover, provided the jury finds from the evidence that the plaintiff has sustained any such damage, and concludes with the words, “Provided such damages do not exceed in the aggregate the sum sued for,” such language is not equivalent to saying such sum was reasonable damages' in the premises, and the use of such language does not constitute reversible error.</p> <p>7. INNKEEPERS — Injury to Guest — Negligence—Sufficiency of Evidence. The evidence examined, and found to be sufficient to sustain the verdict and judgment.</p> <p>(Syllabus by Harrison, C.)</p>

<p> Error from District Court, Choctaw County; </p> <p>Action by H. H. Hale against E. W. Record. From a judgment for the defendant, plaintiff brings error.</p>

<p>APPEAL AND ERROR — Settlement of Case-Made — Notice—Di*. missal. A proceeding in error, brought to this court on a case-made, where it does not appear from the record or otherwise that the defendant was present, either personally or by counsel, at the settlement, or that notice of the time thereof was served or waived, or what amendments suggestect, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.</p> <p>(Syllabus by Sharp, C.)</p>

Error from District Court, Craig County; Action by Marian Ballard as administratrix of Randolph Ballard, deceased, against George W. May and the United States Fidelity & Guaranty Company. Judgment for plaintiff, and the defendant company brings error.

<p> Brror from County Court, Woods County; </p> <p>Action by Walter Bartholomew against W. D. Wilkinson. Judgment for plaintiff, and defendant brings error.</p>