Volume 45 — Oklahoma Reports

<p>1. INDIANS — Conveyance of Allotted Land — “Alienation”—“Restrictions on Alienation.” The words “restrictions upon theo alienation,” as used in the Act of Congress of May 27, 1908, c. 199, 35 Stat. 312, means those restraints or limitations imposed by law upon the power of allottees of the Five 'Civilized Tribes and their heirs to voluntarily convey allotted lands free from supervision or control of any federal agency.</p> <p>2. SAM.E — Allotted Land — Rights of Heirs. The language of the proviso to section 9 of said act (Act May 27, 1908, c. 199, 35 Stat. 315), “that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee,” excepts lands inherited by full-blood heirs from the genetral terms of the statute making the death of an allottee operate to remove all restrictions upon the alienation of said allottee’s land.</p> <p>3. INDIAN LAND. The power to tax inherited Indian land is coincident with and dependent upon the removal of restrictions upon alienation; and, prior to the approval of conveyances of full-blood Indian heirs under the provisions of said act by the proper court, the power to tax said lands does not exist.</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action by Mollosey McGeisey against the Board of County Commissioners of Seminole County and others.</p> <p>Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Bounty Court, Creek Bounty; Warren E. Brown, Judge. </p> <p>Action between Hairy Wood and L. W. McEwen. From the judgment, Wood brings error.</p>

<p>1. QUIETING TITLE — Dismissal. In a suit in equity to cancel a certain conveyance and to quiet title to land, the uncontroverted evidence shows that plaintiff had conveyed all his right, title, and interest in the land to a third party prior to the institution of this suit. Held, the trial court should have dismissed plaintiff’s petition.</p> <p>2. APPEAL AND ERROR — Reversal—Rendition of Judgment. In an equity proceeding, where it is clearly shown that the court failed to consider uncontroverted competent evidence, or that the finding and decree are clearly against the weight of the evidence, held, said decree is erroneous, and this court will. consider the entire record in said cause, weigh the evidence, and render such judgment as the trial court should have rendered.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Seminole Counfyj Tom D. McKeown, Judge. Action by the Geary Milling and Elevator Company, a corporation; against Samuel W. Lane, trading, under the name of the Lane Grocery Company. Judgment for plaintiff for less than the sum found by the referee; and plaintiff brings error.

, Appeal from State Board of Equalization; J. F. King, Referee. Appeal by the Bartlesville Water Company from the assessment of its assets and property by the State Board of Equalization for the year 1912.

<p> Error from District Court, Wagoner County; B. C. Allen, Judge. </p> <p>Action by C. C. McKinney against the City of Wagoner, a municipal corporation. Judgment for defendant, and plaintiff brings error.</p>

A complaint was filed with the Corporation Commission by the State and the Cherokee Rural Telephone Company and others against the Pioneer Telephone & Telegraph Company. From orders of the Commission, defendant appeals.

<p>TAXATION — Assessment by State Board of Equalization — Sufficiency of Evidence. Plaintiff in error returned to the State Board of Equalization for taxation property valued at $126,763.16. Upon a hearing before that board, the value was raised to $202,820. From the action of the state board, an appeal is prosecuted to this court. A referee was appointed to take testimony and make findings of fact and report to this court. He finds that the value of appellant’s property, as found by the board, was correct, and recommends that the assessment be sustained. The evidence shows that, upon the value fixed by the board, the property has earned an average net income for the last three years of more than ten per cent. Held, that the finding of the referee is amply sustained by the evidence, and that it does not appear from the entire' record that any injustice has been done, and that the report should be confirmed.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND iERROR — Harmless Erroi — Admission of Evidence —Amendments to Pleading. Error arising from the action of the court in overruling an objection to the introduction of evidence becomes harmless, where the pleading thereby assailed is, during the trial, amended so as to cover the defects urged.</p> <p>2. ELECTIONS — Contests—Right of Action — Repeal of Statute. Chapter 14, Session Laws 1901, was not repealed by chapter 31, Session Laws 1907-08, and was in force on the date of the institution and trial of this suit, and was sufficient authority for the institution and prosecution of same.</p> <p>3. SAME — Petition—Right to Amend. Where the original petition alleges an intent upon the part of defendant to usurp the duties and functions of a particular office, it is not error for the court, to permit an amendment to allege that such usurpation had, in fact, occurred.</p> <p>4. APPEAL AND ERROR — Discretionary Ruling — Amendment to Pleading. Permission to amend a pleading at any stage of the trial rests in the sound discretion of the trial court, and same will not be disturbed, unless a clear abuse of discretion is shown.</p> <p>5. PLEADINGS — Amendment to Petition. An amendment to a petition by inserting a material allegation as to the eligibility of plaintiff to hold the office sought in the proceedings did not substantially change the claim of plaintiff in such suit, and, in furtherance of justice, was properly allowed.</p> <p>6. CONTINUANCE — Grounds — Surprise — Amendment to Petition. In the absence of a showing of surprise, occasioned by an amendment to the pleadings, it is not error to deny a continuance. In such cases a continuance should not be granted as a matter of right, but only when substantial justice will be denied by a refusal to grant such continuance.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action between the Springfield Fire & Marine Insurance Company and W. L. Belt, doing business as the W. L. Belt Trading Company. From the judgment, the Insurance Company brings error.

Error from District Court, Ohmulgee County; Wade S. Stanfield, Judge. Action by Cornelia Sweet and others against Elmer E. Schock, Treasurer of Okmulgee County, and the hoard of County Commissioners of Okmulgee County. Judgment for plaintiffs, and defendants bring error.

<p>Error from, County Court, Pawnee County; Fred 8. Liscum, Judge.</p> <p>Action by the Fidelity Trust Company, a corporation, against C. I. Pumroy, as sheriff of Pawnee County. Judgment for defendant, and plaintiff brings error.</p>

<p>TAXATION — Tax Lien — Priorities—Chattel Mortgages. A lien for taxes upon the property of the tax debtor is inferior to that of a chattel mortgage lien antedating the time the tax lien attaches.</p> <p>(Syllabus by the Court.)</p>

<p>1. CONTRACTS — Construction. Where a contract is executed which refers to and makes the conditions of another instrument a part of it, the two will be construed together as the agreement of the parties.</p> <p>2. INSURANCE — Action on Polioy — Petition—’Sufficiency. Where the petition discloses that ad interim insurance was issued for ten days from the date of the “binder” and “pending the issue of a regular policy at the rate and subject to limits of liability stated therein, and subject also to the agreements and conditions of the policy form E. L. 20, * * * as issued by this company, * * *” and the plaintiff declared upon the “binder”' alone, without setting forth the policy subsequently issued pursuant to the terms of the “binder,” and declaring thereupon as a part of the contract of insurance, held, a demurrer to the petition should have been sustained.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, ■OTclahomd County; E. D. Oldfield, Judge. Action by Herman Duhme, Jr., against the City of Oklahoma City, a municipal corporation, and another. Judgment for plaintiff, and defendants bring error.

<p>Í. INDIANS — Allotments—Removal of Restrictions — Operation of Statute. As to a certain portion of the lands of the Creek Nation, namely, those held by a certain class of citizens, to-wit, allottees not of Indian blood, and (in the event of their death) their heirs, Congress by the Act of April 21, 1904 (chapter 1402, : 33 Stat. 204), removed all restrictions upon alienation, thereby granting to such allottees or to such heirs power to convey all' lands allotted to or inherited by them, except the portion designated as a homestead while the allottee lived, and the lands of minors during their minority.</p> <p>2. SAMÉ — (Alienation of Allotment — Removal of Restrictions — “Allottees.” The word “allottees,” as used in Act April 21, 1904, c. 1402, 33 Stat. 204, removing the restraint on alienations by persons not of Indian blood, except minors, refers to the persons to whom allotments are made, and not to their heirs.</p> <p>(Syllabus by the .Court.)</p>

<p>Error from District Court, Garvin County; R. McMillan, Judge.</p> <p>. . Action by Stephen W. Allen and others against J. F. Trimmer, Treasurer of Garvin County. Judgment for defendant and plaintiffs bring'error.</p>

<p>Appeal by Wells Fargo & Co. Express and others from an order of the Corporation Commission.</p>

Error from Superior Court, Muslcogee County; Alvin F. Molony, Judge. Suit by William S. Irvin and others against the City of Muskogee and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Muskogee) County; R. P. de Graffenried, Judge. </p> <p>Action between the Board of County Commissioners of Muskogee County and others and D. N. Fink and others. From the judgment, the parties first mentioned bring error, and the adverse parties move to dismiss.</p>

<p>1. ATTORNEY AND CUIENT — Action for Compensation — Employment of Attorney — Submission of Issues — Sufficiency of Evi- • denoe. Plaintiffs sued defendant in four counts for legal services rendered in certain suits filed and prosecuted on behalf of defendant, said litigation covering a period from 1907 to 1912, inclusive. Plaintiff B, testified that defendant instructed him to institute and prosecute said suits; the purpose of which suits was to secure an accounting and to ascertain the exact condition of her business affairs under the control of Fred Turner. After the first suit was instituted, plaintiff B. employed plaintiff M. to assist in the prosecution of said suits. B. testified that defendant subsequently .sanctioned his action. Defendant gave her son Clarence a power of attorney to transact her business, and he told her he had employed M. to assist in the prosecution of the suits. The last suit resulted in a compromise and settlement, wherein $22,000' was paid to defendant. The issues as to whether or not the suits were filed and prosecuted and said services were authorized by defendant were submitted to the jury and a verdict returned in favor of plaintiffs in the sum of $6,750. Held the court committed no error in submitting said issues to the jury. Held, further, that the evidence reasonably tends to sustain the verdict of the jury, and the same will not be disturbed.</p> <p>2. SAME — Exclusion of Evidence. Assignments of error from two to nine, inclusive, relate to action of the court in sustaining objections to certain questions propounded to plaintiff B., wherein he was asked if certain specific questions were not propounded to defendant in the trial of the suits out of which this controversy arose, by which questions it was sought to prove the defendant’s attitude toward said suits. Held that the court committed no error, for the reason that the answers to said questions would not prove, or tend to prove, any issue in the present case, and are so remotely connected with the pres ent litigation as to render such questions and answers immate rial and incompetent.</p> <p>3. SAM E — Exclusion of Documentary Evidence. Assignments of error from 10 to 14, inclusive,' relate to the action of the court in sustaining objections to certain questions propounded to plaintiff B„ wherein it was sought to prove by said plaintiff that certain interests and property owned by his wife, who was a granddaughter oí defendant, conveyed certain interests in the property which was in litigation in the former suits referred to, and further relate to the action of the court in sustaining objections to the introduction of petitions in causes No. 2619, Clarence W. Turner v. Fred E. Turner et al., and No. 2592, Metropolitan Trust Co. v. Fred E. Turner et al. The purpose for which it was sought to introduce said petitions was to show bad faith on the part of counsel B. while representing defendant in the former suits. It appears that each of said actions last mentioned were filed long after the former litigation had been completed, and the services of plaintiffs terminated. Held that the court committed no error in sustaining the objections and refusing permission to introduce said petitions in evidence.</p> <p>4. TRIAL — Refusal of Instructions Covered — Attorney and Client. Defendant requested certain special instructions to be given to the jury, which were by the court refused. Held that, after examination of the general instructions of the court submitted to the jury, we are of opinion that the court fairly submitted the law applicable to the issues, and substantially included the propositions sought to be covered by the special requested instructions, and that no error was committed in this respect.</p> <p>5. APPEAL AND ERROR — Findings—Conflicting Evidence. Prom an examination of the entire record, it appears that the issues involved were controverted, and that they were fairly submitted to the jury under proper instructions from the court, and that there is sufficient evidence tending to support the finding of the jury, and the same will not be disturbed by this court.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Osage -County; R. H. Hudson, Judge. Action by Frank J. Murphy and others against W. W. Syfert and others. Judgment for plaintiffs, and defendants bring error.

Error from County Court, Stephens County; J. W. Marshall, Judge. Action by W. J. Thompson and another against J. W. Brown. From an order denying motion to vacate judgment and reinstate action, plaintiffs bring error.

Error from District Court, Garvin County; B. McMillan, Judge. Action between Joe F. Myers and others and Miles H. Hunt and others. From the judgment, the parties first named bring error.

<p> Error from District Court, Marshall County; Jesse M. Hatchett, Judge. </p> <p>Action between William Byrd and others and H. H. Harrison and o'thers. From the judgment, the parties first mentioned bring error.</p>

<p> Error from, District Court, Carter County; Stillwell E. Bussell, Judge. </p> <p>Action by Harry A. Brown against the St. Louis & San Francisco Railroad 'Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Lmcoln Gounty; . Chas. B. Wilson, Jr., Judge. </p> <p>Action by F. K. Bobinson against. J. William Taylor and ■others. From a judgment, defendant S. T. Yoder brings error.</p>

<p> Error from District Gowk Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action by W. E. Miller against the Missouri, Oklahoma & Q-ulf Bailway Company. Judgment for plaintiff, and defendant ■brings error. .</p>

Ear or from District Gov/rt, Marshall üounty; Summers Hardy, Judge. Action by Edith MeBee, administratrix of the estate of John M. MeBee, against the Chicago-, Rock Island & Pacific Railway Company. Judgment for plaintiff, -and defendant brings error.

<p>1. SCHOOLS AND SCHOOL .DISTRICTS — School Election — Tax Levy — Application of Statute — Municipal Corporations. That part of section 7383, Rev. Laws 1910, which provides that “at the election where it is proposed to vote an additional levy above the five mills herein authorized for school purposes the election shall be held to be a legal election when thirty per cent, of the total number of legal voters living in such school district shall participate therein,” applies to each city, whether having a charter form of government or not, and to the board of education in each city.</p> <p>2. SAME — Tax Rate — Validity of Statute. Said provision is not repugnant to the proviso of section 9, art. 10, of the Constitution, which reads: “Provided, that the aforesaid annual rate for school purposes may be increased by any school district by an amount not to exceed ten mills on the dollar valuation, on condition that a majority of the voters thereof voting at an election, vote for said increase.”</p> <p>3. EVJ DENCE — Schools and School Districts — School Election— Registration — Parol Evidenci^. A ¡taxpayer 'seeking to enjoin the extension of an additional tax for school purposes, purporting to be authorized by an election held pursuant to Rev. Laws 1910, sec. 7383, supra, upon the ground that 30 per cent, of the legal voters living in such school district did not participate therein, may establish such fact by parol evidence. The law requiring registration of voters in cities of the first class does not apply to such elections.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Case-Made—Time for Service — Dismissed. A party desiring to appeal has fifteen days in which to serve a case-made after the overruling of a motion for a new trial, and unless such case-made be served within such time or within an extension properly allowed, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Settlement of Case-Made — Notice. Where no notice of the time of settlement of a case-made is given or. waived, and there is no appearance of the opposite party either in person or by counsel, a case-made so settled is a nullity, and no jurisdiction is vested in this court to decide any question arising thereon.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Nowata >County; T. L. Brown, Judge. Action between W. E. Tucker and another and ■ W. V. Thraves. From the judgment the parties first mentioned bring error.

<p>1. BAIL — Actions—Parties.' The state' is a proper party plaintiff in a suit on a.forfeited bail bond against the defendant and hi¿3 sureties, which suit must be instituted by the county attorney in the name of the state.</p> <p>2. SAME — Pleading—Sufficiency of Answer. In this case suit wai filed by the county attorney in the name of the state upon a forfeited bail .bond against the defendant and his sureties. The defendant in the original case failed to appear. The sureties appeared and filed their answer, alleging, in substance, that the defendant was not guilty of any offense under the law, and that the petition did not show that he had violated any law of the state. Motion was filed for judgment on the pleadings, which motion was by the court sustained. Held, the answer constituted no legal defense, and the court committed no error in granting judgment on the pleadings.</p> <p>(Syllabus by the Court.)</p>

<p> Error from, District Court, Caddo County; Frank M. Bailey, Judge. </p> <p>Action by Abe Zahn against M. Obert. Judgment for plaintiff, and defendant brings- error.</p>

<p> Error from District Court, Caddo County; J. T. Johnson, Judge. </p> <p>Action by J. D. Lankford, State Bank Commissioner, against J. A. Menefee. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Oklahoma, County; W. B. Taylor, Judge. </p> <p>Action by A. M. Etherton against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — ‘Contracts—“Present Indebtedness” — Constitutional Limitations. A contract to furnish meals for the prisoners confined in the city jail during the incumbency of the then city marshal at ten cents per meal, payable after the meals are furnished, according to the city ordinances, although the period covered by the contract extends beyond the fiscal year in which the contract is signed, does not constitute a present indebtedness, and is not repugnant to section 26, art. 10, Const., nor in violation of section 765, Comp. Laws 1909.</p> <p>2. DAMAGES — Contracts—Breach—Measure of Damages. Where a party furnishes meals in accordance with' the terms of his contract, and is prevented by the city from further performing his contract, the measure of damages is the difference between the cost of production and the contract price from the date of the breach to the expiration of the period covered by the contract.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Okmulgee County; Wade 8. Stanfield, Judge. Action between Carleton W. Holbrook and' others and Theodore Grayson. From the judgment the parties first mentioned bring error.

Error from District Court, Noble) 'County; Hon. W. M. Bowles, Judge. Action by Henry J. Hartsog and others against O. B. Berry and others. Judgment for defendants, and plaintiffs bring error.

Error from District 'Court, Lancoln County; ■Chas. B. Wilson, Jr., Ju3ge. Action by George Davis and others against the Board of County Commissioners of Lincoln county and others. Judgment for defendants, and plaintiffs bring error. Plaintiffs in error were plaintiffs in the court below, and defendants in error, defendants.

<p>QUO WARRANTO — Venue—'Counties. In an action in the nature of quo warranto to test the validity of the organization of a new county, the proper respondents are the persons who assume to act in a corporate capacity, and such a suit may be brought in the county in which the respondents or some one of them reside or may be summoned, or in any court of general jurisdiction to which they voluntarily submit themselves.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by James K. Jones, Jr., administrator of the estate of James K. Jones, Sr., deceased, against A. S. Griffin and others. From the judgment, certain defendants bring error.

Error from County Court, Oklahoma, County; John W. Hayson, Judge. Action by J. M. Meek and others against S. P. Bennett and others. Judgment for plaintiffs, and defendant Bennett brings error.

Error from District Court, Osage County; B. H. Hudson, Judge. Proceedings instituted in county court between Mary L. Simpkins and others and David A. Ware, to have declared the rights of all persons in the matter of the estate of Victoria Ware, deceased. From a judgment of the district court on appeal that David A. Ware was entitled to one-third interest in such estate, the other parties bring error.

<p>Original action for writ of prohibition by the Osage & Oklahoma Company against Ret Millard, County Treasurer of Osage county, and another.</p>

<p>1. TAXATION — Assessment—Discovery—'Statute. Section 7449, Rev. Laws 1910, does not purport to confer authority upon the county officers, or any' one with whom the county commissioners may contract, to assist in the discovery of property not listed and assessed, 'or to assess property of a railroad or other public service corporation.</p> <p>2. ..TAXATION — Assessment—Jurisdiction—Railroad Property. That part of section 21, art. 10, of the Constitution which provides that the state board of equalization shall assess all railroad and public service corporation property confers exclusive jurisdiction on such board; and the Legislature is without power to vest authority in any other person or officer.</p> <p>Riddle, J., Dissenting.</p> <p>(Syllabus by the Court.)</p>

Flrror from District'Cornil, Jackson County; Frank Mathews, Judge. J. E. Fowler and others, sureties on the bail bond of Percy Belcher, moved to set aside an order forfeiting the bail, and, the ■motion being overruled, they bring error.

Errar from Superior Court, Muslcogee County; Barran* L. McCain, Judge. Action by W. H. Davidson against Pete and C. C. Nelson. Judgment for plaintiff before a justice was affirmed in the superior court, and defendants bring error.

<p>1. CERTIORARI — Jurisdiction—Supreme Court. This court ha3 power, under the provisions of section 2, article 7, of the Constitution, to issue the common-law writ of certiorari, in eases where no appeal or proceeding in error lies, to bring up the record of an inferior court or tribunal for review as to jurisdictional errors only.</p> <p>2. SAME — Judgment of County Court. Where upon appeal in a proceeding authorized under section 7449, Rev. Law's 1910, the county court exceeds its jurisdiction, by adjudging that property exempt from, taxation under section 6, article 10, of the Constitution, shall be listed and assessed for taxation, a writ of certiorari will issue and such judgment will be quashed.</p> <p>3. SAME — Nature of Writ. Certiorari is not a writ of right, but is to be granted or not in the discretion of the court. Proceedings on the return are confined solely to the record of the lower court or tribunal, and the writ will issue only in cases where no appeal or proceeding in error lies, and ordinarily where the error cannot otherwise be corrected.</p> <p>(Syllabus by the Court.)</p>

<p>WILLS — Testamentary Capacity — Surviving Wife — Jointly .Acquired Property. Section 8985, Compiled Laws oí Oklahoma 1909 (section 8418, Revised Laws of Oklahoma 1910), providing that, “when any person having title to any estate not otherwise limited toy marriage contract, dies without disposing of the estate by will, it descends and must toe distributed in the following manner: * * * Second. If the decendent leave no issue, the estate goes one-half to the surviving husband or wife, and the remaining one-half to the decedent’s father or mother, or, if he leave tooth father and mother, to them in equal shares; tout if there be no father or mother, then said remaining one-half goes, in equal shares, to the brothers and sisters of the decedent, and to the •children of any deceased brother or sister, by right of representation. If decedent leave no issue, nor husband nor wife, the estate must go to the father or mother, or if he leave tooth father ¡and mother, to them in equal shares; provided, that in all cases 'where property is acquired toy the joint industry of husband and wife during coverture, and there is no issue, the whole estate shall go to the survivor, at whose death, if any of the said ■property remain, one-half of such property shall go to the heirs ■of the husband and one-half to the heirs of the wife, according to the right of representation” — construed, and held not to preclude the surviving wife from disposing of by will such jointly ■■acquired property, inherited by her from the deceased husband.</p> <p>(Syllabus by the Court.)</p> <p>.Riddle and Bleakmore, JJ., dissenting.</p>

District Cou t, Grady County; Frank M. Bailey, Judge. Proceedings by the State, on the relation of the County Attor-' ney of Grady County and another, against Dave Hill and another. Judgment for plaintiffs, and defendants appeal.

Errar from District Court, Kingfisher County; Jas. B. Cullison, Judge. Action by Louis Selzer against Rena Selzer, as administratrix of the estate of John E. Selzer, deceased. Judgment for defendant, and plaintiff brings error.

<p> Error from County Cow% Beckham County; John C. Hendrix, Judge. </p> <p>Action by H. O. Hixon and others against T. J. MeAlpin. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by the Missouri, Kansas & Texas Kailway Company against the City of Tulsa and another. Judgment for defendants, and plaintiff brings error,

<p>APPEAL — Failure to File Briefs. Affirmed on account of failure of plaintiff in error to comply with rule 25 of this court (20 Okla. 12, 95 Pac. 8.)</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge- </p> <p>Petition of George .Friss for a construction of the will of MJaria A. Friss.</p>

Error'from Superior Court, Garfield County; Earn, Huett, Judge. Action by C. Y. Porter and others against the Enid Conservative Investment Company and others. From the judgment, the defendant named and others bring error.

<p>Error from- District Court> Músico gee County; B. C. Allen, Judge.</p> <p>Action by P. M. Vick against Annie Vick. Judgment for 'defendant, and plaintiff brings error.</p>

<p> Error from District Court, Muskogee 'County; B. P. Be Graffenried, Judge. </p> <p>Action by William L. Miller against the City of Muskogee. Judgment for defendant, and plaintiff brings error.</p>

<p> -Appeal from, State Board of Equalization. 'OJmies Mitschrichr Referee. </p> <p>Appeal of the Oklahoma Natural Gas Company from assessment of the State Board of Equalization.</p>

<p> Appeal from State Board of Equalization-Charles Mitschrich, Referee. </p> <p>Appeal of the Osage and Oklahoma Gas Company from assessment of the State Board of Equalization. Report of referee confirmed, and judgment ordered accordingly.</p>

<p>Mandamus by the St. Louis & San Francisco Railroad Company against Summers Hardy, Judge of the Twenty-Seventh Judicial District of Oklahoma.</p>

Error from- District Court, McCurtwin County; Summers Hardy, Judge. Action by the State against Will Releford and others on a bail bond. Judgment for plaintiff, and defendants bring error.

<p>Original proceeding for a writ of prohibition by Ina B. Hatfield against Charles F. Garnett.</p>

Error from District 'Court, Pawnee 'County; L. M. Poe, Ju3ge. Ejectment by A. W. Stroud against Maria Elliott and another. Judgment for defendants on a directed verdict, and plaintiff brings error.

Error from District Court, Lincoln Countyj Roy Hoffman, Judge. Petition by J. W. Cherry and others against Ed Hillman and others, County Commissioners and Ex Officio Commissioners of Deep Fork Drainage District No. 1, Lincoln county, and from the judgment Plomer J. Wilkins, Drainage Commissioner, brings error.

<p>Appeal from State Board of Equalization; Charles Mitchrich, Referee-</p> <p>Appeal of the Caney River Gas Company from assessment of the State Board of Equalization.</p>

<p>1. APPEAL AND ERROR — Presentation for Review — Rulings on Evidence — Brief. The action of the lower court in the exclusion or admission of evidence will not be reviewed by the Supreme Court, unless the evidence complained of is set out in the brief of the plaintiff in error, as required by rule 25 (38 Okla. x, 137 Pac. xi,) although properly assigned as error.</p> <p>2. APPEAL AND ERROR — Presentation for Review — Instructions— Brief. Where plaintiff in error fails to comply with rule 25 (38 Okla. x, 137 Pac. xi,) and set forth the instructions complained of in totidem verbis, alleged error in giving or refusing the same will not be considered here.</p> <p>3. APPEAL AND ERROR — Dismissal—iBrief. Where plaintiff in error fails to comply with rule 25 (38 Okla. x, 137 Pac. xi,) relative to briefing, the appeal may be dismissed.</p> <p>(Syllabus by the Court.)</p>

Original petition for writ of certiorari by the State of Oklahoma and the County of Grady, on the relation of Oscar Simpson, ■County Attorney, and others, against the Chickasha Cotton Oil ■Company.

<p>APPEAL AND ERROR — Case-Made—Settling and Signing — Judge Pro Tempore. Appeal dismissed upon the authority of City of Shawnee v. State Pub. Co. et al., 33 Okla. 363, 125 Pac. 462, 42 L. R. A. (N. S.) 616, and Co-operative Gin & Elev. Co. v. Asbury, 40 Okla. 141, 142 Pac. 802.</p> <p>(Syllabus by the Court.)</p>

<p>1. MASTER AND SERVANT — Injuries to Servant — Negligence— Safe Place — Rules and Regulations. In a suit in damages for personal injuries, where the evidence discloses that, at the time he was injured, plaintiff was at work for defendant in a room or bin 50x50 feet at the base of a pile of cement, which became dangerous and would slide and sweep everything before it when it assumed an angle of more than 45 degrees, that plaintiff was one of the crew engaged in shoveling the cement into sacks, weighing it and trucking it away, that prior thereto and at tha,t time it was a part of the system adopted by defendant in running said business, acting through its foreman, to warn the crew, engaged in' undermining the bank, of an impending slide, and that, while so engaged with his back to the bank, a slide occurred, unanticipated by him, and without the customary warning being given, or notice of any kind to him, and he was injured, held sufficient evidence to take the question of negligence to the jury on the allegation contained in the petition, in ' effect, that defendant had failed to exercise ordinary care to furnish plaintiff a reasonably safe place to work and proper means! to protect him from injury. Held, further, that the character of the work was not so complex as to require defendant to make rules and regulations to govern it, as a matter of law.</p> <p>2. TRIIAL — Issue—Submission. Where there is neither allegation nor proof that it was the duty of the master to make rules and regulations governing tjie work in‘ which plaintiff was employed at the time he was injured, -but the court left it to the jury to say whether it was or was not, and charged that, if plaintiff was injured as a result of such failure, defendant was liable, and it further appears that where it is, in effect, alleged that defendant failed to use ordinary care in furnishing plaintiff reasonably proper appliances, but there is no evidence reasonably tending to support the allegation, it was error for the court to submit those issues to the jury, and, it appearing that they were misled thereby, the error is prejudicial and reversible.</p> <p>(Syllabus by the Court.)</p>

•Error from Disln’iet Gowrt, Pawnee County; L. M. Poe, Judge. Action by H. W. Williams against Bebecca J. Purcell and others. From a judgment in favor of plaintiff Williams against defendant Flora E. Pearce, Bebecca J. Purcell and others bring error, and, from a judgment in favor of the administrators and heirs of Purcell, Williams brings error. Consolidated.

<p>APPEAL AND ERROR — Assignments of Ernor — New Trial — Denial. Where plaintiff in error fails to assign as error the overruling of the motion for a new trial in the petition in error, no question is properly presented in this court to review errors alleged to have occurred in the progress of the trial in the lower court, and the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>Original action for writ of prohibition by Wriley Pendley against T. O. Allen, Justice of the Peace of Precinct No. 14, of Miami, Oída., and another.</p>

<p> Error from County Court, McIntosh County; Franlc W. Bushing, Judge. </p> <p>Action by J. M. Waits against the Southern Surety Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, JvÁge. Action by Neita Corinne Cooney and another, by A. Neely, their guardian, against Hattie M. Bowles and another. Judgment for plaintiffs, and one of defendants brings error.

Error from Superior Court, Oklahoma County; Edward Bowes Oldfield> Judge. The rejection of the claim of D. K. Pope by the Board of Connty Commissioners of Oklahoma County was affirmed by the Superior Court of such county, and Pope brings error.

<p>DISTRICT AND PROSECUTING ATTORNEYS. — .County Attorney-Compensation. Section 1557, Rev. Laws Okla. 1910, provides: “The county attorney shall not engage in the private practice of law, but in addition to his annual salary * * * he shall receive 25 per cent, of all forfeited bonds arid recognizances by him collected.” Held, that this provision applies only to such bonds and recognizances collected by the. county attorney as are forfeited in the manner provided by section 6110, Rev. Laws 1910.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Texas County; W. C. Crow, Judge.</p> <p>Action by Maggie Winters against J. C. Sheil and others. Judgment for plaintiff, and defendants brings error.</p>

Error from District Count, Beamer County; R. H. Loofbourrow, Judge. An order of the Board of County Commissioners of Beaver County, Olda., allowing a claim in favor of W. G. Fields, was reversed by the district court, and the Board brings error.

<p>MECHA Nil CS’ LliENS — Property Subject — Public Buildings. A mechanics’ lien will not attach to public buildings of this state or any subdivision thereof in the absence of a statute authorizing the same.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma, County; W. B. Taylor, Judge. </p> <p>Action by L. K. Seymour against the Board of County Commissioners of Oklahoma County and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Comanche County; J. T. Johnson, Judge- Action by Magnolia Holliday and another against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiffs, and defendants brings error.

<p> Error from Disihdct Court, McCurfam County; A. H. Ferguson, Judge. </p> <p>Action by Sarah A. Ethridge against the Frisco Lumber Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Olcmulgee County; Wade S. Stanfield, Judge. Action between Marvin M. Alexander and another and Prank P. Lamb. On application of the parties first mentioned, a receiver was appointed. Thereafter Lamb’s motion to vacate the receivership was overruled, and he brings error.

Error from District Court, Grady County; Frank M. Bailey, Judge. Mandamus by the State, on the relation of G. • P. Cherry, against the State Board of Medical Examiners, etc. Judgment for relator, and defendants bring error.

<p>1. ATTORNEY GENERAL — Authority—-Directions of Governor-Right to Prosecute. When the Governor directs the Attorney General to conduct such investigations, commence and carry on such prosecutions, civil and criminal, to appear, defend, or prosecute such civil or criminal actions as might seem best to him, such directions are sufficient authority for the Attorney General to maintain an action to enjoin and abate a nuisance, and prosecute a defendant in such actions for contempt in violation of an injunction order issued therein.</p> <p>2. ATTORNEY GEN ERAL — .Authority—Right to “Prosecute.” The authority of the Attorney General to prosecute an action, when directed by the Governor so to do, includes the right, by himself or a legal assistant, to institute such action by filing a petition in a civil case or an information charging a criminal offense.</p> <p>3. INDICTMENT AND INFORMATI-ON — Information—Signing and Filing. An information charging a person with criminal contempt can only be signed and filed by some officer expressly authorized by law so to do.</p> <p>4. INDICTMENT AND -IN.FiO-RiMATION — Validity—Assistant Attorney General. An information filed by one claiming to be “Special Assistant Attorney General,” who is not one of the assistant attorneys general authorized by law, is void, and confers no jurisdiction upon the court; and the person charged will be discharged upon habeas corpus.</p> <p>('Syllabus by the Court.)</p>

Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. Replevin by the State National Bank of Shawnee, a corporation, against D. V. Liddell and John C. Liddell, Jr., doing business as D. Y. Liddell & Co., and others, wherein B. W. McMahan and others, doing business as B. W. McMahan & Co., intervened. Judgment for interveners on directed verdict, and plaintiff brings error.

<p> Error from District Court, Muslcogee County; S. V. O’Hare, Special Judge. </p> <p>Action by George McGilbray against' G. C. Friar and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by the City of Guthrie, a municipal corporation, against E. D. Stewart, County Treasurer of Logan County. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from County Court, Pittabwrg County; B. P. Hammond, Judge.</p> <p>Appeal by the McAlester Trust Company to the county court from the action of A. A. Watson, County Treasurer, in listing and assessing certain bonds. From a judgment sustaining the County Treasurer’s action, the Trust Company brings error.</p>

<p>APPEAL AND ERROR — Hypothetical Questions — Dismissal. In an action to enjoin defendant from trespassing on certain real estate belonging to plaintiff during the year 1914, defendant claimed the right of possession under a lease which expired on December 31, 1914. Judgment was rendered for defendant, and the ease was submitted here after said lease had expired. Held, the only matters presented for determination being abstract and hypotheti_ cal questions disconnected from the granting of any actual relief, the appeal is dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by S. C. Crossley against the Town of Luther, a municipal corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by Shubal S. Boone against J. L. Porter, as County Treasurer and Tax Collector of Comanche County. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; W. R. Tar/lor, Judge. Action by Elizabeth B. Theimer, guardian against Henry C. Rice and others. Judgment for the plaintiff, and defendant Rice brings error.

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by John White and others against the City of Chickasha, a municipal corporation. Judgment for plaintiffs, and defendant brings error.

Error from, District Court, Oklahoma County; W. B. Taylor, Judge. Action by Leon Eisman, survivor of John Eisman and another, partners doing business as Eismans and another, against the Hanover Fire Insurance Company, a corporation, and others. Judgment for plaintiffs, and defendants bring error.

<p>1. GUARDIAN AND WARD — Sale of Land — Action on Guardian’s Bond — 'Defense. In suit by a guardian on a bond executed by his predecessor in office and a surety, pursuant to Rev. Laws 1910, section 6564, it is no defense thereto that the land sold and its proceeds which the guardian, on settlement with the county court, had .been ordered to turn over to plaintiff were the property of the defendant guardian.</p> <p>2. GUARDIAN AND WARD — Guardian’s Bond — Action on Bond — - Estoppel. Where a gurdian executed the bond required by Rev. Laws, 1910, section 6564, and received the proceeds of the sale of land for his ward, and‘fails to- turn over the same to his successor in office after settlement with the county court, and after he is ordered so to do by the court, he is es-topped, in a suit on the bond against himself and his surety, to say that the court had no jurisdiction over the property, and to repudiate the trust and set up title thereto in himself. His surety is also estopped to set up title- thereto in the guardian.</p> <p>Brown, J., dissenting.</p>

<p> Error from .Superior Court; Tulsa Court; M. A. Breckenridge, Judge. ■ </p> <p>Actio-n. by F. A. Hart against the Sfo Louis & Sam. Francisco Railroad Company. Judgment ior plaintiff, and defendant brings error.</p>

<p>1. OFFICERS — County Superintendent — Compensation—ilncrease During Term. At the time of the adoption of the Constitution, the salary of the county superintendent of public instruction, elected, at that time, being fixed at $1,200 per annum by section 18 of the 'Schedule, because of article 23, section' 10, of the Constitution, cannot be changed during his term of office, and was not increased to $1,800 by Act of March 24, 1909. (Laws 1909, c. 11, art. 2.)</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — County Superintendents —Compensation. Comp. Laws 1909, section 8211, construed, and held, that the county superintendent of public instruction, as a member of the board of county examiners thereby created, is not entitled to receive for his services the sum of $3 per day.</p> <p>3. SCHOOLS AND SCHOOL DISTRICTS — County Superintendents— Compensation. Comp. Laws 1909, section 7981, construed, and held, that the county superintendent of public instruction is entitled to $1 for visiting each school, and not that amount for visiting each room at places having two or more rooms.</p> <p>4. APPEAL AND ERROR — Parties—Death—Order of Revivor — Nunc Pro Tuno Order. Where this court has been properly invoked to revive a cause against the personal representative of a defendant in error, without the consent of such representative, and where, intermediate the application and our order of revivor, the year provided for in Rev. Laws 1910, section 5293 expires, held, that this court’s delay in passing on the motion will not be allowed to prejudice the movant, and. the order will be entered nunc pro tunc as of the date when the motion was filed.</p> <p>(Syllabus by the Court.)</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Discharge of Teacher-Review by Courts — Action for Salary — Submission of Issues. In an action for salary under a contract to teach a term of school, made in conformity with section 8111, Comp. Laws 1909 (section 7824, Rev. Laws 1910), for a portion of such term which she was wrongfully prevented from teaching by being arbitrarily and wrongfully discharged by the school board and county superintendent, the action of the board and superintendent is subject to review by the courts; and the existence of the ground upon which she was discharged is an issue of fact which either party has a right to have submitted to a jury.</p> <p>2. SCHOOLS .AND SCHOOL DISTRICTS — Teacher—Wrongful Discharge — Right to Salary. In the absence of some exceptional defense, a school-teacher arbitrarily and wrongfully discharged, and thereby prevented from teaching the full term of such school, may, in an ordinary action, recover full salary for that portion of such term which she was prevented from teaching.</p> <p>(Syllabus by the Court.)</p>

<p>1. DRAINS — 'Drainage Districts — Petition—Sufficiency. A petition for the construction of a drainage district signed by the requisite number of petitioners, pursuant to section 2963, Rev. Laws 1910, which contains a general description, of the proposed drain, together with the starting point, route and terminus thereof, is sufficient to confer jurisdiction upon the board of county commissioners.</p> <p>2. DRAINS — Drainage District — ¡Petition—¡Sufficiency., In a petition for a drainage district, the general description of the proposed drain, its starting point, route, and terminus, were described as follows: “The proposed drain or improvement shall commence at a point on the Verdigris river where the ’same crosses the county line between Rogers and Wagoner counties, where a similar drainage ditch is under construction in Wagoner county, and joining the same at that point, thence up the said Verdigris river and its tributaries to such point as may be more definitely determined by a survey thereof, but approximately following said Verdigris river to the north line of Rogers county, and up the Caney river tributary to the intersection of the county line between Rogers and Washington counties, and having a total length of approximately forty miles. Held, a sufficient compliance with section 2963, supra.</p> <p>(Syllabus by the Court.)</p>

Error from >Superior Court, Logan County; 8. 8. Lawi'ence, Judge. Action by Frank Dale and another against E. W. Hardin and others. Judgment .for plaintiffs, and defendants bring error.

<p>1. COURTS — Supreme Court — Certiorari—Jurisdiction to Issue. In this jurisdiction the Supreme Court, by virtue of section 2, art. 7, Williams’ Const., is empowered to issue the common law writ of certiorari unaffected by any statute.</p> <p>•2. CERTIORARI — Scope of Remedy. Whilst certiorari is the appropriate remedy by which courts vested with superintending control ,and supervision over inferior tribunals established by statute review such proceedings or acts of the latter as are of a judicial nature for the purpose of determining whether they have kept within or exceeded the powers conferred upon them by law, the writ is never used for the purpose of reviewing - proceedings and acts of a ministerial, administrative, or legislative nature, whether such acts be exercised by a court, officer, or other tribunal.</p> <p>3. CERTIORARI — Scope of Review — Judicial Functions — Allotments —Approval of 'Conveyances. Neither that part of section 9 of the Act of Congress of May 27, 1908, c. 199, 35 Stat. 312, which provides “that no conveyance of any interest of any full-blood Indian heir in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee,” nor the rule promulgated by the Supreme Court, providing a system of procedure for the government of said court in the matter of the approval of said conveyances, require of said court the performance of any judicial, function.</p> <p>('Syllabus by the Court.)</p>

<p> Error from District Court, Muskogee County; B. P. De QraffenrieáJudge. </p> <p>Action by Elmer Co.on against Moses Ayers. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by the Oklahoma National Bank, a corporation, against the Chicago, Rock Island & Pacific Railway Company, a corporation. Judgment for defendant, and plaintiff brings error.

<p> Error from County Court, Caddo- County; C. B. Case, Special Judge. </p> <p>Replevin by C. C. Fisher against J. O. Dudley. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muslcogee County; Farrear L. McCain and Tí. G. Thurman, Judges. Action between Sally Brown, nee Vmn, an incompetent, by W. B. Newton, her guardian, and C. K. Marks and another. From the judgment, the party first mentioned, brings error.

<p>1. STATUTES — Enactment—Local and Special Laws — Superior Court. Chapter 87, Sess. Laws 1913, is general in 'its nature, and does not violate section '32, art. 5, of the Constitution, which requires notice to be given of the intended introduction of local and special laws and verified proof of such publication to be filed with the Secretary of 'State.</p> <p>2. STATUTES — Title and Subject-Matter — Statute Abolishing Superior Court. The title to a bill may be general, and need not specify every clause in the statute; it being- sufficient if they are referable to and cognate to the subject expressed.</p> <p>3. STATUTE — -Validity—Time of Taking Effect — -Statute Abolishing Superior'Court. It is competent for the Legislature to fix a date in the future upon- which an act shall become effective, provided that said date is not less than 90 days from the date of adjournment; and in cases where an emergency is declared to exist, they may be made effective from and after their passage and approval.</p> <p>Kane, C. J., dissenting.</p> <p>(Syllabus by the Court.)</p>

<p>1... CLERKS OF COURTS — Compensation of District Clerks — Statutes. 'Section 13 of the Organic Act (Wilson’s Rev. & Ann. St. 1903, see. 73) and 'chapter 16, title “Judiciary,” sec. 833, Rev. Stat. U. S. (XT. S. Comp. St. 1901, p. 642), relating to the fees and compensation of the clerks of the district courts of the territory of Oklahoma, are inconsistent with and repugnant to the schedule to Constitution (article 25, sec. 2), as well as locally inapplicable, hence were not put in force in the state.</p> <p>2. CLERKS OF COURTS — Compensation of District Clerk — Allowance by County Commissioners — Validity. During the year 1909, the board of county commissioners of Grant county allowed the defendant in error, who was at the time clerk of the district court of said county, a fee or charge of $5 per day for attendance upon the court during its sessions held in the months of October, 1908, and June, 1909. Held, that there being no statute authorizing such charge, and the board, not having the inherent right to fix fees or charges of public officers, was without jurisdiction in the premises, and its action was therefore void.</p> <p>3. OFFICERS — Payment of Illegal Claim — Right to Recover. Where a board of county commissioners fixed and subsequently allows to a public officer a fee not authorized by law, an action to recover the amount so paid thereunder will lie by the proper authorities, notwithstanding the fact that no appeal was taken from the action of the board of commissioners.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Murray County; B. McMillan, Judge. Suit by Bird Ashton against the Board of County Commissioners of the; County of Murray and others. Judgment for defendants, and plaintiff brings error.

<p>Error from'District Court, Muskogee County; B. C. Allen, Judge.</p> <p>Action by Jesse Brown against the Beeves Bealty Company. Judgment for plaintiff, and defendant brings error.</p>

JJrror from District Court, Oklahoma County; John J. Carney, Judge. ■ Action by Mancie Milam, executrix of the estate of Martin V. Milam, deceased, 'against the Oklahoma Railway Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Marshall County; Jesse M. Hatchett, Judge. The probate of an alleged will of Wallace Capey, deceased, offered for probate by C. C. Chesnut, was protested by Margaret Capey, and, from a judgment of the district court on «appeal from the county court sustaining the protests, Chestnut brings error.

<p> Error from County Court, Sequoyah County; Wilson O. Bruton, Special Judge. </p> <p>Action by tbe Farmers’ State Bank against David Bradley. Judgment for .plaintiff, and defendant brings error.</p>

<p> Error from District Court, Osage County; B. II. Hudson, Trial Judge. </p> <p>Action between Walter Williford McLean and Thomas J. McLean and others. From the judgment, Walter Williford McLean brings error.</p>

<p>1. PROHIBITION — Grounds—Existence of Other Remedy. Where an inferior court has jurisdiction of the subject-matter and the parties to an action, and an appeal lies from the orders of said court therein to the Supreme Court, prohibition will not lie, though said court may make an erroneous application of the law in the determination of said cause.</p> <p>2. PROHIBITION — Grounds—Existence of Other Remedy — Allowance of Alimony. Where a district court in a suit for divorce and alimony makes an allowance of alimony pendente lite and attorney’s fees, and grants a temporary injunction restraining the defendant from incumbering or alienating his property, prohibition will not lie to prevent the enforcement of such orders, as an appeal will lie from both orders, and supersedeas may be had by giving bond as authorized by law</p> <p>(Syllabus by the Court)</p>

<p>APPEAL AND ERROR — Necessary Parties — Dismissal. On appeal all parties to a judgment which is sought to be reversed, whose interest will be affected by a reversal of the judgment, must either join in the proecedings in error or be made parties defendant, and he brought into this court by service of summons within the statutory time, and where they do not voluntarily appear, or on motion, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. TAXATION — Taxing Officials — Time for Performing Duties — Directory Statute. The various provisions of the statute (Rev. Laws 1910) and chapter 152, Sess. Laws 1911, relating- to assessments, levies, extending on the tax rolls, etc., and prescribing the time in which these acts shall be performed, are for the benefit I of the state, providing, an orderly system regulating the conduct \ of the taxing officials, and are, so far as they relate to the time 1 within which such duties are to be performed, merely directory, and are not limitations upon the power of the taxing officials.</p> <p>2. TAXATION — Assessment by State Board — Power to Reassess, Where the state board of equalization has assessed property of all railroad and public service corporations, and has equalized the various county assessments and computed the amount of the ■ state levy, and caused the same to be certified by the state auditor to the several county clerks, said state board is without jurisdiction or authority to reconvene and reassess said property, or any part thereof.</p> <p>3. TAXATION — Assessment—Omitted Property. If any property, real or personal, of any railroad or public service corporation, [ be omitted in the assessment of any year or years, and thereby escape taxation, when such omission is discovered the state board may assess such property and extend against the same on the tax list all arrearages of taxes properly charged against it in connection with the assessment for the next or some subsequent year.</p> <p>4. TAXATION — State Board — Power to Reassess. The Legislature may make provision by law for a reassessment of property of railroads and public service corporations which has been assessed at less 'than its fair value, but, in the absence of such provision by the Legislature, no authority exists in the state board to do so.</p> <p>5. PROHIBITION — Grounds—Unlawful Assessment. Where the state board has assessed the property of all railroads and public service corporations and has equaiized county assessments, determined the amount of the state levy, and caused the state auditor to certify the same to the various county clerics, and taken a recess subject to the call of the Governor, and thereafter reconvenes and attempts to reassess any of the property previously assessed, or to add to the assessment already made property which it is claimed had been omitted, prohibition will lie, and is the proper remedy to restran said board from so doing.</p> <p>Brown, J., dissenting'.</p> <p>(Syllabus by the Court.</p>

Error from District Court, Caddo County; J. T. Johnson, Judge. Action by tbe Bales-Fulkerson Company, a copartnership, composed of E. Bales and another, against E. E. Freemen. From an order dissolving attachment, plaintiff brings error.

<p>Original action for writ of ■prohibition by Nellie Sidclell against R. McMillan, Judge of the District Court in and for Murray County.</p>

<p>Error from, County Court Major County; F. W. Madison, Judge.</p> <p>Action between G. A. Wahl and the White Sewing Machine Company, a corporation. From the judgment, Wahl brings error.</p>

Error from District Court, Murray Countyj B. McMillan, Judge. W. N. Lewis was -appointed guardian of Susie Aim Parker, a minor under 14 years of -age, and, from an order of the District Court affirming the decree of appointment, Joseph Parker and -another -bring error.

<p>APPEAL AND ERROR — Making and Serving Case-made — 'Extension of Time — Judge Pro Tempore. After a judge pro tempore has ceased to sit as a court, he has no power to extend the time for making and serving- case-made in a.n action tried before him.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Nowata, County; T. L. Brown, Judge. </p> <p>A petition for the sale of a part of tbe allotment of David French, deceased, was filed in county court by Tbo-mas Carson, deceased. Protests of Wash French, administrator of the estate of David French, deceased, and others, against the granting of the order of sale, were sustained by both the county court and the district court on appeal, and petitioner brings error.</p>