Volume 47 — Oklahoma Reports

<p>1. ELECTIONS — Contest—Ballots—Evidence. In a contest proceeding involving the legality of certain votes cast in precinct 5 in Wagoner county, evidence was introduced showing such disregard of the law and irregularity by the election officials in making and signing the certificate of returns as to warrant the court in permitting the ballots to be introduced in evidence. Held, there were sufficient facts and circumstances tending to identify the ballots in question to warrant the court in permitting the same to be introduced in evidence for the purpose of counting.</p> <p>2. SAME — Sufficiency of Evidence. In a contest proceeding over the office of county judge of Wagoner county, it was contended by plaintiff that at the general election of 1912 the total vote cast at said election in precinct 5 for all candidates for said office was 88; that he received 37 and defendant received 39, and the Socialist candidate 11 votes; that there was one mutilated ballot. Plaintiff’s evidence strongly tends to sustain his contention. Defendant contended there were 98 votes cast; that' he received 52, plaintiff 36, and the Socialist ten. The ballots were introduced in evidence, and after a recount thereof, in connection with the examination of the ballot stubs, the court found defendant’s contention to be true. Held, there was sufficient evidence reasonably tending to sustain the finding of the court, and its judgment will not be reversed on appeal.</p> <p>3. SAME — “Mutilated Ballot.” In precinct 7 in said county, there were 25 votes cast for plaintiff and five for defendant, upon which no names of candidates for, the offices of justice of the peace and constable on the Republican ticket were printed. At the suggestion of one of the election officers, the voters of these ballots wrote the names of one Taylor and one Clark for the offices of justice of the peace and constable, respectively. The court found that, in pursuance of a common understanding, said votes were cast for a person for each of said offices who was not entitled to run in said election, and with the purpose and intension of so marking and distinguishing their ballots that they would be counted in violation of law for a person who was not entitled to have said ballots so counted. That part of section 3086. Rev. Laws 1910, relative to mutilated ballots, reads: “Ballots bearing any mark as a distinguishing mark shall not be counted.” Held that, when the facts and circumstances show that any voter so marks or writes on his ballot with the intention of distinguishing it, the same becomes mutilated, within the purview of said section, and should not be counted. Held, further, there are sufficient facts and circumstances reasonably tending to sustain the finding of the court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Mandamus by Charles W. Lovett and others, County Commissioners of Creek County, against J. D. Lankford and others, composing the Banking Board of the State, and the Farmers’ & Merchants’ Bank of Sapulpa. Judgment for defendants, and plaintiffs bring error.</p>

■ Appeal from Corporation Commission. Proceedings before the Corporation Commission against the Atchison, Topeka & Santa Fe Railway for violation of an order of the commission. From an order penalizing the railroad for contempt, it appeals.

Error from District Court, Wagoner County; John H. King, Judge. Action by J. W. Sharpe, guardian of Thomas Samuels and Willie Samuels, Jr., against the Oklahoma Land Company and. others. Judgment for defendants named, and plaintiff brings error.

Error from District Court, Wagoner County; R. C. Allen, Judge. Action between Anna D. Harvison, guardian of Clifford Harvison, a minor, and J. M. Bridwell and others. From the judgment, Anna D. Harvison, guardian, etc., brings error.

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action between J. J. Patterson and' others and J. M. Barnwell and others. From the judgment the parties first mentioned bring error.

Original Proceeding for Writ of Prohibition. Original proceeding for writ of prohibition by the state, on the relation of Louis Baumle, against the District Court of the Tenth Judicial District of the State of Oklahoma, sitting in and for Pottawatomie county, Charles B. Wilson, Jr., judge thereof, and another.

<p> Error from District Court, Muskogee County; R. P. De Graffenried, Judge. </p> <p>Action by L. Miller against the Connecticut Fire Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Mandamus by the state, on the relation of C. W. Friend, county attorney, against E. D. Cummings and others, composing the county election board, and ■ others. Judgment for defendants, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Case-Made—Time to Suggest Amendments. The time allowed by the trial court for the suggestion of amendments to a case-made commences to run, not from the date of the service of the case-made, but from the expiration of the period of extension.</p> <p>2. SAME — Case-Made—Signing and Settling — Time. In the absence of a waiver by the defendant in error, a case-made signed and settled by the trial court before the expiration of the time granted for the suggestion of amendments is a nullity.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Comanche County; Frank M. Bailey, Judg.e. </p> <p>Suit by Samuel Nowlin against Sadie L. Melvin. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action, by Jennie H. Stephens against Katherine B. Laborn, W. R. Laborn, and the Lincoln Mortgage Loan Company. From' a judgment for plaintiff, and for defendant Lincoln Mortgage Loan Company on its cross-petition, defendants Laborn bring error.</p>

<p> Error from District Court, Oklahoma County; John J. Carney, Judge. </p> <p>Action by Mattie R. Fiedler against John Fiedler. Judgment for plaintiff, and she brings error.</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action between the Memphis Steel Construction Company and W. H. Hutchison. From the judgment, the Construction Company brings error.</p>

<p> Error from District Court, Cleveland County; R. McMillan, Judge. </p> <p>Action by John S. Allen and others against the City of Norman and others. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Proceedings in Error — Time for Commencing. Under section 1, c. 18, Sess. Laws 1910-11, proceedings in error in tliis court must be commenced within six months from the date of the rendition of the judgment appealed from.</p> <p>2. APPEAL AND ERROR — Decisions Appealable — Final Judgment —Dismissal. Where the record discloses no final judgment, there is nothing upon which to base an appeal to this court, and an attempted appeal upon a record which fails to show a final judgment will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Rrconl—S^ttPinent of Case-Mad;; — Notice. The record must show service of notice of time and place of ■ settlement of case-made on all defendants in error, or waiver' of same, and suggestion of amendments, or that all parties were present at the settlement thereof.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Assignments of Error — Questions of Fact — Dismissal. Where the only assignments of error call for a review of questions of fact not arising upon the pleadings, and the petition in error fails to assign as error the overruling of motion for new trial, the appeal will be dismissed.</p> <p>2. APPEAL AND ERROR — Petition in Error — Amendment. After expiration of the statutory time allowed for filing petition in error in this court, it cannot be amended, setting up new and distinct assignments of error.</p> <p>(Syllabus by the Court.)</p>

<p>1. WEIGHTS AND MEASURES — Right to Weigh Cotton — Competition with Public Weigher — Compress Company. A compress company, having a storage yard in connection with its compress, is not prohibited by the provisions of chapter 16, art. 15, secs. 1738-1749, Rev. Laws 1910, relating to the office of public weigher, from weighing cotton brought to it and left with it for storage, and charging 25 cents per bale storage thereon to the purchaser or owner thereof at the time the cotton is shipped out, when such charge is in good faith, and not for the purpose of obtaining cotton to weigh, or otherwise to compete with the public weigher.</p> <p>2. SAME — Injunction. It is not unlawful for a compress company or its agents to weigh without charge cotton brought to it with request that it be weighed, provided, such compress company or its agents are in no wise interested as dealer or speculator in the sale or purchase of cotton sold by weight; and an injunction will not lie at the instance of the county weigher to prevent such weighing Tby the said company or its agents.</p> <p>(Syllabus by the Court.) .</p>

Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by. School-No. 37 of Pontotoc county and'another.. against the Commerce Trust Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. APPEAL AND ERROR — Intermediate Appeal — Defective Bond —Probate Proceedings. The fact that a bond on appeal from the county court to the district court in a probate proceeding is made to the administrator as obligee, instead of to the state, as required by section 6510, Rev. Laws 1910 (section 5460, Comp. Laws 1909), does not render said bond void so as to defeat jurisdiction on appeal.</p> <p>2. COURTS — Probate Proceedings — Right of AppeaL An appeal lies from the district court to the Supreme Court from the final judgment of the district court in a proceeding under section 12, c. 65, Sess. Laws 1910, p. 118, in the same manner as from the judgment of said court in other probate proceedings.</p> <p>3. DESCENT AND DISTRIBUTION — What Law Governs — Resident — Property Within the State. Where an intestate at the time of his death was a resident of this state and owned property which at the time was situated in this state, the laws of Oklahoma will govern as to the descent and distribution of said property, and not the laws of the state where said property may have been acquired.</p> <p>4. SAME — Surviving Wife. Where an intestate dies in this state without issue, leaving his wife surviving, she takes, under the second subdivision of section 8418, Bev. Laws 1910 (section 8985, ' Comp. Laws 1909), all property left by him, situated in this state, acquired by the joint industry of herself and her deceased husband during coverture.</p> <p>(Syllabus by the. Court.)</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by Bennie Woodward by P. I. Brown, his guardian, against John A. Oliphant and others, Arthur A. Hart intervening. Judgment for plaintiff, and defendant John S. Bilby brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action between the Braggs Mercantile Company, a co-partnership, and the Richardson Dry Goods Company, a corporation. From the judgment, the Mercantile Company brings error.</p>

Error from District Court, Payne County; A. H. Huston, Judge. Action by Grace French against W. R. Jones, as Superintendent of Public Instruction of Payne County, and other's. From an order overruling defendants’ motion to set aside and dissolve a temporary injunction, defendants bring ■error.

Error from District Court, Wagoner County; . R. C. Allen, Judge. Action by J. CvCasaver and another against Lula D. Haines and others. Judgment for plaintiffs, and defendants bring error.

<p>1. TRIAL — instructions—Pleading and Proof. The instructions of the court should be based upon the issues as made by the pleadings and the evidence, and should present the respective theories of the parties in accordance with the testimony offered in- support thereof.</p> <p>2. APPEAL AND ERROR — Harmless Error — Argument of Counsel. In order for alleged misconduct of counsel in argument to the jury to effect a reversal of a judgment, it must appear that substantial prejudice resulted therefrom, and that the jury were influenced thereby, to the material detriment of the party complaining.</p> <p>(Syllabus by the Court.)</p>

<p>BAIL — Discharge of Sureties — Order That They Remain .Bound — Effect. Where an accused, who has given a recognizance with sureties to appear and answer the charge preferred against him, and abide the order of the court until said charge ha's been disposed of, and to do and receive what shall be enjoined by said court upon him, was in court after conviction to receive'the judgment and sentence pronounced against him, he immediately passed from the custody of his bail to the custody of the sheriff by an implied order of the court, by which his bail was discharged. Nor could they thereafter be bound by an order of the trial court, entered after the pronouncement of judgment- and sentence, which permits the accused to depart from custody for the purpose of procuring an appeal bond, and provides that in the meantime the sureties on the bail bond shall remain bound unto the state of Oklahoma.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Robert L. Rye against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Frank J. Hunter against the Frick-Reid Supply Company, a corporation, and another. Judgment for plaintiff, and defendants bring error.

<p>1. MASTER AND SERVANT — Injury to Servant — Independent Contractor — Question for the Court. Where a suit in damages for personal injuries was based upon the theory that deceased was entitled to the benefits of the Federal Employers’ Liability Aci (chapter 119, 35 Stat. 65 TU. S. Comp. St. 1913, secs. 8657-8665]) ; that defendant was engaged in interstate commerce; that deceased was an employee of defendant and engaged therein at the time of his death; and that defendant’s negligence, among other things, consisted in operating its train, which killed deceased in violation of the Federal Safety Appliance Act of March 2, 1893, e. 196. 27 Stat. 531, as amended by acts approved April 1, 1896. c. 87. 29 Stat. 85, and March 2, 1903, c. 976, 32 Stat. 943 (TJ. S. Comp. St. 1913, secs. 8605-8615) ; and where (lemendant pleaded, among other things, that deceased was an independent contractor, and stood on a written contract existing between defendant and deceased at the time of his death — held, that whether he was or was not an independent contractor was a question of law for the court to be determined from the face of the contract construed in the light of the surrounding circumstances.</p> <p>2. MASTER AND SERVANT — “Independent Contractor.”' An independent contractor is one who, exercising an independent employment, contracts to do a piece of work according to his own methods and -without being subject to the control of his employer except as to the result of the work.</p> <p>3. SAME — Injury to Servant — Existence of Relation. Where, at the time he was killed, deceased had a contract in writing with the defendant company obligating him, at his own cost but for no specific time, to furnish all labor necessary to handle all coal required by the company at Enid, and to unload the same from its cars to its coal chutes and pick up all coal dropped in so doing “and place the same on cars or engines where desired” by the company; also to break into certain dimensions and unloal “all coal for stationary boilersalso to unload wood from cars to storage piles in its yards there and to load cinders on its right of way at points designated by the company”; also to be' punctual and to discharge Ms duties thereunder without or inconvenience to the company, and should he fail, neglect,- or refuse to perform the contract, the company had the right to terminate the same at any time without being liable in; damages therefor; the company to be the sole judge as to whether he faithfully and satisfactorily performed the same; all tools to do the work to he furnished by the company and returned by deceased at its termination; the company to keep a record of all coal delivered at the chutes for unloading and deceased to make daily reports of the ears unloaded under the contract and receive, collect, and deliver to the authorized agent of the company a ticket from each engineman or other employee, showing the number of tons of coal delivered to any engine, and not to sublet the work without the. written consent of the company — held, that the relation existing between deceased and defendant thereunder was that of master and servant, and not proprietor and independent contractor; and this, too, although the contract provided: “It is hereby agreed and understood that the contractor shall be deemed and held as the original contractor, and the railway company reserves and holds no control over him in the doing of such work other than as to the result to be accomplished.”</p> <p>4. SAME — Injury to Kailroad Employee — Interstate Commerce— Question for Jury. Where, in a suit in damages for personal injuries based upon the Federal Employers’ Liability Act (35 St. t L 6" . rue defence was that although defendant was engaged in interstate commerce, deceased, if an employee of defendant, Was not engaged in interstate commerce at the time he was killed, and where the contract existing between them in effect constituted deceased an employee of defendant at work in its yards at Enid at the time he was killed; and the evidence reasonably tended to prove that his duties were to unload cars of coal into its chutes and to unload the same from there into the tenders of its engines engaged in hauling its interstate and intrastate trains; that a record of the coal thus unloaded and loaded was kept in the shape of tickets deposited in boxes at the chutes; that it was the duty of deceased each day, between 4 and 6 o’clock, to turn these tickets, in the nature of a report, over to an agent of defendant at its freighthouse, some distance up the tracks and northward from its chutes; and that while crossing the tracks on his way to the frieghthouse so. to do he was run over and killed by one of defendant’s backing trains — held, that the evidence was sufficient to take to the jury the question of whether deceased was killed while engaged in interstate commerce.</p> <p>5. SAME — Discovered Peri! — Negligence—Question for Jury. Evidence. examined and held that, as the same reasonably tends to prove that the engineer knew or ought to have known when he first row docee'.-ed deflecting on the track in front, of him that he would be upon the track when the train reached him and could have avoided injuring deceased by the exercise of proper care had the train been running at a lawful speed, the question of defendant’s negligence was for the jury.</p> <p>fi. FAME — Negligence of Engin-er — Qu-.tfticn for Jury. Evidence examined, and held that, as the same reasonably tends to prove that the engineer failed, while running the train in question, to use and operate the continuous train: power brake, with which the train was equipped, in violation of the Federal Safety Ap-yliauee Acts ol‘ March 2, 1896, as amended- by acts approved April 1, 1890, and March 2, 1903, the question of whether he did or not was for the jury.</p> <p>(Syllabus by the Court. 1</p>

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Injunction by Frank A. Smith and another against the Board of County Commissioners of Kay county and others. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from District Court, Osage County; R. H. Hudson, Judge. </p> <p>Action by James O. Littlejohn against the Midland Valley Railroad Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by J. L. Norris and others against the City of .Lawton and others. Judgment for defendants dissolving a temporary injunction and dismissing case, and plaintiffs bring error.

<p>1. JUSTICES OF THE PEACE — Eight of Appeal — Statute Amend: ing Invalid Statute. Assuming- that Stat. Okla. 1893, sec. 4773 (Wilson’s Rev. & Ann. St. 1903, sec. 5053), was in conflict with article 7, sec. 18, of the Oonstitution, at the time of the adoption of that instrument, and hence not brought over and put in force throughout the state by section 2 of the Schedule, and for that reason is void, act of April 21, 1913 (Laws 1913, c. 135), amending said section, is not void, assuming it purports to amend an • invalid statute.</p> <p>2. SAME — Bight of Appeal — Amount Involved. Since the adoption of the Oonstitution, an appeal may not be taken from the final judgment of a justice of the peace in a cause involving less than $20, in virtue of an act approved April 21, 1913 (chapter 135, p. 292, Sess. Laws 1913).</p> <p>3. SAME — Statutes. For the reason that an act approved April 21, 1913, falls within the general saving clause of an act approved March 3, 1911 (Laws 1910-11, c. 39), which said, saving clause provides, “* * * that this act shall not he construed to repeal any act of the Legislature enacted subsequent to the adjournment of the extraordinary session of the Legislature which convened in January, 1910,” said act is a valid and subsisting statute, although not contained in Rev. Laws 1910.</p> <p>(Syllabus by the Court.)</p>

Appeal by the Atchison, Topeka & Santa Fe Railway Company and others from an order of the Corporation Commission in a proceeding instituted by the Commission of its own motion.

<p> Error from District Court, Oklahoma County; John J. Carney, Judge. </p> <p>Action between Christian F. Sommer and William F. Harn and others. From the judgment, Sommer brings error.</p>

Error from District Court, Canadian County; John J. Carney, Judge. Action by Henry Schafer and H. C. Paulsen against E. G. Remmers and. others: From the judgment, the parties first mentioned bring error.

Error from District Court, Osage County; R. H. Hudson, Judge. Action by J. M. Worten against E. C. Snyder and another. Judgment for plaintiff, and the defendant named brings error.

<p> Error From District Court, Murray County; R. McMillan, Judge. </p> <p>Action by the [Watkins National Bank against T. Polk and others. Plaintiff, being dissatisfied with the amount of a judgment in its favor, brings error.</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action by C. W. Shepherd against the Oklahoma Portland Cement Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Canadian County; J. J. Carney, Judge. </p> <p>Action by Helen C. Wallace against Lee R. Patterson, County Treasurer. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by H. L. Chancey against William J. .Whin-nery. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, OJdahoma County; Geo. W. Clark, Judge. ' </p> <p>Action by Charles ,W. Schroeder against J. D. Lank-ford, State Bank Commissioner. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by the Maryland Casualty Company, a corporation, and another, against A. L. Welch, Insurance Commissioner. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Pottawatomie County; Roy Hoffman, Judge. Action by Peter Matukas, an infant, by Frances Ma-tukas, his mother and next friend, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; Geó. W. Clark, Judge. Action by John C. Adams against Robert W. Higgins and others. A demurrer to the petition was sustained, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Harmless Error — Ruling on Demurrer. Where a petition contains a misjoinder oí parties and causes, and: demurrer thereto is overruled, and issue is joined on a single cause against one of the defendants, the other causes being abandoned, the error in overruling the demurrer is harmless.</p> <p>2. APPEAL AND ERROR — Venue—Objection to Jurisdiction — . Waiver — Presentation Below — Necessity. Where a defendant resides and is served with summons in a county other than the one in which the suit is filed, and such defendant demurs to the petition without objection to the jurisdiction of the court, he thereby waives his right to have the case filed and tried in the county of his residence, and such objection cannot be raised for the first time on appeal.</p> <p>3. FRAUDS, STATUTE OF — Agreement by Stockholders — Satisfaction of Corporate Liability. Where A., B., and C. contract with a corporation to do certain work and such corporation borrows money from one of its stockholders to carry on the work, and such corporation is unable.to get funds to pay A., B., and C., who are about to quit on account of nonpayment, and said stockholder takes an assignment of all the assets of said corporation and takes control of the corporation work to carry out its contract in order to secure the payment of the money loaned by him to the corporation and verbally proposes to A., B., and C. that if they will complete their contract he will pay them the amount then due and for the labor to be performed, which is accepted and the work performed by A., B., and O. —held, that the stockholder’s proposal is an original promise, and the fact that it results in the satisfaction of the corporation’s liability does not bring it within the statute of frauds.</p> <p>4. TRIAL — Instructions—Indorsement. Where the court reads his charge to the jury and counsel then desire to have the court indorse thereon after each instruction “his exception,” “the ruling,” “allowance of exception,” and signature of the judge, the denial of such request is not error. The making of such record is not intended for inspection by the jury, and if counsel is permitted to save his exceptions and incorporate the same in his record for appeal, every right is thereby secured and protected.</p> <p>5. APPEAL AND ERROR — Harmless Error — Contents of Bill of Sale. Witnesses were permitted to testify as to the contents of a bill of sale, and the court properly instructed the jury to disregard such testimony. Held, not sufficient ground to justify a reversal of the cause.</p> <p>(Syllabus by the Court.)_</p>

Error from County Court, Pawnee County; Geo. E. Merritt, Judge. Action by Eva P. Gilbert and another against George Divelbiss, T. M. Johnson intervening. Judgment for inter-vener, and plaintiffs bring error.

Error from District Court, Osage County; R. H. Hudson, Judge. Action by the City of Pawhuska and another-against the Pawhuska Oil & Gas Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. INDIANS — Surplus Lands — Validity of Conveyance — Removal of Restrictions. On March 13, 1908, the United States Indian agent made an order removing the restrictions on alienation of • the surplus lands of a Choctaw Indian of three-fourths blood, which said order was duly approved by the Secretary of the Interior on March 26, 1908, “to be effective 30 days from date.” On April 25, 1908, she made, executed, and delivered a warranty deed to said lands. Held, that her title to said lands was thereby conveyed, following Baker v. Hammett et al., 23 Okla. 480, 100 Pac. 1114.</p> <p>2. SAME — Computation of Time — “From.” The word “from,” in its literal and restricted sense, generally means exclusive; but it may be used in a connection that means inclusive, and where, as here, the allottee could have alienated her allotment on March 26, 1908, after approval by the Secretary, but for the 30-day limitation imposed by the approval of the Secretary, that day will be included within the 30 days.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Beckham County; G. A. Brown, Judge.- </p> <p>Action by the First National Bank of Shamrock, Tex.,, against J. E. Terrell. Judgment for plaintiff, and defendant brings</p>

<p>1. CONTRACTS — Breach of Builder’s Contract — Payment of Lien Claimants — Sufficiency of Petition. A petition which alleges (hat plaintiff and defendant entered into two certain builders contracts, whereby the defendant contracted and agreed to build four certain houses at a stipulated price, and to furnish and pay for all the work and material necessary to the completion of such contract, and that said houses had been erected by defendant, and that plaintiff had paid to defendant' the contract price, less a small balance, and that certain material ami labor which went into the construction of said houses had not been ■ paid for by defendant, for which valid liens had been filed upon said property, in excess of the balance due, and which plaintiff was compelled to pay, and alleges defendant’s refusal to repay to plaintiff said amount, states a cause of action.</p> <p>2. COURTS; — County Court — Jurisdiction—Pleading. Where the county court has jurisdiction of the general class of actions to-which a suit belongs, and has jurisdiction of the amount claimed,, and to grant the principal relief demanded, the inclusion of other-allegations in the petition which are merely incidental to the-main case, upon which is founded a prayer for additional relief which is beyond the jurisdiction of the court to grant, does not divest jurisdiction of the entire cause, nor prevent the court from granting such relief as it may lawfully render consistent with, the pleadings and the facts.</p> <p>(Syllabus by the Court.)</p>

<p>1. ABATEMENT AND REVIVAL — Demurrer—Grounds—Pendency of Another Action. By section 4740, Rev. Laws 1910, a demurrer may be filed ¡to a.petition on the ground that there is another action pending between the same parties for the same cause only when the defect urged by the demurrer is apparent on the face-of the petition.</p> <p>2. APPEAL AND ERROR — Frivolous Appeal — Dismissal—Overruling of Demurrer. Where such defect does not appear on the face-of the petition, it is not error to overrule a demurrer which urges only the objection that there is another suit pending wherein the same issues are involved, and a petition in error which assigns no other error than the action of the court in so doing presents no error which may be reviewed by this court, and on motion-will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. FORCIBLE ENTRY AND DETAINER — Evidence—Muniments of Title. In an action of forcible entry and detainer deeds and other muniments of title may be offered in evidence for the purpose of showing the character of a party’s entry and possession, and to uphold the possession when once peaceably obtained.</p> <p>2. FORCIBLE ENTRY AND DETAINER — Right of Action — Possession. Under the statutes of this state, in the absence of the relation of landlord and tenant, a person who has never been in possession of the premises in controversy cannot maintain an action of forcible entry and detainer against one in possession under color of title.</p> <p>3. JUSTICES OF THE PEACE — Appeal—Jurisdiction—Ownership of Leasehold Estate. In an action of forcible entry and detainer, where the relation of landlord and tenant does not exist between the parties to the action, and both plaintiff and defendant are claiming possession of the premises in controversy under leases and rental contracts.with the owner, the justice court, in the first instance, and the county court upon appeal, is without jurisdiction to determine who in fact is the rightful owner of the leasehold estate in the premises.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>.Action by E. C. Hubble against the Palmer-Gregory Chiropractic College and others. Judgment for plaintiff, and the defendant named brings error.</p>

<p> Error from County Court, Harmon County; C. W. King, Judge. </p> <p>Action between the Groves National Bank and others and Guy Baker, a minor. From the judgment, the parties first mentioned bring error.'</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by J. M. Ratcliffe against T. J. Young and others. Judgment for plaintiff against defendants Price & Miller on the merits and against defendant William Wilson and others by default, from which Price & Miller bring error, without joining Wilson, their codefendant.

Complaint filed by the Travelers’ Corporation with the Corporation Commission against the St. Louis & San Francisco Railroad Company and others. From an order of the Commission, the Railroad Company named appeals.

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action by Leslie 3- Pope against the Choctaw Cotton Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p>MUNICIPAL CORPORATIONS — Streets—Excavation—Personal Injuries — Liability of City. Where a city, in bringing a street'to grade, excavates such street to a depth of several feet at a point where it intersects with a well-established road which has been constantly traveled for years (although such road has not been laid out as a street), and by such excavation creates and leaves •a place of danger, unguarded and without barriers or signals to warn the accustomed to travel said road and enter the street at the- place of such excavatioh, it is liable for damages sustained by such person being precipitated into said excavation and injured.</p> <p>(Syllabus by the Court.)</p>

<p>JUSTICES OF THE PEACE — Appeal—Pleadings—Discretion. Where defendant makes default in the justice court and, after appeal by him to the county court, attempts to file an answer and set-off to plaintiff’s bill of particulars, held not error, as a general rule, for the court to refuse to permit said answer to be filed and to refuse testimony offered in support of the issues thereby raised, under section 5467, Rev. Laws 1910, relative to filing additional pleadings on appeal “in furtherance of justice.”</p> <p>(Syllabus by the Court.)</p>

<p>1. ATTORNEY AND CLIENT — Contract of Attorney — Implied Obligations — Abandonment. Upon undertaking to conduct a cause for a client, an attorney impliedly stipulates to carry it to its termination, and is not at liberty to abandon it without cause or reasonable notice.</p> <p>2. JUDGMENT — Vacation—Unavoidable Casualty — Fault of Attorney. A petition to vacate a judgment by the court rendering the same, filed pursuant to section- 5267, Rev. Laws 1910, after setting forth a defense to the action wherein the judgment was rendered, alleged in substance that the plaintiffs had employed counsel to represent them in the former case; that, in pursuance of said employment, said counsel entered his name as attorney of record for said plaintiffs and acted as such attorney until the issues had been made up; that on several occasions after the issues had been joined, and prior to the rendition of the judg-íuent and decree rendered against them, said plaintiffs appeared with their said counsel ready for trial, but for one reason or another said cause was continued from term to term; that finally said cause was set for trial on a day certain of a subsequent term of said cour-t, of which action said plaintiffs had no notice; that, upon said cause being called for trial, said counsel for said defendants, in their absence and without cause, and without notifying his said clients of his intention so to do, or that their case had been set for trial at said term or on said day, arose in open court and announced that he withdrew from said cause as counsel for said defendants, whereupon the court, although said cause was at issue upon questions of fact decisive of the merits of said cause, rendered judgment and decree of foreclosure against said defendants. Held, that said petition stated facts sufficient to entitle the plaintiffs to the relief prayed for, upon the ground of unavoidable casualty preventing the plaintiffs from defending.</p> <p>(Syllabus by the Court.)</p>

Error from the County Court, Tillman County; T. E. Campbell, Judge. Action by the First National Bank of Frederick, Okla., a corporation, against J. Angus Gillis and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by the Town of Wellston against the Maryland Casualty Company, a corporation, and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by the L. M. Rumsey Manufacturing Company against the El Reno Vitrified Brick & Tile Company and others. Judgment for plaintiff, and defendants bring error..</p>

<p>APPEAL AND ERROR — Evidence—Grounds for Reversal — Action for Overcharge — Established Freight Rate — Best and Secondary Evidence. In an action by a shipper against a railway company to recover alleged overcharges paid upon various interstate shipments of lumber in carload. lots, the principal officer of the lumber company, over the objection of the railway company, was permitted to testify that, whilst, lie. did not know the point of origin of many of the shipments, ho did know they originated within a zone wherein the Interstate Commerce Commission had established a certain rate, and that the railway charged his company .a rate, in excess of the established rate, thereby creating the overcharge. Held error, upon the ground that the oral testimony of the witness was not the best evidence to prove the established rate. And held, further, that as this was the only evidence offered tending to prove the established rate, the verdict and judgment in favor of the plaintiff must bo reversed.</p> <p>■ (Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Parties—Joint Judgment — Dismissal. All parties against whom a joint judgment has been rendered must be made parties to a proceeding in error to reverse such judg-. ment, and the failing to join any of them, either as plaintiff or defendant in error, is ground for dismissal of the case.</p> <p>(Syllabus by the Court.)</p>

<p>MANDAMU8 — Alternative Writ — Motion to Quash — Noncomplianee with Rule. Motion to quash alternative writ of mandamus sustained for failure of the petitioner to observe rule 14 of the Supreme Court (38 Okla. viii, 137 Pac. ix).</p> <p>(Syllabus by the Court)</p>

<p> Error from County Court, Stephens County; J. W. Marshall, Judge. </p> <p>Action by Henrietta West against C. L. Grimes and another. Judgment for plaintiff, and defendant named brings error.</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Replevin by Louis Navarre and others against Thomas H. Ray and another, doing business as Ray & Lanyon. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by C. G. White against W. S. Hooker and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by Earlboro Township, a municipal corporation, and others, against R. L. Howard and others, Board of County Commissioners of Pottawatomie County, and others. Judgment for defendants, and plaintiffs bring error.

<p> ■Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by R. B. Alexander, trustee, against the Bank of Maysville and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Harmless Error — Admission of Evidence — Life Insurance. Where the answer of defendant charges that deceased had taken out large amounts of insurance in vai’ious companies, with a ‘fraudulent design to maim himself and defraud said insurance companies, and the evidence shows deceased to have carried a large amount of insurance, and to have come to his death by reason of a gunshot wound, inflicted by himself, and the evidence as to the shooting was circumstantial, the case will not be reversed because the tidal court admitted evidence of the good reputation of deceased.</p> <p>3. CONTINUANCE — Admissions to Prevent — Impeachment—Prior Contradictory Statements — Deposition. Where a party agrees that the statements contained in an application for continuance may he read as the deposition of the absent witness, such party will not be allowed to impeach said testimony by showing that the witness had made prior statements inconsistent with and contradictory of the statements therein contained, without the attention of the witness having first been called thereto.</p> <p>3. INSURANCE — Life Policy — False Statement in Application— —Effect. A false statement in answer to a question in an application for insurance, which is made a strict warranty by the terms of the application and certificate, will avoid the certificate, in the absence of any allegation or proof wf any fact that would amount to a waiver thereof.</p> <p>4. SAME — Question for Jury — Conflicting Evidence. The truth or falsity of warranties in an application for insurance, where there is a conflict in the evidence, is a queston of fact for the jury.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. J., dissenting.</p>

<p> Error from Superior Court, Oklahoma County; E. iD. Oldfield, Judge. </p> <p>Action by Maude A. Jones against the Oklahoma Planing Mill & Manufacturing Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action by Mrs. I. P. Bourne against Mrs. L. L. Har-grove and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by F. G. Bonfils and others against Lee A. Akin. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. STATUTES — ‘Officers—-Consolidation Act — Construction—Validity. In determining the constitutionality of the Consolidation Act (Act May 1, 1913 [Sess. Laws 1913, p. 330]), we will construe the same in pari materia with an act approved May 19, 1913 (Sess. Laws 1913, p. 465), and as amended by an act approved February 1, 1915 (Sess. Laws 1915, p. 5), and as if it had read from the beginning as it does with the amendatory act incorporated in it and all construed together as one act.</p> <p>2. STATUTES — Construction—Amendment. Where the intent' of the amendment is apparent, such intent will be carried into the original act, and every presumption indulged to effectuate that intention by referring words used in the amendatory act to the original act and construing them in their proper connection throughout the act as amended.</p> <p>3. CONSTITUTIONAL LAW — Counties — “Officers” — Deputies of County Clerk — Salaries—Delegation of Legislative Power. Where act approved May 1, 1913, provided that the county clerk in certain counties having a certain population, by and with the consent of the board of county commissioners, may appoint, when the public service demands it, a certain number of deputies, who shall receive certain salaries to be fixed by the board of county commissioners, not to exceed the amount fixed in the act, held, that said deputies are not officers with a term, within the contemplation of section 18 of the Schedule of the Constitution, but employees without a term, and that the act vesting the board of county commissioners with authority to fix their salaries is not a delegation of legislative power.</p> <p>4. COUNTIES — Statutes — County Clerks — Deputies—Construction of Statute — Prospective Operation — Special. Legislation. Where act approved May 1, 1913, provides (section 6), “In all counties having a population not to exceed 30,000, the county clerk may appoint not more than two deputies, * * *” and (section 7) “In counties having a population of more than 30,000 and not to exceed 60,000 the county clerk shall " ^ *” be allowed not to exceed three deputies, and (section 8) “In counties having a population of more than 60,000 the county clerk shall * * * lie allowed not to exceed five deputies!” and the amendatory act. approved February 1, 1915, provides (section 8), “In counties having a population of more than 60,000 as now or hereafter shown by the last federal census, the county clerk shall s * * be allowed not to exceed five deputies,” held, the intent of the amendment being to make the act prospective in its operation, that the words “as now or hereafter shown by the last federal census’' should be referred to and construed in their proper connection in sections 6 and 7 and made applicable to all counties within the contemplation of the act which may then or thereafter have the population prescribed by the act as amended. Held, further, that said act, construed as amended, being prospective in its operation, is general and not special legislation.</p> <p>¡5. COUNTIES — Officers—Consolidation Act — Validity—Amendment. The district court granted a peremptory writ commanding B., as register of deeds of K. county, to turn over the paraphernalia of his office to N., county clerk of that county, pursuant to the provisions of an act approved May 1, 1913, which said writ was resisted by B. on the ground that said act was unconstitutional. Thereafter, and pending an appeal from said judgment, said act was amended by an act approved February 1, 1915, so a § to cure the defect complained of. Held, that in passing upon th£ objections to the original act this court will construe the same as amended.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Oklahoma County; T. L. Brown, Assigned Judge. </p> <p>Action between C. Z. Curlee and another and Harry E. Ruland. From the judgment the parties first mentioned bring error, and Ruland moves to dismiss.</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action between R. H. Lewis, trading as R. H. Lewis & Co., and the Leitchfield Clothing Company, a corporation. . From the judgment, the party first mentioned brings error.

Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by Hiram Falter, by his guardian, F. F. Falter, against J. C. Walker, administrator of the estate of W. D. Loving, and others. Judgment for defendants, and plaintiff brings error.

<p>1. NEGLIGENCE — Presumption—Proof—Occurrence of Injury. The mere fact that an injury occurs carries with it no presumption of negligence; it is an affirmative fact for the injured party to establish that the defendant has been guilty of negligence. ,</p> <p>2. CARRIERS — Injury to Passenger — Negligence — Sufficiency of Evidence. Record examined, and held that the evidence adduced at the trial does not reasonably tend to establish negligence on the part of the defendant.</p> <p>3. . CARRIERS — Passengers—Contract—Duties of Carrier. Generally, the contract of a carrier is that it will carry the passenger safely and in a proper carriage, and afford him safe and convenient means for entering cars and alighting therefrom; but it does not contract to render him personál service or attention beyond that.</p> <p>4. SAME. The recognized exceptions to the general rule are passengers who, by reason of illness, great age, or other infirmity, are unable to help themselves.</p> <p>5. APPEAL AND ERROR — Evidence—Admissibility of Evidence— Res Gestae. The question of admissibility of statements as part of the res gestae should, in a great measure, be left to the determination of the trial court.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Marshall County; Charles S. Fenwick, Judge. </p> <p>Action by the First National Bank of Madill against G. E. Irwin and another. Judgment for plaintiff, and defendants bring error, and apply for an extension of time in which to prepare and file case-made.</p>

<p>1. • APPEAL AND ERROR — Presentation for Review — Record. The filing of a petition in error in this court, without a case-made or transcript of the record attached thereto, is not sufficient to-authorize the Supreme Court to review any of the errors alleged, and the proceeding will be dismissed.</p> <p>2. APPEAL AND ERROR — Record Proper — What Constitutes— Review. In this jurisdiction it is uniformly held that the record proper is made up of the petition, process, return, pleadings subsequent thereto, reports, verdicts, orders, and judgments; and a transcript thereof, when filed in this court with a petition in error, will confer jurisdiction on the Supreme Court to review any errors apparent on the face thereof.</p> <p>3. SAME- — “Transcript of the Record.” A certified copy of the final order or judgment in a case is not a transcript of the record within the meaning of the foregoing rule.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Hughes County; Tom D. McKeown, Assigned Judge. Action by G. C. Cochran and another, partners as the Cochran Grocery Company, against N. V. Bilby. Judgment for plaintiffs, and defendant brings error.

<p>COURTS — 'Suprema Court — Jurisdiction — Taxation — Assessment of Omitted Property. The Supreme Court is without jurisdiction to review on appeal an order or judgment of the county court rendered on appeal from an order or decision of a county treasurer. assessing property for taxation alleged to have been unlawfully omitted from the tax returns of a certain year.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; * Geo. W. Clark, Judge. Action by the Western Casualty and Guaranty Insurance Company, a corporation, against the Capitol State Bank of Oklahoma City, Okla., a corporation. Judgment for plaintiff, and defendant'brings error.

<p>APPEAL AND ERROR — Injunction — Discretionary Ruling. The granting of a temporary injunction is a matter within the discretion of the trial court, and such action of the court will be reversed only for abuse of discretion.</p> <p>(Syllabus bj' the Court.)</p>

Error from District Court, Pawnee County; L.-M. Poe, Judge. Action by G. W. Pitser against the City of Pawnee,'a corporation, and others. From an order dissolving a temporary injunction, plaintiff brings error.

<p> Error from County Court, Atoka County; Baxter Taylor, Judge. </p> <p>Action between Pete Watson and Henry J. Bond, County Treasurer. From the judgment, Watson brings error.</p>

<p> Error from District Court, Ellis County; G. A. Brown, Judge. </p> <p>Action by Edward H. Thompson against W. H.. Springfield and others. Judgment for plaintiff, and certain defendants bring error.</p>

<p>APPEAL AND EKROK — Frivolous Appeal — Dismissal. Where, upon an examination of the record, the petition in error, and the motion to dismiss, it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action by R. L. Gosnell against J. E. Prince. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by L. T. Bow against the Chickasaw Compress Company. ' Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by Emily F. Fearnow and others against Lut-tie B. Jones, Elmer Jones, and others. From the judgment, the defendants named bring error, and the defendant Phoenix Mutual Life Insurance Company files cross-petition in error, and a motion is made to dismiss.

Error from District Court, Muskogee County; R. P. De Graffenried, Judge. Action by Lennie Robinson against J. R. Green and otiiors. Judgment for plaintiff. From an order refusing to set aside the judgment, defendant Polly Boyd brings ei cor, naming in her petition defendant Green as a co-plaintiff in error, but without serving on him her case-made.

<p>1. APPEAL AND ERKOK — Defect of Parties — Objection. A delect of parties must be token advantage of either by demurrer or answer, and when such objection is not made at the trial in the manner minimi by statute, same is waived and cannot be urged for the first time in the Supreme Court.</p> <p>%. BANKS AND BANKING — Conversion of Bank Deposit — Necessary Parties — Contractor—Counterclaim. In an action against a hank for balance of a 'deposit alleged to have been wrongfully converted, the bank answered by general denial and counterclaim, setting out a written acceptance payable “as estimates are made by the architect, and comes due according to contract on the school building,” which was given by the contractor to the bank and accepted by the depositor. Held, that the contractor was not a necessary party to the action.</p> <p>3. SAME — ¡Reception of Evidence — Issues. In such action, evidence was admissible upon the issues raised by the cross-petition and reply, and the action of the court in excluding same was error-</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Mandamus by the State, on the relation of Chas. West, Attorney General, against the Oklahoma Natural Gas Company, a corporation. Judgment for relator, and defendant brings error.

<p>APPEAL AND ERROR — Case-Made—Service—Tiivfe. A purported case-made, which is not served within the time fixed by statute after the judgment is rendered or order is made, nor within an extension of time duly allowed, is a nullity, and cannot he considered by the Supreme Court on appeal.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Petition in Error — Time for Fiiing — Jurisdiction. Where more than six months lias intervened between the rendition of the filial order sought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Presenting Questions in Lower Court— Motion for New Trial. The filing and determining of a motion for a new trial of a contested question of fact not arising upon' tlie pleadings, but upon a motion, is unnecessary to authorize this court to review the order made upon such hearing.</p> <p>2. APPEAL AND ERROR — Case-Made—Time for Settlement. Where a motion, fo,r new trial is unnecessary to secure á review in this court of matter complained of by plaintiff in error, an order of the trial court, made after 15 days from the time the order sought to be reviewed is entered, but within 15 days after the motion for a new trial, timely filed, had been overruled, is invalid for the purpose of extending the time for settlement of the case-made.</p> <p>(¡-Syllabus by the Court.)</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by Amos K. Bass against T. M. Stockton. Judgment for plaintiff, and defendant brings error. Dismissed.</p>

<p> Error from Superior Court, Garfield County; Dan Huett, Judge. </p> <p>Action by Lucretia Hill against H. M. Spalding. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Pawnee County; Fred S. Liscum, Judge. Action between H. C. Canfield and others and James Bell and others. From the judgment the parties first mentioned bring error.

<p> Error from District Court, Kay County; W. M. Bowles, Judge. </p> <p>Action by F. K. Robinson against William H. George and others. Judgment for plaintiff, and certain of defendants bring error.</p>

<p>1. CORPORATIONS — “Stockholders”—Adoption of By-Laws. By section 1227, Rev. Laws 1910, the persons signing articles of incorporation, and their associates and successors, shall be a body politic and corporate, by the name and for the purposes stated in said articles. The subscribers thereto are therefore “stockholders." and the fact that they have not paid for the stock subscribed, or that stock certificates have not issued to them, does not affect their right to adopt by-laws.</p> <p>2. SAME — “Book of By-Laws.” By-laws typewritten on a sheet of poper and pasted in a book kept in the office of the corporation, though t.he book be not designated as provided by statute, is a sufficient compliance with section 1248, Rev. Laws 1910, providing that “all by-laws adopted must be certified by a majority of the directors and secretary of the corporation and copied in a legible hand in some -book kept in the office of the corporation, to be known as ‘the book of by-laws,’ and that no by-laws shall hike effect until so copied.”</p> <p>3. SAME — By-Laws—Typewritten Record. The statute last mentioned should be construed in connection with section 2947 of the Revised Laws of 1910, providing that writing (with the exception. named therein) “may be made in any manner”; thus authorizing a writing such as that involved to be typewritten as well as traced by hand with pen or pencil.</p> <p>4. BARKS — Certification—Necessity. While section 1248 requires that all by-laws be certified “by a majority of the directors and secretary of the corporation” and copied in the manner set out in the second paragraph, it does not undertake to make the by-laws ineffective unless so certified; and such certification is not required in an action between directors of the company charged with knowledge of the by-laws.and their contents.</p> <p>5. SAME — “By-Law”—Purpose. Tlie function of a “by-law” is to ' prescribe tbe rights and duties of the members with reference to the internal government of the corporation, the management of its affairs, and the rights and duties existing between the members inter se.</p> <p>6. CORPORATIONS — Directors — Acting by Attorney — Call of Meeting. A director of a private corporation may empower an agent or attorney for him and in his name to make and serve a demand for a special meeting of a board of directors.</p> <p>7. MANDAMUS — Acts of Corporate Officers — Call of ' Directors’ Meeting. Mandamus will lie to compel the president of a corporation to call a special meeting of the board of directors, there being a valid by-law requiring the issuance of the call, and where the necessary demand therefor has first been made.</p> <p>8. SAME — Defenses. The right of the board of directors to discharge plaintiff in error as manager of the corporation cannot be considered a defense to an action for mandamus to compel the calling of a directors’ meeting, though called for the purpose of considering his removal.</p> <p>(Syllabus by'the Court.)</p>

<p> Error from District Court, Oklahoma County; John J. Carney, Judge. </p> <p>Action by Alice Harn against Oklahoma City and •others for an injunction. Judgment for the defendants, and plaintiff brings error. '</p>

<p> Appeal from State Corporation Commission. </p> <p>Appeal by the Atchison, Topeka & Sahta Fe Railway Company and others from an order of the Corporation Commission.</p>

A complaint was filed by J. O. Hamilton and others before the Corporation Commission against the St. Louis & San Francisco Railroad _ Company, which was in the hands of James W. Lusk and others', as receivers. From an order requiring that the railroad company and its receivers build a depot and complete same by a certain time, the receivers appeal.

A complaint was filed with the Corporation Commission by E. -V. Wolverton against the United States Express Company, and, from an adverse order, the Express Company appeals.

Error from District Court, Payne County; A. H. Huston, Judge. ■ ■ Action by the State, on, the relation of Chas. West, Attorney General, against the Farmers’ National Bank of Cushing. Judgment for plaintiff for less than claimed, and plaintiff brings error.

Error from District Court,- Pawnee County; L. M. Poe, Judge. Action by the State, on the relation of R. S. Cole, County Attorney, against Murry Smith and others, to dissolve a consolidated school district. Judgment for plaintiff, and defendants bring error.

Error from District Court, Pittsburg County; Preslie B. ■ Cole, Judge. Action by the Midland Savings & Loan Company against Daniel iW. Beats and others, copartners doing business as the Cochran Grocery & Produce Company. Judgment for plaintiff, for less than the amount claimed, and it brings error.

<p>Error from County Court, Murray County; ' ’ Harry W. Fielding, Judge.</p> <p>Action by A. M. Meltpn against G. M. Weems. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. > Application by William Grayson for probate of the will of Hilly Hays, nee Bear, deceased, contested by Lena Chisso and others. From a judgment denying probate on appeal to the district court, proponent brings error.

<p>1. QUIETING TITLE — Frame — Proof — Presumption. In cases where fraud is alleged in the procuring of the execution of written instruments or deeds, the proof must sustain the allegations by a preponderance of the evidence so great as to overcome all opposing evidence and repel all opposing presumptions. It should be of such weight and cogency as to satisfactorily establish the wrongful conduct charged; honesty and fair dealing, as a rule, being presumed.</p> <p>2. DEEDS — Fraud—Sufficiency of Evidence. Evidence examined and held, not sufficient to sustain the allegations of the petition.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Creek County; R. C. Allen, Assigned Judge. </p> <p>Replevin by J. F. Fuller against Thomas Wills. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CARRIERS — Baggage—Liability as Insurer. A carrier, with respect to baggage accompanying a passenger, intrusted to its custody, incurs the responsibility oí a common carrier of goods, and is liable as an insurer of the baggage, except where the loss or damage is caused by the act of God, the act of the owner, or by the public enemy.</p> <p>2. SAME — Duty of Carrier. It is the duty of the carrier to deliver a passenger’s baggage, whether within the weight prescribed by statute or not, immediately upon the arrival of the passenger at his destination.</p> <p>3. EVIDENCE — Judicial Notice — Custom of Carriers — Baggage. It is a matter of general knowledge, of which courts will take judicial notice, that common carriers by rail make a practice of carrying as baggage the sample trunks of traveling salesmen.</p> <p>4. CARRIERS — Baggage—Liability. Where a carrier accepts as baggage the sample trunks of a traveling salesman, with knowledge of their character, it thereby waives any objection qn the ground that such trunks and contents are not properly baggage, and its liability therefor is the same as that with reference to baggage as defined in section 806, Rev. Laws 1910.</p> <p>5. SAME — Delay in Forwarding Sample Trunks — Measure of Damages. The measure of damages for a carrier’s delay in forwarding the sample trunks of a traveling salesman is the value of the use of the property during the delay, together with the loss of time occasioned thereby; the carrier’s agent receiving the trunks for transportation with knowledge of their contents and intended use.</p> <p>6. SAME) — Contemplated Damages. Loss of time and inability to make sales because of delay in receiving trunks containing samples will be regarded as within the contemplation of the carrier when it receives and checks a salesman’s sample trunks as baggage, so as to entitle him to recover damages therefor in case of such delay.</p> <p>7. SAME — Damages Recoverable. Such damages as proximately flow from the breach of the contract of carriage of baggage, or which, in the language of the statute, “in the ordinary course of things would be likely to result therefrom,” may be recovered, and this includes loss of time and inability to make sales directly occasioned by the breach of duty promptly to carry and deliver.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Washita County; James R. Tolbert, Judge. Action by the State against Ollie Murphy and others. Judgment for plaintiff, and defendants E. L. Holland and another bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Jesse W. Johnson, administrator of the estate of E. H. Johnson, deceased, against Martin Young and another. Judgment for plaintiff for less than amount claimed, and plaintiff brings error.

<p> Error from, County Court, Okmulgee County; ■ ■ George A. Johns, Judge. </p> <p>Action by Frank Young against the Town of Morris. Judgment for defendant, and plaintiff brings error.</p>

<p>1. PAYMENT — Sufficiency—Payment by Check. In the absence of an express agreement to the contrary, the acceptance of a check or draft in payment of a debt is conditional, depending upon the honor of the check or draft when presented, and in case of dishonor an action may be maintained upon the original debt.</p> <p>2. INSURANCE — Premium — Payment by Cheek — “Debt.” The annual premium stipulated for in a life insurance policy to be paid by the assured is not a “debt,” and the strict rule governing the payment of debts by check or draft does not control the payment of such premium.</p> <p>3. SAME — Cash Payment — Waiver. The annual premium stipulated for in the policy in suit was payable in cash, and the--insurance company had the right to demand cash in payment, but it .also, had the right to waive the payment in cash and to accept a check' or draft in payment.</p> <p>4. SAME. The annual premium upon the policy in suit was not paid upon the due date, and before the expiration .of the 30 days, of grace allowed by the terms of the policy expired, the state agent of the company wrote the assured that payment- might he made by a premium loan note for part and of the balance by-personal check, inclosing the form of the note with this letter. The note was executed and returned with check, upon receipt of which the state agent retained the note and returned the check to the assured, with the request that he send hank draft in place ■ thereof. This request was also complied with, the draft-having been received on the last day of grace, and deposited to the credit of the company on the following day and presented to the hank upon which it was drawn four days later and protested.because the issuing bank had closed-in the meantime, the assured having, died on the day following the deposit of the draft and prior' to its protest. Held, that the premium was -paid and the policy was in full force and effect at the time of the death of -the assured.</p> <p>5. APPEAL AND ERROR — Insurance — Review — Verdict — Good Faith. The good faith of the assured in issuing and -delivering the draft was a question of fact that was properly submitted to the jury under all the evidence, and the jury’s finding upon this issue, being supported by the evidence, is conclusive upon this court. - ‘</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>Action by Peter Collins against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff,' and defendant brings error.</p>

<p>1. INDIANS — Ancestral Estate — Indian Allotment. The - primary allotment of an enrolled fullblood Seminole Indian, who died intestate and without descendants after having received her allotment, must he considered as an ancestral estate, within the mean.-, ing of section 2531, c. 49, Mansf. Dig. Laws Ark., extended over and put in force in the Seminole Nation by act of Congress.</p> <p>3. SAME — Descent and Distribution. Sissie and Lena Jefferson,' full-blood Seminole Indians, died intestate without descendants, after having received their allotments, on the 12th day of February, 1903, .and the 20th day of July, 1904, respectively. HeW, that the devolution of their allotments is governed by the applicable provisions of chapter 49, Mansf. Dig. Laws Ark. Held, ■ further, said decedents acquired the right to their allotments by . their membership in the Seminole Tribe of Indians; that, their father and mother being full-blood Seminole Indians, their allotments came to them through the1 blood of their tribal parents, and as much through the 'blood of one as the other; that by virtue of that part of section 2531 of said chapter 49 which provides; “In cases where the intestate shall die without descendants, if the estate came by the father, then it shall ascend to the father and his heirs; if by the mother, the estate, or so much thereof as came by the mother, shall ascend to the mother and her heirs’,’ —said allotments ascended equally to the father and mother of said decedents and to their heirs.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by Louie Jacobs against Bessie Willie. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Powers of Judge Pro Tempore — Case-Made — Time for Malting and Serving — Extension. After a judge pro tempore lias ceased to sit as a court, he has no power to extend th'e time for making and serving case-made in an action tried before him, but such an extension can only be made by the regular judge who was in fact in possession, of the office.</p> <p>2. APPEAL AND ERROR — Case-Made—Time for Making and Serving — Extension. Under section 5246, Rev. Laws 1910, the court or judge thereof may, for accident or misfortune which could not reasonably have been avoided, extend the time of mating and serving case-made after the expiration of the time fixed in the previous order or time allowed by statute; provided, such order does not extend the time beyond the time limit in. which an appeal or proceedings in error may be commenced in the appellate court.</p> <p>3. SAME — Review of Finding. Where an order of extension was made under the provisions of said section 5246, and the order is regular on its face, and recites therein a finding by the court that accident or misfortune which could not reasonably have been avoided has been shown, such finding will not be reviewed in the absence of a cross-petition in error assigning as error the finding of the court therein. 1</p> <p>4. TAXATION — Collection —1 Injunction — Parties. In an action against the county treasurer and sheriff, or either of them, to enjoin their acts in collecting an illegal tax or assessment, the board of county commissioners is not a necessary party.</p> <p>5. DISMISSAL AND NONSUIT — Amended Petition. The filing of an amended petition omitting therefrom the name of one of the defendants, where no reference is made to the original petition nor any portion thereof adopted into the amended petition, the amended petition supersedes the original petition and operates as a dismissal of the cause as to the defendant omitted therefrom.</p> <p>6. JUDGMENT — Validity—Pleading and Proof. A judgment which is entirely outside of any issue made by the pleadings or the evidence in the case is a nullity.</p> <p>1. APPEAL AND ERROR — Cass-Made — Service—Parties—Void Judgment. Where a judgment as to a certain defendant therein is void, service of the case-made upon him is not required.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Discretionary Ruling — Challenges to Jurors. Rulings of the trial court upon challenges to individual jurors for bias or prejudice will not be reversed unless it appears that the court has abused its discretion to such an extent as to work an injustice upon or.e of the parties, or that the action of the court thereon might have worked such injustice.</p> <p>3. DEEDS — Signing by Mark — Attestation—Sufficiency. An officer’s certificate of the grantor’s acknowledgment of a deed filed for record is a sufficient compliance with a requirement of attestation by witnesses to the grantor’s signature by mark.</p> <p>3. ACKNOWLEDGMENT — Certificate—Evidence. The acknowledgment of a deed is prima facie evidence of its execution, and a deed properly acknowledged may be given in evidence without further proof, although its execution is denied under oath.</p> <p>4. SAME — Impeachment—Proof. The evidence to, impeach a certificate of acknowledgment should be clear, cogent, and convincing, and such as produces a conviction amounting to a moral certainty that the certificate is false.</p> <p>5. EVIDENCE — Recorded Instrument — Official Records. The records of a register of deeds, or certified copies thereof, may be received in evidence to prove an instrument authorized to be recorded when the original is not in the possession or under the 1 control of the party desiring to use the same.</p> <p>6. SAME^ — Best and Secondary. All that is necessary to authorize the admission in evidence of the records of the register of deeds as to any instrument authorized by law to be 'recorded is to produce enough evidence to satisfy the trial court of the fact that the original is not in the possession or under the control of the party offering the record.</p> <p>7. TRIAL — Instructions. Where plaintiff brought an action of ejectment for certain lands and in her testimony denied under oath the execution of certain deeds to defendant, relied upon by him, it was not error to refuse an instruction to the effect that if said deads were without consideration the plaintiff should recover.</p> <p>8. DEEDS — Execution—Age of Grantor — Sufficiency of Evidence— Ejectment. Evidence examined, and held to reasonably support the verdict.</p> <p>(Syllabus by the Court.)</p>