Volume 48 — Oklahoma Reports

<p>APPEAL AND 'ERROR — Time for Taking Appeal — Dismissal. A petition in error will be dismissed, even though the same is filed in this court within the sis months allowed under the statute, where no waiver of issuance and service of summons is had, ■and no praecipe for same filed, and no summons is issued nor general appearance made within such time.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by Alfred Hare against W. F. Harn and John F. Winans. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action between Josephine Hill and Mollie Hawkins. From the judgment, Josephine Hill brings error.</p>

<p>REWARDS — Right to Receive — Public Officers. It is contrary to sound public policy for a peace officer, acting witlrn his jurisdiction and within the scope of his authority and line of duty, ■'to receive rewards, other than the compensation allow id by law, for making arrests, whether such arrests be made during the hours when he was on or off duty.</p> <p>(Syllabus by Harrison, O.)</p>

<p> Error from District Court, Major County; W. L. Moore, Special Judge. </p> <p>Action by the Dr. Koch Vegetable Tea Company, a corporation, against William Davis and others. From the judgment, plaintiff brings error.</p>

<p> Error from District Court, Oklahoma County; George W. Clark, Judge. </p> <p>Action by Eunice N. Munger against Cora H. Cain and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Pontotoc County; A. H. Ferguson, Assigned Judge. Action by W. W. Sledge and another, partners as the Sledge Lumber Company, against N. A. McCurry, and his wife intervened. Judgment for plaintiffs, and defendant McCurry and wife bring error.

Error from, District Court, McClain County; R. McMillan, Judge. Action by Sam Frazier and others against W. H. Nichols and others. Judgment for defendants, and plaintiffs bring error, and defendants move to dismiss the petition in error.

Error from District Court, McClain County; R. McMillan, Judge. Action by Sam Frazier and others against L. C. Hoeker and others. Judgment for defendants, and plaintiffs bring error.

<p>APPEAL AND ERROR — Dimissal—Service of Summons. Where petition in oi-ror and transcript is file.1 in this court on December 4, 1012, and summons in error is issued on that date, but never returned and filed in this court, there- is nothing to show affirmatively that the defendants in error have legal notice of the appeal. ' And in such case, in the absence of waiver of summons in error, or general appearance, this court is without jurisdiction to pass upon tl eir rights, and the appeal will be dismissed.</p> <p>( Syllabus by Brett, (’.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Goodholm & Sparrow Investment Company, a corporation, against the Cleveland-Trinidad Paving Company and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by the Goodholm & Sparrow Investment Company against the Western Paving Company and others. Judgment for the defendants, and plaintiff brings error.</p>

<p> Error from County Court, Beckham County; John C. Hendrix, Judge. </p> <p>Action by J. A. Powers against R. K. Cook and others. Judgment for defendants, and plaintiff brings error, and, dying, the action is revived in the name of Matilda A. Powers and C. P. Hamilton, executors of the estate of J. A. Powers, deceased.</p>

<p>1. APPEAL AND ERROR — Verdict—Conflicting Evidence. When controverted questions of fact are submitted to a jury, and the evidence adduced is conflicting and contradictory,, but there is competent evidence reasonably tending to support every material allegation necessary to uphold the verdict, and the trial • court approves the verdict, and renders judgment in accordance therewith, and a new trial is refused, this court will not disturb the verdict of the jury and the judgment of the court on the weight of such conflicting evidence.</p> <p>2. CARRIERS — Person Assisting Passenger — Time to Alight — Duty of Carrier. One who goes upon a train to render assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor.</p> <p>3. SAME. The duties imposed by law upon carriers of passengers do not govern the conduct of -the carrier toward one who enters a train, not as a passenger, but to assist a passenger. Such a person, while not a passenger, is not a trespasser. In the absence of any regulation forbidding persons to enter trains for such purpose, a person who goes upon a train to assist a passenger does so under an implied permission or license; and, if notice of his intention to enter the train and return again to the station and platform is given to the company, it owes him the duty of ordinary care for his protection.</p> <p>4. SAME — Necessity of Permission — Notice of Intention. And it is not necessary, in order to entail on the carrier the duty so to handle its train as to allow reasonable facility for a person who has entered it to assist a passenger to get off without harm to himself, that such person should first have obtained the permission of the conductor to go upon the train, where he gave notice of his intention to do so to another employe, and there was no regulation prohibiting persons from getting upon the train.</p> <p>5. CARRIERS — Alighting from Moving Train — Contributory Negligence — Question for Jury. It cannot be said, as matter of law, independently of the statute forbidding the act, that it would be, under all circumstances, an act of negligence for a passenger to attempt to alight from a moving train; but the question is ordinarily one of fact, to be determined by the jury from all the circumstances of the case.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. ■ DAMAGES — Breach of Contract — Nominal Damages. In an action for breach of contract, if proven, the plaintiff may recover nominal damages, even though no appreciable injury has been shown.</p> <p>2. PLEADING — Demurrer. Where the pleader undertakes to allege ' two different remedies, or rights of recovery upon the same state of facts, and the question is presented as to which of said reme-dios. if either, is proper, a general demurrer to said petition should be overruled if the allegations in support of either of such remedies contain facts sufficient to constitute a cause of action; and, under such a condition of the pleadings, this court will not undertake to point oxxt the proper remedy, but will simply pass xxpon the question raised by the demurrer to the whole petition.</p> <p>(Syllabus by Robberts, C.)</p>

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by West M. Manwell against L. C. Grimes and another, John A. Buntin, garnishee. From an order discharging an order of garnishment and releasing the garnishee, plaintiff brings error.

<p>1. PLEADINGS — Sales—Action for Price — Failure of Warranty— Answer — Cure by Amendment, (a) In an action to recover the purchase price of merchandise sold and delivered, the answer to the petition, where the defense is a failure of warranty, if the defendant at the trial expects to avail himself of an offer to rescind and restore the merchandise, should contain an allegation to that effect.</p> <p>(b) But an answer defective in that particular, if amended during the trial by inserting those allegations, is cured.</p> <p>2. SALES — Action for Price — Defense—Condition Precedent. In the case at bar, the defendant received 1,000 pounds of hog powder and fed all, except 150 pounds, to the hogs, which last-named amount he offered to restore. Held, that it is unnecessary to offer to pay for the amount fed up, if it was worthless.</p> <p>3. SAME — Return of Goods — Necessity—Waiver. Defendant was not required to make a physical tender of the balance of the hog powder, to-wit, 150 pounds, because he had offered it back to plaintiff, and at that time plaintiff did not demand such an actual delivery, but expressly stated that it would not be accepted back.</p> <p>4. SALES — Rescission of Contract — Unreasonable Delay — Determination of Question. Generally the question of what is a reasonable time to offer to rescind and restore or offer to restore merchandise upon failure of warranty is a question of fact, which should be submitted to the jury; but, where it is apparent that the delay is so long as to be unreasonable, then the court should so decide, as a matter of law.</p> <p>(Syllabus by Mathews, O.)</p>

Error from District Court, Kiowa County; James R. Tolbert, Judge. Action between James Brennan and another and the Kay & Kiowa Oil Company. Judgment for the latter, and the former bring error.

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff in error has filed, no brief, as required by rule 7 of this court (38 Okla. yi, 137 Pac. ix), the judgment of the trial court - will be affirmed.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by E. R. Kolp and another, as copartners doing business under the name and style of E. R. & C. D. Kolp, against the J. B. Edgar Grain Company. Judgment for the plaintiffs in the county court' on appeal from a justice of the peace, and defendant brings error.

<p>APPEAL AND ERROR — Brief—Failure to File — Effect. Where plaintiffs in error have filed no brief, as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the judgment of the trial court will be affirmed.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiffs in error have filed no brief, as. required by rule 7 of this court (38 Okla. vi, 137 Pac. ix), the judgment of the trial court will be affirmed.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

<p> Error from, District Court, Kingfisher County; J. W. Steen, Judge. </p> <p>Action between Charles A. Love and Clyde Smith. From the judgment, Love brings error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff in error lias filed no brief, as required by rule 7 of this court (38 Okla. vi, 137 Pac. ix). tlie judgment of the trial court will be affirmed.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p> Error from District Court,- Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by Jeanetta Berryhill against Addie Nero, nee Grayson, and others. Judgment for plaintiff,, and defendant Jeff Simmons, a minor, by Orlando Swain, guardian ad litem, brings error.</p>

<p>REFORMATION OF INSTRUMENTS — Mistake—Mutuality—Degree of Proof. Where an agreement, as reduced to writing by a scrivener, omits or contains, terms or stipulations contrary to the common intention of the parties, the instrument will be corrected, so as to make it conform to their real intent, to the end that the parties be placed as they would have stood if the mistake had not occurred. But in such case the party alleging the mistake must show exactly in what it consists and the exact correction to be ma'de; that the mistake was mutual or common to both parties (that is, it must appear that both have done what neither intended). On the point, and to justify a correction, the evidence must be full,1 clear, unequivocal, and convincing as to ■ the mistake and its mutuality. Mere preponderance of evidence is not enough. The proof must establish the facts to a moral certainty and take the case out of the range of reasonable controversy; but it need not be so certain as to go beyond any possibility of controversy.</p> <p>(Syllabus by Brewer, O.)</p>

<p>1. PROCESS — Acquiring Jurisdiction of Nonresident — Compliance with Statute. All exceptional methods of obtaining jurisdiction over a person not found within fh' stare must he exercised in the way indicated by the statute.</p> <p>2. PROCESS — Personal Service on Nonresident — Compliance with Statute. In order that legal personal service may be bad under section 5616. Comp. Law's 1909, upon a nonresident of the state, an affidavit must be. filed that the case is one in which service of summons may be made by publication. The summons must be issued by the clerk of the court, under the seal of the court, and be directed to the person to be served, notifying him, and requiring him to answ'er the petition filed by plaintiff w'ithin 60 days from the day of service of summons. Such service- must be made by the sheriff of the county w'here service is made, and proof of such service made by affidavit of the person making the service, before a clerk of a court of record, or other officer-holding the seal thereof, or before some commissioner appointed by the Governor of the state, under an act providing for the appointment of commissioners to take depositions.</p> <p>3. GARNISHMENT — Property Subject — Negotiable Paper. No judgment can be rendered upon the liability of a garnishee by reason of his having drawm, accepted, made, or guaranteed any negotiable instrument.</p> <p>4. JUDGMENT — Void Judgment — Collateral Attack. A judgment rendered by a court which has not acquired jurisdiction of the person or the subject-matter of the action is void, and subject to collateral attack.</p> <p>5. GARNISHMENT — Action Against Garnishee — Defense—Payment Into Court. A garnishee who pays into court money by an order of a court which has not acquired jurisdiction of the defendant in the action, or of the subject-matter of the suit, cannot plead such order and payment as a defense to an action brought by such defendant to recover an indebtedness due such defendant by such garnishee.</p> <p>6. TRIAL — Demurrer to Evidence — Motion to Direct Verdict. A demurrer to the evidence of plaintiff, or a motion to direct a verdict against plaintiff, where the uncontradicted evidence shows beyond question that the plaintiff is entitled to recover, • as claimed in his petition, is frivolous.</p> <p>7. APPEAL AND ERROR — Presentation for Review — Brief — Instructions. In order to have this court consider assignments of error, based upon the giving or refusal to give instructions to the jury, plaintiff in error must set out in his brief in totidem verbis the instructions complained of.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. TRIAL — Demurrer to Evidence — Effect as Admission. It is. the settled rule that a demurrer to the evidence admits every fact which the evidence, in the slightest degree, tends to prove, and all inferences or conclusions that may be reasonably and logically drawn from the evidence.</p> <p>2 MASTER AND SERVANT — Injuries to Servant — Pleading—Federal Employers’ Liability Act. A ease which, by allégation and proof, is brought within the Employers’ Liability Act of April 22, 1908, 35 Stat. 65, e. 149 (U S. Comp. St. 1913, sections 8657-8665), is controlled by that act, although its provisions may not have been referred to in express terms in the pleadings, or presented at the trial.</p> <p>3. COMMERCE — Regulation of Interstate Commerce — Liability of Employers. In an action by an employee against an interstate carrier to recover damages.for personal injuries received while engaged in interstate commerce, constitutional and statutory provisions of this state, which are in conflict with the federal Employers’ Liability Act, are suspended and annulled.</p> <p>4. PIASTER AND SERVANT — Federal Employers’ Liability Act— Assumption of Risk — Question for Court. Under the Federal Employers’ Liability Act, the law of assumption of risk is that of the common law, as it existed prior to the passage of said act, except where the common carrier violates the provisions of any statute enacted for the safety of its employees; and where the evidence is undisputed, and the injury not causéd, as in this case, by any violation of such statutes, providing for the protection of employees, the. question of assumption of risk is one of law.</p> <p>5. MASTER AND SERVANT — Injuries to Servant — Negligence of Master — “Actionable Negligence” — Elements. In every case involving negligence, three elements are essential to constitute actionable negligence on the part of the master, when the wrong charged is not willfully and intentionally done, viz.: (1) The existence of a duty on the part of the master to protect the servant; (2) the failure of the master to perform that duty; (3) injury to the servant, approximately resulting from such failure —and the absence of these elements renders the petition bad on demurrer, or the evidence insufficient.</p> <p>6. SAME — Proximate Cause. There must be causal connection between the negligence averred and the injury received to entitle plaintiff to recover.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from District Court, Bryan County; A. H. Ferguson, Judge. </p> <p>Action by the Clinton National Bank of Clinton, Iowa, against E. F. Potts and R. L. Crudup.. Judgment for plaintiff, and defendant Potts brings error.</p>

<p>1. TAXATION — Excessive Levy — Injunction. Any tax levied in excess of that required by the estimates of the townships or school district officers for a fiscal year is illegal and void. (a) The collection of such illegal and void tax may ho enjoined.</p> <p>2. APPEAL AND ERROR — Review—Failure to File Brief. Where plaintiff in error has duly filed a brief which reasonably tends ,to sustain any error properly assigned, and has served a copy of such brief upon the defendant in error, but the latter has, without apparent excuse' therefor, failed to file any brief, this court is not required to search the record to find some theory not apparent from an examination of .the brief before it upon which the judgment of the trial court may be sustained.</p> <p>(Syllabus by Thacker, C.)</p>

<p>1. BROKERS — Actions for Compensation — Question for Jury. Where there is conflicting evidence as to the terms upon which real estate is listed with a broker, and as to who was the procuring cause of the sale of 'the real estate, these are both issues of fact to be 'determined by the jury.</p> <p>2. EVIDENCE — Admissibility—Conclusion of Witness. It is not error to sustain an objection to a question propounded to the purchaser of real estate which calls for a conclusion of the witness as to who influenced him to make the purchase. That is a question to be determined by the jury from all the acts and facts testified to.</p> <p>3. BROKERS — Compensation—'Procuring Purchaser — Sale. If a real estate broker claims a commission for his services, where no sale is actually consummated, then he must prove, by competent evidence, that he produced a purchaser able, ready, and willing to buy at the price and upon the terms fixed by the owner. But, where a sale is actually made and the deal closed by the owner himself, then the question of the ability, readiness, and willingness of the purchaser to buy is eliminated. And the fact that the owner himself closed the deal will be taken as conclusive that the terms were satisfactory to him.</p> <p>4. SAME — Sale by Owner — Reduced Price. If an owner of real estate lists his property with a,real estate broker, and then sells directly, at a reduced price, to a purchaser the broker had found;. and with whom he was negotiating a sale, without having introduced him to his principal, then the owner is liable to the broker for a commission on the price received.</p> <p>(Syllabus by Brett, O.)</p>

<p> Error from District Court, Craig County; Preston S. Davis, Judge. </p> <p>Action by England Bros, against J. W. Young and others. Judgment for plaintiffs,' and defendants bring error.</p>

Error from District Court, Carter County; S. H. Bussell, Judge. Action by the National Lumber & Creosóting jCom-pany against the estate of Joe F. Robison, deceased. Judgment for defendant, and plaintiff brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Syllabus tbe same as in Bryan v. Umholtz, 42 Okla. 477, 141 Pac. 1107.</p> <p>(Syllabus by Devereux, O.)</p>

Error from District Court, Marshall County; A. H. Ferguson, Judge. Action between Thomas J. Guy and another and Zora Guy. From the judgment, the parties first mentioned bring error.

<p>1. APPEAL AND ERROR — Time for Appeal — Judgment on Demurrer — Separate Counts. Tlie petition contained four counts or causes of action. Each cause of action grew out of tlie same transaction, but the pleading in each count is complete within itself. The trial court sustained a demurrer to two counts. The plaintiff elected to stand on these two counts, and the court entered an order dismissing the 'two counts, and the trial proceeded upon the two counts to which the demurrer was overruled. Held, that an appeal lies from the order of the court sustaining the demurrer to the two counts, and is not premature if brought before the final action upon the other two counts.</p> <p>2. MINES AND MINERALS — Oil Lease — Assignment—Construction — “Subject to.” “Subject to,” as used in an assignment of a lease subject to the terms and conditions of a former lease, are words of qualification, ánd not of contract.</p> <p>3. MINES AND MINERALS — Oil Lease — Assignment—Construction. A., owning an oil lease, assigns one-half thereof to B. upon •the consideration that B. will bear all the expense of drilling, equipping, and operating the oil wells to be drilled thereon: B. assigns to O. three-fourths of his interest in the oil lease upon the consideration that C. will bear the entire expense of development of the oil lease, obligating himself to carry out the contract of B. to A. Then C. assigns a one-eighth interest in the . lease to D., and in the assignment it is stated: “This assignment is and shall be binding upon the parties hereto and is made subject to the terms and conditions of said lease from A. to B.” Held, that D. under the terms of the contract became liable to pay only oné-eighth of the expense of drilling, equipping, and operating the oil wells.</p> <p>. 4. APPEAL AND ERROR — Briefs—Citation of Authorities. In briefing cases for the consideration of this court, counsel should cite authorities to support their contention, and a brief that does not cite authorities that sustain the argument set out there- ' in is generally of little or no value or assistance to the court.</p> <p>(Syllabus by Mathews, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Reversal. Where appellant complies with the rules and files his brief, but appellee files no brief, the court will not search the record; but where the brief filed reasonably tends to support the. assignments of error, a reversal will be ordered.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p> Error from District Court, Pawnee County; L. M. Poe, Judge. </p> <p>Action by the Minnetonka Oil Company, a corporation, against the Cleveland Vitrified Brick Company, a corporation. Judgment for defendant, and plaintiff brings error, and defendant moves to dismiss.</p>

Error from District Court, Tulsa County; L.’M. Poe, Judge. Action by C. H. Hatcher, Jr., against Lindsay Kin-kaid and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Seminole County; Tom D.,McKeown, Judge. Ejectment by Louis Lotty, by his guardian J. D. Kiker, against J. W. Hatfield and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Tillman County; Frank Mathews, Judge. Action by C. S. Miller against E. A. Marriott. Judgment for defendant, and plaintiff brings error. In this action the plaintiff in error in his first cause of action asks for a mandatory injunction to require the defendant to remove a dam built by the defendant, which the, plaintiff alleged interrupted the flow of the water in times of flood, and thereby caused his land to be- overflowed.

<p> Error from County Court, Wagoner County; Leon B. Fant, Judge. </p> <p>Action by George Sulser against Leonard Beck. Judgment for plaintiff, and defendant brings error.</p> <p>This action was instituted by the plaintiff below to recover the sum of $25 offered as a reward by the defendant below for the arrest of one Stanley Baker, who was charged by criminal complaint with the offense of disposing of mortgaged property in Wagoner county, and a warrant duly issued thereon, which was delivered to the defendant in error, who was a duly qualified and acting constable in Wagoner county. The defendant in error testified that he executed the warrant in Wagoner county by arresting Baker. On the trial the court charged the jury:</p> <p>“You are further instructed that, if you believe from a preponderance of the evidence that the defendant, L. G. Beck, offered to pay the plaintiiff, or see that there was paid to plaintiff, the sum of $25, if he would arrest said Stanley Baker, and that said Stanley Baker was arrested by the plaintiff, then it will be your duty to find for the plaintiff in the sum of $25.”</p> <p>There was a verdict and judgment for the plaintiff below, and the defendant brings error to this court by petition in error and case-made, assigning as error the giving of the above instruction.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by J. A. Thurmond against Arthur Adams and another. Judgment for the plaintiff, and defendants bring error.</p> <p>This was an action on two promissory notes, both dated March 29, 1909, each for $425, one due on the 29th of September, 1909, and the other due on the 29th of March, 1910, with interest at 8 per cent, from date, and with the further provision that, in case of collection by suit or attorney, the makers of the notes were to pay 10 per cent, of the amount of said notes as an attorney fee. These notes were payable to Joseph Brashears, and were indorsed to the plaintiff. The petition further alleges that the payee, Brashears, for value, indorsed and transferred these two notes to the plaintiff, and that the plaintiff is the legal holder and owner of the notes, but the petition does not allege the date of indorsement, nor does the in-dorsement on the notes set out the date. The answer was duly verified, and, after admitting the execution of the notes, pleaded as a defense that they were executed to Joseph Brashears, as the consideration for the purchase price of certain land set out in the answer, and that at the time of the execution of the notes, it was represented to the defendants by Brashears that he was the sole and only heir at law of one Louis Wachubbee, deceased, and •at the time of the purchase of said land it was agreed, that the plaintiffs in error herein, defendants in the court helow, were to institute suit against the parties in possession of the land, and all asserting right to possession, to quiet title in Brashears, and that it was further agreed that the defendants were not to pay the notes unless they were successful in quieting the title; that in pursuance of this agreement they instituted a suit in the district •court of Garvin county, where the land was situated, to quiet title to -this land, which suit is still pending; that upon application of Joseph Brashears, the payee in the notes, he was made a party to this suit for quieting title, a copy of his application to be made a party being attached to the answer. The defendants further pleaded by way of defense that Brashears, the payee in the notes, warranted the title and possession of the land to the defendants, and that the warranty has totally failed, because there are several persons asserting the title to the land adversely to the plaintiffs in error, one of whom is in possession and claims to be the owner of the land. The application of Brashears to be made a party to the suit foir quieting title, among other things, sets up that a part of the purchase price of this land was paid at the time, and the balance evidenced by the notes signed by Oakes and Adams, the plaintiffs in error, and it was agreed at the time that L. W. Oakes was to have possession of the land above described before the notes should be paid, that the notes are past due and unpaid, and that until L. W. Oakes gets possession of the land he (Brashears) has no right to insist on their payment, for which reason Brashears •claims thát he is interested in the suit to quiet title, and is entitled to be made a party. This application was duly verified by Brashears. On the trial this paper was introduced in evidence, and in addition the plaintiffs in error introduced evidence tending to show that the notes in suit were given as the consideration for the purchase of the said land described in the answer, and that at the time they were executed, another person was in possession of the land, and that it was agreed that the plaintiffs in error were to bring suit to get possession of the land, and that they were buying the land conditionally on getting possession; that, acting under this agreement, they did bring this action, which was pending when the case'at bar was tried, and that they had never gotten possession of the land. The plaintiff introduced no evidence, except the notes. A jury was waived, and the case submitted to the court to try the issues, both of law and of fact, who found all the facts in favor of the plaintiff and rendered judgment in his favor, to which exception was duly saved. A motion for a new trial was duly filed, overruled, and exceptions saved, and the defendants below bring the case here by petition in error and case-made.</p>

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by Charles W. Payne and others against Mary Kline Glenn and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from County Court, Oklahoma County; John W. Hay son, Judge. </p> <p>Action by the Standard Fashion Company, a corporation, against J. M. Morgan. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by Leeper Bros. Lumber Company, a cor-, poration, against Swan Martin. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Custer County; J. IF. Lawter, Judge. A petition filed by the Board of Trustees of the Town of Thomas with the county commissioners of Custer county, praying for annexation of certain territory to the town, was dismissed on motions filed by A. L. Moser and others and the Kansas City, Mexico & Orient Railway Company.

<p> Error from County Court, Le Flore County; P. C. Bolger, Judge. </p> <p>Action by Leigh-Head & Co., a partnership, against A. J. Moore and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. DESCENT AND DISTRIBUTION — “Children.” Ordinarily, the word “children” means tlie immediate offspring, 'and does not include “grandchildren.”</p> <p>2. SAME. The word “children,” as used in subdivision 3 of section S418, Rev. Laws 1910, which provides that, if there be no issue, nor husband, nor wife, nor father, nor mother, the estate of an intestate descends in equal shares to the brothers and sisders of the- decedent, and to the children of any deceased brother or sister, by right of representation, does not include grandchildren of a deceased brother or sister of the intestate.</p> <p>(Syllabus by Robberts, C.)</p>

Error .from County Court, Creek County; Warren H. Brown, Judge. Action brought in a justice’s court by Ed Abraham against W. W. Provance. Judgment for defendant in the justice court and on appeal to the county court, and plaintiff brings error.

<p>APPEAL AND ERROR — Reversal—Brief. Where plaintiff in error has completed his record and filed it in this court, and has served ■and filed a brief in compliance with the rules of this court, and defendant in error has neither filed a brief nor offered any excuse for his failure to do so,.this court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in acordance with the prayer of the petition of plaintiff in error.</p> <p>(Syllabus by Dudley, O.)</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Clarence F. Thomas against Albert Z. English. Judgment for the plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by H. P. Porter against Robert Shipman and David Shipman. Judgment for the plaintiff on the pleadings, and defendants bring error.

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. </p> <p>Suit by James B. Lair against E. A. Jackson and another. Judgment for plaintiff, and defendants bring error.-</p> <p>The plaintiffs in error, E. A. Jackson and Minnie Landrum, when not designated by their individual names, will be. designated as defendants, and the defendant in error, James B. Lair, will be designated as plaintiff, in accord with their respective titles in the trial court. This case was tried to the court without a jury and resulted in a judgment for plaintiff. .</p> <p>The said Minnie Landrum, nee Chambers, a Creek freedwoman, to whom the N. W. *4 of section 21, township 12, range 16 east, had theretofore been allotted on October 2, 1907, by warranty deed describing the N. E. *4 of said N. W. 14, on July 28, 1908, by warranty deed describing the N. W. % of said N. W. %, on September 18, 1908, by warranty deed describing the S. % of said N. W. 1/4,, and on October 31, 1910, by warranty deed describing said N. W. % in its entirety, in which deeds her husband joined, conveyed said described lands to the plaintiff upon a valuable consideration paid on the date of the deed in each instance, except the last, aggregating $2,200. On August 25, 1910, said Minnie Landrum, joined by her husband, executed and delivered to her codefendant, E. A. Jackson, a warranty deed, purporting to convey said N. W. 14 to him upon a purported consideration of $1 “and other valuation consideration,” including (as appears from a contract of that date between them) the undertaking of said E. A. Jackson to sue, at his own expense, to cancel said deeds to plaintiff and perfect title in himself and thereupon to pay the said Minnie Landrum $1,000 as the purchase price of said land. At the time of the deed to E. A. Jackson, plaintiff was, and since more than one year antedating said deed has been in the actual possession of all said land, and the said Minnie Landrum has neither taken rent nor been in possession since her conveyances to plaintiff in 1907-08. Plaintiff brought this suit to cancel said deed to Jackson and to remove the cloud thereof from his title; and each of the defendants filed an answer in which they alleged that at the time of each of the deeds to the plaintiff antedating the one to E. A. Jackson the said Minnie Landrum was a minor, and her said deeds to plaintiff were therefore void, except as a cloud upon Jackson’s title, and they prayed for a cancellation of plaintiff’s deeds and for title and possession for the benefit of Jackson. There was, in behalf of plaintiff, reasonably strong oral evidence to the effect that Minnie Landrum was at least 19 years old in 1907, when one of the deeds was executed, and at least 20 years old in 1908, when the next two deeds were executed to the plaintiff; and there was no less cogent oral evidence in behalf of defendants to the effect that she was only 15 in 1907 and 16 in 1908. All this oral evidence was admitted without objection. The defendants offered and the court, upon objection, excluded the Creek freedman enrollment record, showing conclusively, under the act of’ Congress approved May 27, 1908, and effective July 27, 1908 (35 Stat. 312, c. 199), as to the age of Minnie Landrum, where the question arises upon her conveyances on or after July 27, 1908, that she was 18 years old in that year, although this record does not, in any manner, tend to. show at what time in that year she reached that age.</p>

<p>1. JUDGMENT — Sufficiency—Reference to Recommendations of Referee. 'The language of the decree is sufficient, considered in connection with the recommendations of the referee, which were confirmed by the court, to set aside the contract attached in the petition.</p> <p>2. REFERENCE — Oath of Referee — Sufficiency—Waiver. A substantial compliance with the statute, requiring a referee to qualify by taking an oath “truthfully to hear and examine the cause, and to make a just and true report therein,” etc., is sufficient; and even la. failure to take the oath will be deemed to have been waived, where the parties proceed to trial and submit their case without an objection on the specific point.</p> <p>3. SAME — Power of Referee — Implied Stipulation. Litigants may stipulate that the referee shall settle the issues in a cause referred to him; and where a litigant joins in a motion asking for a reference, and that a particular person be appointed referee, and that he be clothed with such power, and later by filing supplemental pleadings, calls forth and avails himself of the exercise of such power, such actions are equivalent to a stipulation that it be exercised.</p> <p>4. APPEAL AND ERROR — Harmless Error — Irregularities. Irregularities, not affecting the substantial rights of the parties, will not cause the reversal of a decree which fairly settles and adjusts the equities between the parties.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by H. P. Porter against Robert Shipman and David Shipman. Judgment for the plaintiff on the pleadings, and defendants bring error.</p>

<p>HOMESTEAD — Wilis. B. died in Kingfisher county, Okla., in 1910, seised and possessed of 160 acres of land located therein, on which he and .his wife lived as a homestead, and left surviving him his second wife, and ten adult ehijdren, six by her and four by bis first wife. In 1906, while living in Kansas, be made a will, with the written consent of his wife attached thereto according to the laws of that state, by the terms of which he gave 4/1(1 of his property, real and personal, to his children by his first wife, and the remaining 6/10 to his children by his second wife-subject to her life estate therein, and provided that his property should be appraised, and after payment of his debts, a sufficient amount of the remainder thereof should be sold in order to pay the first 4/10 bequeathed to his children by his first wife. Held:</p> <p>(a) That the wife’s written consent attached to said will was merely an election to take under the terms thereof, in lieu of her right to inherit under the statute, and did not enlarge or diminish the terms of said will.</p> <p>(b) That under the Constitution the homestead is reserved to the .family, and, upon the death of said testator, his surviving wife, under section 632S, Rev. Laws 1910, had the right to continue to use and occupy the homestead during her lifetime; this right was hers individually, and not an interest in testator’s property, and therefore not subject.to testamentary disposition,, and did not pass under said will, and her right to use and occupy the same is not inconsistent with the terms arid provisions of said will; and that said homestead cannot be sold, over her objections, under the terms of said will, except subject to her right to use and occupy the same during her lifetime. '</p> <p>(Syllabus by Dudley, C.)</p>

<p>HOMESTEAD — Wills. Syllabus same as in Harriet E. Bacus v. Melissa E. Bums et al., ante, p. 285, 149 Pac. 1115.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from County Court, Atoka County; Baxter Taylor, Judge. </p> <p>Action by J. Milford Freeman against Thomas J. Ball. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Noioata County; T. L. Brown, Judge. Action by Mary Davis Hill, by Davis Hill, her father and natural guardian and next friend, against Thomas L. Thompson, administrator of the estate of Thomas R. Thompson, deceased. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Carter County; ' S. H. Russell, Judge. </p> <p>The application of the Holmes & Hibbard Mortgage Company, a corporation, for leave to sue E. E. Guillot, appointed receiver for the Smith-Fraley Lumber Company, a corporation, in an action brought against' it by the Ardmore National Bank, a corporation, was denied, and the Mortgage Company brings error.</p>

<p> Error from County Court, Roger Mills County; E. E. Tracy, Judge. </p> <p>Action by R. C. Chance against the Continental Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by the Continental Gin Conipany against G. F. Sullivan. Judgment was rendered on the verdict and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Failure to File Brief — Reversal. When a defendant in error fails to file a brief, land assigns no reason for this failure, if on examination of the record and brief of plaintiff in error it appears that the grounds for reversal urged by plaintiff in error are reasonably sustained by his brief,, the cause will be reversed.</p> <p>(Syllabus by Brett, C.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Mandamus by the City of Bartlesville, Okla., a municipal corporation, against the Bartlesville Water Company, a corporation.^ Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Presentation Below — Motion for New Trial — Necessity. A motion for r.ew trial is not necessary to enable tills court to review tlie action of the trial court in sustaining a motion to dismiss an appeal from a justice court.</p> <p>%. SAME — Time for Appeal — Dismissal of Intermediate Appeal. Where the order ¡appealed from is made upon a motion to dismiss an appeal from a justice court, the time within which to perfect the appeal commences at the time of the entering of the final order, and not at the time of the order of the court overruling the motion for a new trial.</p> <p>3. SAME — Jurisdiction—Time for Appeal. Where the petition in error is filed in this court after the statute of limitations has run against an appeal this court has no jurisdiction of the case.</p> <p>(Syllabus by Kittenhouse, O.)</p>

Error from District Court, Choctaw County; Summers Hardy, Judge. Action by Katie Logan and others against C. L. Webb and. others. Judgment for plaintiffs, and defendants bring error.

<p> Error from District Court, Le Flore County!; W. H. Brown, Judge. </p> <p>Action by Dora Delaney against the City of Poteau. Judgment for plaintiff, and defendant brings error.</p>

E'i'ror from District Court, Oklahoma County; W. R. Taylor, Judge. Action by E. H. Perry and others against Nettie E. Jones, administratrix of the estate of C. G. Jones, deceased. Judgment for defendant, and plaintiffs bring error.

Error from District Court, LeFlore County; W. H. B¥own, Judge. Action by J. J. Myers and others against Ed; Mc-Cutcheon and others. Judgment for plaintiffs, and defendants bring error.

Error from, District Court, Jefferson County; Frank M. Bailey, Judge. Action by the South Texas Lumber Company against C. C. Epps and another for balance due for material sold and for foreclosure of a lien.

<p> Error from District Court, Nowata County; T. L. Brown, Judge. </p> <p>Action by Campbell H. Taylor, Sr., against Campbell H. Taylor, Jr. Judgment for plaintiff, and defendant brings error.</p>

<p>1. -EVIDENCE — Presumptions—Basis. An inference is not ordinarily permissible from a prior inference, but ordinarily should have as its immediate base testimonial evidence that is certain.</p> <p>2. SAME — Maintenance of Dumping Ground — Disease. In the absence of evidence reasonably tending to exclude other sources from which the bacillus typhosus, causing typhoid fever, may have been derived, or to show that such bacillus existed in any of the matter deposited in the defendant city’s dumping ground, which was on a lower plane and 1,943 feet to the southeast of plaintiff’s dwelling, it cannot be inferred that members of plaintiff’s family contracted said disease from said dumping ground, notwithstanding the winds had blown from that direction toward plaintiff’s dwelling house, and there was an unusually great number of flies at said ground and at said house during the summer preceding the attack of such fever.</p> <p>3. APPEAL AND ERROR — Verdict—Judgment—Evidence. In the absence of evidence reasonably tending to support a verdict and judgment, the case must be reversed.</p> <p>(Syllabus by Thacker, O.)</p>

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>Action by the Wellsville Oil Company against Martha Miller and others. From an order directing the payment of money deposited in court to the defendants after judgment had been affirmed on plaintiff’s appeal, the plaintiff brings error.</p> <p>This is the second appeal between the same parties, involving the same subject-matter. The first appeal was from a judgment of the district court of Rogers county, sustaining a demurrer to the petition filed herein, upon the ground that the petition failed to state a cause of action. Plaintiff in error elected to stand upon said petition, and thereupon the court awarded judgment in favor of defendants in error. A stipulation was entered into by and between the parties that the money arising from the sale of the oil produced from the land should be deposited in said court to await the result of the appeal to this court from said judgment rendered, which said stipulation was made a part of the judgment rendered. An appeal was perfected in said cause; the error assigned being that the court erred in sustaining said demurrer to the petition. The case was elaborately briefed, and twice orally argued to this court, and a most thorough and exhaustive opinion written by Judge Galbarith. Wellsville Oil Co. v. Miller, 44 Olda. 493, 145 Pac. 344. Said judgment of the lower court was affirmed, and plaintiff adjudged to have acquired no rights under the alleged lease set up in the petition, nor any interest in the lands described in said petition, nor any interest in the moneys arising from the sale of the oil produced from said lands. In due time a mandate was issued from this court, commanding said trial court to cause said mandate to be shown of record “in your court, and to take such other and further proceedings herein as shall accord with said order and right and justice in the case.”</p> <p>Defendants orally moved the court to order the clerk to pay to defendants the amount of money deposited in-said court and the money in the hands of the Prairie Oil & Gas Company, in the aggregate amounting to $22,000, in accord with said stipulation. The Wellsville Oil Company appeared specially by its attorney to suggest:</p> <p>“So far as this motion is concerned and the matters argued here, that this court has acquired no jurisdiction of the Wellsville Oil Company for the purpose of the motion; that in the first place, your- honors entered a judgment against us; that judgment has been affirmed, and the mandate spread of record. That ends the case here.”</p> <p>Thereafter the following journal entry, omitting the caption, was made and entered, to which defendants duly excepted:</p> <p>“Be it remembered, on this 8th day of January, A. D., 1915, the above-entitled cause came on for hearing in the above-entitled court on the regular assignment of the docket for final judgment and disposition under the order and mandate of the Supreme Court of the state of Oklahoma, and the mandate of the Supreme Court of Oklahoma having been heretofore spread of record in this court in the above-entitled cause. The plaintiff, Wellsville Oil Company, appeared by its attorneys, James A. Veasey and Jerry O’Meara, appearing specially to challenge the jurisdiction of the' court, and the defendant Martha Miller appeared by her attorney, J. A. Tillotson, and the Alpha Oil Company appeared by its attorney, W. J. Gregg. Thereupon, upon the application of the defendant, Martha Miller, for an order of this court distributing the money and funds now in the hands and custody of this court arising from the production and sale of oil from the premises in controversy in plaintiff’s petition, described, to wit, S. % of the S. E. % of section 17, township 24 north, range 17 east, containing 80 acres, more or less, the court finds that as a result of the former order and judgment of this court entered in said cause on the 5th day of December, 1911, by agreement and stipulation' of all parties to this cause, plaintiff and defendants, there has come into the possession and under the control of this court the sum of $12,880, arising from the sale of oil produced from the premises hereinbefore described during the pendency of this litigation, and that there is the. further sum of $8,445.38 in the hands of the Prairie Oil & Gas Company, the proceeds of the sale of oil arising from the above-described premises, which by the terms of said stipulation and judgment of the court, entered in pursuance thereof on the 5th day of December, 1911, is now subject to the order and disposition of this court. The court finds from the mandate and opinion of the Supreme Court of the state, of Oklahoma rendered In this cause and the allegations in plaintiff’s petition herein that the defendant, Martha Miller, is the owner of the real estate here-inbefore described, to wit, S. 1/2 of the S. E. % of section 17, township 24 north, range 17 east, containing 80 acres, more or less, and entitled to the possession thereof, subject to the right of the Alpha Oil Company under its oil and gas mining lease from the said Martha Miller, of date, 29th day of February, 1908, and running for a period of 15 years; that all of the moneys now in the hands of the clerk of this court and the sum of $8,445.38 in the hands of the Prairie Oil & Gas Company are moneys arising from the sale of oil produced from said premises, and that the plaintiff has no right, title, or interest in any part of said moneys arising from the sale of oil and gas from said premises.</p> <p>“In accordance with the stipulation and agreement made in open court between Martha Miller and the Alpha Oil Company as to the devision of said moneys now in the hands of the clerk of this court and the Prairie Oil & Gas Company between the said respective parties defendants,it is ordered by the court that the clerk of this court pay to Martha Miller out of the funds now in his hands the sum of $10,456, and that the balance of the money in the hands of the clerk, together with all sums-of money in the hands of the Prairie Oil & Gas Company be paid and delivered to the Alpha Oil Company. And it is hereby ordered by the court that the Prairie Oil & Gas Company pay over to the Alpha Oil Company all moneys now in its hands arising from the proceeds of oil or gas purchased by it from the lands hereinbefore described, in lieu of paying same into this court; and upon such payment the Prairie Oil & Gas Company be relieved from all further liability to either Martha Miller or the plaintiff herein.</p> <p>“The court further finds that the money now in the hands of the clerk of this court is money put therein by agreement of parties and order of court, and is subject at all times to the control of the court,' and is not money coming into the hands of the clerk under such conditions as would authorize him to collect,a fee of one per cent, as costs for the benefit of the county, and the clerk of. this court is hereby ordered to pay out said money under the .order of this court without deducting any commission for collecting the same.</p> <p>“It is further ordered and adjudged by the court that the defendants, Martha Miller and Alpha Oil Company, have judgment against the plaintiff for their costs in this cause, taxed at $20.55.</p> <p>“To each, all and every of the abové and foregoing findings of the court the plaintiff, [Wellsville .Oil Company, duly excepted and still excepts. And thereupon in open court the plaintiff, the Wellsville Oil Company, makes application to the court for leave to file a separate super-sedeas bond to supersede the judgment and order of the court directing the distribution and payment of the money in the hands of the -clerk and the Prairie Oil & Gas Company herein, which application for the right to file the supersedeas bond was by the court denied. To which ruling and order of the' court the plaintiff excepted and still excepts.</p> <p>“And thereupon in open court the plaintiff moved the court to stay execution of its order and judgment in this cause for a term and period of three days, to enable the plaintiff to apply to the Supreme Court of the state of Oklahoma for supersedeas bond herein, which application of the plaintiff for a stay of judgment for a term of three days is hereby by the court denied. To which order and ruling of the court the plaintiff excepted and excepts.”</p> <p>Plaintiff in error assigns the following errors:</p> <p>“That on the 8th day of January, 1915, the district court of Rogers county, .Qkla., made and entered a judgment, which is found on pages 117, 118, 119 and 120 of the case-made, which is .made part hereof, marked Exhibit ‘A.’ It complains that the court erred in making an order that the clerk of said court should pay over to the defendants the sum of $12,880, which sum was in the hands of the clerk of said court under a former judgment and stipulation, to be held until the ownership thereof was determined, and says that the court ordered said money paid by the clerk to the defendants before the ownership of said fund had been determined by any trial, or had been put in issue by any pleadings. It further complains that an order was made that $8,445.38 in the hands of the Prairie Oil & Gas Company be paid over to the defendants, when the ownership of said fund was not in issue by any pleading and no trial or determination of the ownership had been had. It further complains that the court adjudged the defendants entitled to possession of certain lands, subject to an oil and gas mining lease made by Martha Miller to the Alpha Oil Company, when the right of possession had not been tried or put in issue, when the ownership of the lease to the Alpha Oil Company, or its validity, had not been tried or put in issue in behalf of the defendants, and when the right of possession had not been tried by a jury and a jury had not been waived.</p> <p>“The court further erred in refusing to permit the plaintiff to supersede said judgment and stay the execution thereof, when the plaintiff offered, in open court, to execute a bond of more than double the amount of the matter in controversy, and offered to execute a bond in the sum of $50,000.</p> <p>“The court further erred in refusing the plaintiff in error’s request to grant it time to apply to the Supreme Court for a stay of the execution of the judgment and for a supersedeas bond.</p> <p>“The court further erred in rendering said entire judgment, because the court had no jurisdiction over the plaintiff in error for said purpose, and no jurisdiction to render its said judgment which was rendered.</p> <p>“Wherefore the plaintiff in error prays that the judgment so rendered be' reversed, set aside, and held for naught, and that all rights which it has lost by the rendition of said judgment may be restored, and for such other relief as to the court may seem just.”</p> <p>Thereafter the defendants in error filed the following motion to dismiss this appeal:</p> <p>“Comes now the defendants in error, Martha, Miller and the Alpha Oil Company, and move the court to dismiss plaintiff in error’s appeal herein and the petition in error filed in this cause for the following reasons, to wit:</p> <p>“(1) That the petition in error and the record of the proceedings in the court below as shown by the case-made attached thereto and filed' herein show that the district court of Rogers county, Okla., had jurisdiction of the parties to the proceedings complained of and the subject-matter, in relation to which the orders complained of and each of them were made.</p> <p>“(2) That the petition in error filed herein and the case-made attached thereto show that the proceedings had in the lower court of which complaint is made in the petition in error herein were taken in the district court of Rogers county, Okla., upon a mandate from this court issued in said cause, remanding the same to the district court of Rogers county, Okla., for further proceedings in conformity, with the mandate and the opinion of this court, handed down in said cause.</p> <p>“(3) Because the case-made filed with the petition in error herein shows that in the proceedings had and taken in the lower court the plaintiff in error herein entered a special appearance, simply for the purpose of objecting to the jurisdiction of the lower court to take any action in said cause or to make any order therein concerning the disposition of the moneys in the hands of the clerk of the district court of Rogers county, Okla., and under the control of said court in said cause. That in the proceedings had in the lower court the plaintiff in error did not ask for any relief at the hands of the lower court, and did not make any application to the court for any relief therein, or for any part of the moneys in the hands of the court, and did not file, or offer to file, any proceedings in. said court concerning said moneys; and were not denied any relief asked for in the lower court.</p> <p>“ (4) Because it is apparent from the petition in error and the case-made attached thereto herein that the lower court had jurisdiction of the parties to said action and of the subject-matter therein, and that every proposition presented by the petition in error has been heretofore settled by this court in the opinion filed in the case of Wellsville Oil Co., Plaintiff in Error, v. Martha Miller, nee Everett, and the Alpha Oil Company, Defendants in Error, being cause No. 3785, in this court [44 Okla. 493], which opinion of the court was filed with the clerk of this court on the 22d day of December, 1914.</p> <p>“(5) Because it is apparent from the petition .in error and the case-made thereto attached that these proceedings are dilatory in their character, and tend to delay the defendants in error in the realization and enforcement of their rights under the former decisions of this court, are vexatious and against the rights of these defendants in error, and should not be entertained by this court.</p> <p>“Wherefore, for the reasons hereinbefore assigned, the defendants in error pray for the dismissal of the petition in error and all further proceedings in this appeal.”</p>

<p> Error From District Court, Alfalfa County; James W. Steen, Judge. </p> <p>Action by John M. Clark against Paul La Brue and, another. Judgment for defendants, and plaintiff brings error. On motion to dismiss appeal.</p>

<p>RAILROADS — Killing of Stock — Direction of Verdict — Evidence. In an action against a railroad company for .negligently killing stock, where the plaintiff’s right of recovery depends upon defendant’s ' negligence, and where there is no evidence tending to prove negligence, and no circumstances from which negligence might be reasonably inferred, it is the duty of the trial court to direct a verdict in favor of the defendant.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>APPEAL AND ERROR — Questions Presented — Motion for New Trial. Where the errors assigned are errors occurring at the trial, and the record does not affirmatively show that a motion for new trial was filed within three days after the “verdict or decision” was rendered, and that such motion was acted upon by the trial court, the appeal,will be dismissed.</p> <p>(Syllabus by Galbraith, O.)</p>

<p> Error from District Court, Tillman County; Frank Mathews, Judge. </p> <p>Action between J. T. Black and J. L. Carpenter. From the judgment, Carpenter brings error.</p>

Error from District Court, Carter County; S. H. Russell, Judge. In the matter of the estate of Rachel Tubbee and others, minors, George Terry, guardian. The guardian filed his final report, and certain items thereof were disallowed by the county court, and, from a judgment of the district court refusing to dismiss the guardian’s appeal, the heirs bring error.

<p>1. APPEAL AND ERROR — Petition in Error — Right to Amend. Within the time allowed for bringing proceedings in error in this court, amendments to a petition in error are generally allowed- as of course.</p> <p>2. SAME. A petition in error may be amended, after the expiration of the time allowed for bringing.proceedings in error, where the amendment is one of form and not of substance; and where certain necessary defendants in error have, within proper time, been brought into this court by summons in error, or waiver thereof in writing, but their names were inadvertently omitted from the petition in error, an amendment, inserting their names, is one of form, and not of substance.</p> <p>3. APPEAL AND ERROR — Infants—Summons in Error — Personal Service on Minor. Where it is sought to bring defendants in error into this court by personal service of summons in error on such parties, the summons must be served in the manner required in the commencement of an action in the trial court.</p> <p>(a) In ease such party is a minor, over the age of 14 years, he may be served personally, in like manner as an adult.</p> <p>(b) If the minor is under 14 years of age, the summons in error must be personally served “on him, and also on his guardian and father,” or if neither of those (guardian or father) can be found, then upon his mother, or the- person in control of- him, or with whom he lives'; if either of such persons can be found, preference being given in the order named. ’</p> <p>4. INFANTS — Summons in Error — Personal Service on Minor. Personal service of a summons in error alone on,-the “guardian,’-’ or “next friend,” of an infant is bad, and fails to give this court jurisdiction of the infant, for the simple, but quite sufficient, reason that it is not authorized by statute.</p> <p>5. APPEAL AND ERROR — Infants—Summons in Error — Service-Waiver. A summons in error, however, may be served on the attorney of record in the lower court, just as effectually and with as much binding force as if served upon the party; and such attorney of record, upon whom it would be legal to serve a summons in error, may, in writing, “waive the issuing and service” of the same; and. as the statute authorizing this method of oh-taining jurisdiction makes no exceptions, it applies to defendants in error, wlio are minors, and irrespective of their age, and with like effect as to adults.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. TROVER AND CONVERSION — Pleading and Proof — Variance-Date of Conversion. An allegation as to the date of conversion in an action of trover is immaterial, and, where the evidence offered and admitted varies from the date alleged in the petition, it is error for the court, on motion of plaintiff, and over objections and exceptions of defendant, to take such evidence from the consideration of the jury.</p> <p>2. SAME — Instruct'ons. Where the petition alleges the date of conversion, and the evidence varies therefrom, it is error for the court to instruct the jury: “If you find the posts or ties of plaintiff were taken and appropriated by defendant, same being the property of plaintiff, yet if you find the same were taken in a different year or at a totally different time from that alleged in plaintiff’s bill of particulars, then, as to such ties or posts, you will find for defendant.”</p> <p>3. NEW TRIAL — Ground—Instruction—Conversion. Where, upon conditions above set forth, the jury return a verdict for the defendant, and the plaintiff files motion for new trial, containing such action of the court as grounds therefor, it is not error to grant the motion.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from District Court, Murray County; R. McMillan, Judge. </p> <p>Action by Harry Keiffer against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by Lura Earl against Beatrice Earl and others. Judgment for defendants, and plaintiff brings error. This action was begun on November 11, 1913, to set aside a judgment of divorce wherein Frank B. Earl, who died before the present action was instituted, obtained a divorce from the plaintiff herein, in the district court of Oklahoma county, in 1895.

<p> Error from County Court, Creek County; Warren H. Brown, Judge. </p> <p>Action by Ed Abraham against T. W. Byrd. Judgment for defendant, and plaintiff brings error.</p>

<p>1. BILLS . AND NOTH® — Evidence—Pleadings and Proof — Contracts — What Law Governs. A promissory note, dated, executed, and delivered at Salem, Ark., and payable in that state, in the absence of other proof, is an Arkansas contract, and is governed by the laws of Arkansas; but, in an action upon 1he same in this stale, where the laws of Arkansas are not pleaded or proven, the presumption is that the laws of Arkansas are the same as the laws of this state.</p> <p>2. PRINCIPAL AND SURETY — Release of Surety — Parties. Under section 4694, Rev. Laws 1910, the payee of a promissory note may, at his option, sue one of the sureties, without joining the maker and the other sureties as parties defendant; and his failure to sue' the maker and other sureties does not operate as a release of the surety sued.</p> <p>3. SAME — FaTure to Sue Prinrinal. The failure of the payee of a promissory note to sue the principal, upon the oral request of the surety sued, made long after the maturity of the note to the attorney of the payee, who had the note for collection, does not operate as a release of the surety sued, even though the principal, at the time the request was made, was solvent and amply able to pay the nate, arci, in the meantime, he and the oth~r sureties thereon became insolvent, it being the duty ci the surety upon the failure of the principal to pay the note wh ~n due, to pay the same and pursue his remedy against the principal and his cosureties.</p> <p>(Syllabus by Dudley, C.)</p>

Error-from District Court, McCurtain County; Summers Hardy, Judge. Action by Lilly Going and others against the Southwestern Surety Insurance Company. Judgment for plaintiffs, and defendant brings error. The defendants in error brought this action against plaintiff in error to recover upon a bond, executed by it, as surety, to secure a judgment in the sum of $1,899.44. A motion was timely filed for a new trial, which was overruled and excepted to.

<p>Error from County Court, Atoka County; Baxter Taylor, Judge.</p> <p>Action by T. M. Dye against the Chicago, Rock Island and Pacific Railway Company.' Judgment for the plaintiff, and defendant brings error.</p>

<p> Error from District Court, Kiowa County; Frank Mathews, Assigned Judge. </p> <p>Action by J. L. Burk against the Hobart Mill & Elevator Company. Judgment for defendant, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Case-Made—Attestation—Seal. Where the certificate of the trial judge to a purported case-made is not attested by the clerk of the court and the seal of the court attached to such attestation, such purported case-made is a nullity ■and presents no question for review.</p> <p>2. APPEAL AND ERROR — Transcript—Form—Seal. Where a purported case-made is attempted also to be certified as a transcript, the certificate of the certifying clerk must be substantially in the form required by rule 16 of this court (38 Okla. viii, 137 Pao. x) and have the seal of the clerk attached to such certificate; and, if the seal of said court be not so attached, such attempted transcript is a nullity and presents no question for review.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Delaware County; John H. Pitchford, Judge. Action by Rolland D. Fluke and others against the Levindale Lead & Zinc Mining Company and others. Judgment for plaintiffs, and defendants bring error. This action was brought by defendants in error, hereinafter called plaintiffs, against plaintiffs in error, hereinafter designated defendants, to remove cloud from title upon the lands described in the petition in said cause.

<p> Error from, District Court, Beckham, County; G. A. Brown, Judge. </p> <p>Action by the Collins-Deitz-Morris Company, a corporation, against the Elk City Mercantile Company, a corporation. Judgment for plaintiff for less than claimed, and it brings error.</p> <p>This appeal is prosecuted from a judgment rendered in favor of plaintiff and against the defendant upon an account for goods and merchandise sold. The cause was referred to a referee to find the facts and make conclusions of law, who found and reported that plaintiff was entitled to recover against the defendant in the sum of $1,440.98, from which should be deducted an. allowance of $1,087.99, which included a counterclaim of $800 upon a contract of lease upon a certain part of a building for one year,' which was not in writing. The execution of such lease and the terms thereof are admitted. The conclusion of the referee that said $800 was a proper offset was duly objected and excepted to by plaintiff, which said exception was overruled by the court, and judgment rendered in favor of plaintiff in the sum of $419.30 and costs, amounting in all to $551.25. Motion for new trial was filed and overruled, to which the plaintiff duly excepted. From the judgment rendered this appeal is prosecuted. No brief has been filed by defendant in error.</p>

Error from Superior Court, Pittsburg County; W. C. Leidtke, Judge. Action brought in a justice’s court by the MeAlester Storage & Commission Company, a partnership composed of E. W. ¡^Schreiner and another, against the Farmers' Produce Company. Judgment for plaintiff on appeal to the superior court, and defendant brings error.

<p> Error from District Court, Jefferson County; Frank M. Bailey, Judge. </p> <p>Action by L. W. Tarkenton against Ira Carpenter. Judgment for plaintiff for less than claimed, and he brings error.</p>

Error from County Court, Rogers County; H. Tom Right, Judge. Action by I. G. Clark against Isaac Cohn. Judgment for the plaintiff in the county court on appeal from a justice of the peace, and defendant brings error.

Error from County Court, Seminole County; T. S. Cobb, Judge. Action brought in justice’s court by William Vigelius, doing business as Havemeyer & Vigelius, against Joseph Marcus and the Farmers’ National Bank of Wewoka, Olda., a corporation, garnishee. Judgment for plaintiff, anc releasing the garnishee, on appeal to the county court, and plaintiff brings error.

Error from Superior Court, Edward Dewes Oldfield, Judge. Action by W. O. Moore against others. Judgment for plaintiff, and defendants bring error. This action was commenced in the defendant in error against H. G. Schuck, A. B. Schuck, Grace M. Schuck, and Anna M. Schuck, as partners, to recover $852.50, alleged to be due by contract.

Error from District Court, Muskogee County; R. P. deGrajfenreid, Judge. Action by the First National Bank of Muskogee against E. L. Halsell and others. Judgment for plaintiff, and the defendant named brings error.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Willie Charles, for the use and benefit of Willie Bradford, against Hector Hillman and others. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Where ■plaintiff in error flies no brief, and assigns no reason for failure to do so, the appeal will be considered as abandoned, and under rule 7 of this court (38 Okla. vi, 137 Pac. ix), is dismissed.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from District Court, Wagoner County; R. P. De Granffenried, Judge. </p> <p>Action by J. E. Hildt against C. C. McDonald. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, R. P. de Graffenried, Judge. Action by. C. J. Gibson as an individual and as administrator, against the St. Louis, Iron Mountain & Southern Railroad Company, a corporation. Judgment for plaintiff, and defendant brings error.

<p>1. APPEAL AND ERROR — Failure to File Brief — Reversal. Where plaintiff in error has completed his record and filed it in this court, .and has served and filed a. brief, in compliance with the rules of this court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain' the assignments of error, the court may reverse the judgment in accordance with the prayer of the plaintiff in error, or the rights of the parties.</p> <p>2. SAME — Duty to File Briefs. Counsel should understand that the work in this court is extremely heavy, and every member of the court is making special effort to get the. work as nearly up to date as possible. They must also know that it takes much more time for a stranger to a case and record to pass upon the facts and settle the questions of law than it does the lawyer who tried the case and is familiar with every branch and detail of it; besides, it is a duty counsel owe to the court, as well as to clients, and they should not attempt to unload their work, nor shift their responsibility upon the court. This court has always been extremely patient and lenient with counsel in all things, and especially in the matter of filing briefs, and there appears to be no reason nor excuse for defendant’s failure to file briefs in this oase,’ especially since the time had been extended and the case held up for 30 days for that express purpose. The court will exercise its discretion under the rule and reverse the case and remand it for new trial.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. EVIDENCE — Parol—Notes—Corporations. A promissory note, the body of which is in the usual, simple form, and signed, “F. U. S. Co., By W. M. D. Direct J. A. Z. Direct R. M. Direct J. W. Me. Direct H. C. C. Direct D. E. A. Pres.” — the first name being that of a corporation, is not necessarily the independent obligation of the -corporation, but is ambiguous in the sense that it was not error to admit parol evidence to show the intention of the parties was to obligate themselves for its payment.</p> <p>2. PLEADING — Reply—Answer. A reply need not be filed when the answer does not really set up new matter, but rather evidential facts in the way of denial to the plaintiff’s petition.</p> <p>3. TRIAL — Reopening, Case — Refusal to Recall Jury — Discretion. A party to a lawsuit, who voluntarily remains away from the trial of his case until the jury has retired and before they return a verdict, cannot complain because the court declines to recall the jury on his appearance for the purpose of permitting him to testify. The court’s action, being discretionary, is never error, unless abused.</p> <p>(Syllabus by Watts, C.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by F. S. Harris against the Washington County Abstract Company, a corporation, and another. . Judgment for plaintiff, and defendant bring error.

<p> Error from County Court, Woods County; W. M. Bickel, Judge. </p> <p>Action by the Farmers’ State Bank, a corporation, against E. R. Clark.- Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Blaine County; James R. Tolbert, Judge. Action by the State against H. D. Nolen and others on a forfeited bail bond. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action between the State ahd David Jones and others. From the judgment, David Jones and others bring error.</p>

<p> Error from County Court, Pottawatomie County; Ross F. Lockridge, Judge. </p> <p>Action by T. D. McCall against the Atchison, Topeka & Santa Fe Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by Jack Rider and others against Lee Helms and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by Bernie Herstein against the Wilkin-Hale Bank, formerly the Night & Day Bank. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Alfalfa County; Jas. W. Steen, Judge. Action by Frank Loeser against C. S. Dunnington, administrator of the estate of Carl Loeser, deceased. Judgment for plaintiff, and defendant brings error. Reversed and remanded for new trial. During the pendency of this appeal the plaintiff in error, Carl Loeser, died, and by proper proceedings the case was revived in the name of his administrator.

<p>1. INFANTS — Sale of Lands — Jurisdiction. The county court, having acquired jurisdiction of the estate of a minor, may order the sale of lands of said minor lying, arid situated in another county in the state (following Dewalt v. Cline, 35 Okla. 197, 128 Pac. ' 121).</p> <p>2. INDIANS — Sale of Allotment — Marriage of Minor. The marriage of á minor Cherokee Indian does not confer upon him the authority to sell his allotted lands independen^ of the supervision of the county courts of the state (following Jefferson v. Winkler, 20 Okla. 653,-128 Pac. 705).</p> <p>3. APPEAL AND ERROR — Finding of Fac&wkey;Age of Grantor-Evidence. Where the paramount issue under the pleadings is the minority of tlie vendor at the time of the execution of a deed,'1 and no competent evidence is offered showing the age of such vendor, and the trial court finds that the defendant wholly failed to prove his minority, this court will not disturb the judgment.</p> <p>(Syllabus by Rittonliouse, G.)</p>

<p> Error from District Court. Osage County; R. H. Hudson, Judge. </p> <p>Action by G. B. OMer against the Barnsdall Oil Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Adair County; ' John H. Pitchford, Judge. In the matter of the estate of Jennie Cochran, deceased. An application by P. J. Dore for restoration of a lost order approving1 a conveyance was filed in the county court and granted, a motion by Nolia B. Dore, executrix, to dismiss an appeal to the district court was overruled, a motion by Eugene Wilkinson to amend was granted, and the executrix brings error.

Error from County Court, Comanche County; S. I. McElhoes, Judge. Action by the First State Bank of Washington, Okla., against Bob Mooney and another, a copartnership doing business as B. & 0. Cash Store. Judgment for plaintiff, and defendants bring error.

Error from District Court, Woods County; B. H. Loofbourrow, Judge.. Action by the Board of County Commissioners of the County of Woods against Claud McCrory and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Scott Braden against the Star Wafer Company, a corporation, and others. A receiver was appointed, and defendant Maurice S. Lanyon brings error.

Error from, District Court, Tulsa County; L. M. Poe, Judge. Action by the I. Friedman Company, a corporation, against A. B. Ham, Receiver for the Merchants’ & Planters’ Insurance Company of Tulsa, Okla., and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by Jeanetta Berryhill against Addie Nero, nee Grayson, and others. Judgment for plaintiff, and defendant Samuel J. Checote brings error.</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by J. A. Goodwin against J. S. Mullen and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from Superior Court, Pittsburg County; W. S. Liedtke, Judge. </p> <p>Action by Alex Anderson against the Dow Coal Company. Judgment for plaintiff, and defendant brings error.</p>

<p>LIENS — Lien Claim on Several Properties — Single Contract. Where a single entire contract is made with a materialman to furnish material for building houses on noncon-tiguous lot?, and no request is made to keep separate accounts of the material which is used in the several houses, one lien claim may be filed against all of the lots and buildings for which the lien claimant has furnished material which has actually gone into the buildings.</p> <p>2. MECHANICS’ LIENS — Lien Statement — Sufficiency. A lien claim which sets out the name of the claimants, the amount claimed, and the terms thereof, the name of the owner, and that the material used was furnished under a contract with such owners, the description of the property, and that the material was furnished on the buildings being erected' on the described land, that the amount shown is due and unpaid, which statement is duly verified, is sufficient.</p> <p>(Syllabus by Devereux, C.)</p>

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by J. B. Taylor against Doub & Co., a corporation. Judgment for plaintiff, and defendant brings; error.</p>

Error from District Court, Cherokee County; John H. Pitchford, Judge. A claim filed by the Cherokee County Publishing Company was allowed by lie Board of Commissioners of Cherokee County, and, a motion to dismiss an appeal by the county to the district court being overruled, the action of the Board being reversed, and the claim being disallowed, the Publishing Company brings error.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. A claim presented by J. Will Baker to the Board of County Commissioners of Okmulgee |county was rejected, a demurrer was sustained on appeal to the district court, and plaintiff brings error.

<p> Error from District Court, Pawnee County; L. M. Poe, Judge. </p> <p>Action by the Minnetonka Oil Company, a corporation, against Cleveland Vitrified Brick Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p> R. McMillan, Judge. </p> <p>Action by H. L. Vaden against the Purcell Compress Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from Superior Court, Pittsburg County; '. W. C. Liedtke, Judge.</p> <p>Action by the Central Fruit & Produce Company against the Farmers’ Produce Company. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Chistel Burton, a minor, by Jesse F. Burton, his guardian, against John Doyle, constable, and another. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Case-Made—Time to Make and Serve — Extension — Order. A purported order of the trial judge, extending the time in which to make and serve a case-made, is without force, where the case-made fails to show affirmatively that such order was made and is .entered of record.</p> <p>(Syllabus by Watts, C.)</p>

Error from Superior Court, Garfield County; Dan B. Duett, Judge. Action by Pat Mclnteer against Barbara A. Henry. Judgment for defendant, and plaintiff brought error, and, dying, the action was revived in the name of J. L. Reger, as administrator of his estate.