Volume 49 — Oklahoma Reports

Error from District Court, Wagoner County; R. P. De Graffenried, Judge. 1 Action by Earl Baker against Otis R. Cureton, with cross-petition by defendant. Judgment for defendant, and plaintiff brings error.

<p> Original Proceeding in Mandamus. </p> <p>Original petition by the State of Oklahoma, on the relation of S. P. Freeling, the Attorney General, for a writ of mandamus against R. H. Erwin, County Treasurer of Pontotoc County.</p>

<p> Error from County Court, Pottawatomie County; Hal Johnson, Judge. </p> <p>Action between R. Wyant and T. C. Beavers. From the judgment, Wyant brings error.</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by J. D. De Bord against the Continental Gin Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Choctaw County; C. E. Dudley, Judge. </p> <p>Action by School District No. 4 of Choctaw County against Ed Linthicum, as Treasurer of Choctaw County. Judgment for plaintiff, and defendant brings error.</p>

<p>TAXATION — Appeal from Board of Equalization — Determination— Stipulations. The assessed valuation of the i>roperty of appellant for the year 1914, for the purposes of taxation, as fixed by the State Board of Equalization, is, by reason of stipulation between the parties, modified, and as so modified, affirmed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Muskogee County; R. P. De Graffenried, Judge. Suit for injunction by Lillie M. Dodson and another against the E. I. Du Pont de Nemours Powder Company. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Oklahoma County; Geo.f W. Clark, Judge. </p> <p>Action by Ben F. Davis against Colin S. Campbell. Judgment for plaintiff, and defendant brings error.</p>

<p>STATES — Suit Against the State — State Banking Board — Mandamus. A suit to mandamus the State Banking Board is a suit against the state.</p> <p>(Syllabus by the Court.)</p>

<p>1. DEEDS — Inadequacy of Consideration — Mental Incapacity— Sufficiency of Evidence. Where, in a suit to set aside a deed on the ground of fraud and mental incapacity to execute it, the evidence discloses that plaintiff had just reached his majority; that he was a Ohoctaw Indian of average intelligence for one of his age and quantum of blood;.that for some time prior thereto he wanted to sell his allotment to keep the money out of the hands of his guardian for fear he would appropriate it to his own use, and to get the money himself and have a good time on it; that before arriving of age he had executed a deed thereto to B. for a recited consideration of $2,500, with the understanding that he was to get $1,100 and a house and lot, and on , the same day executed to him a lease in the name of another as lessee, whereupon B. paid him a small sum of money, and the conveyances were a sham to enable B. to be in a better position to buy the land when plaintiff became of age; that defendant met plaintiff with a deed conveying his allotment prepared for his signature and acknowledgment, and bought the land from him for a consideration of $1,250, which was paid, whereupon, having signed, he acknowledged the deed after the nature and effect of the transaction had been explained to him by the notary; that, on the same day, in the presence of a field clerk with the Interior Department, defendant offered to rescind the transaction and return the deed if plaintiff was dissatisfied therewith and would return the purchase money, which he refused to do after the nature and effect of the transaction had been explained to him by the field clerk, and that plaintiff knew nothing of the values of land or other property — held that the evidence did not reasonably tend to show mental incapacity on the part of the plaintiff sufficient to set aside the deed. Held, further, in the absence of fraud, or undue influence, that inadequacy of consideration was not sufficient for that purpose.</p> <p>2. DEEDS — Execution—Test of Mental Capacity. The test of capacity to make a deed is that' the grantor shall have the ability to understand the nature and effect of the act in which he is engaged and the business he is transacting. To invalidate a deed it must appear that the grantor was incapable of comprehending-that the effect of the deed, when made, executed, and delivered, would be to divest him of the title to the land set forth in the deed.</p> <p>(Syllabus by the 'Court.)</p>

<p>In the mater of the disbarment of C. B. Warren, Esq. The report of the referee confirmed, and respondent, disbarred.</p>

<p> Error from, District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Mandamus by M. Cornelius, as County Clerk of Oklahoma County, against Clifton Ratliff, Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Dismissal—Case-Made. A proceeding in error, brought to this court on a case made, where it does not appear, from the record or otherwise, that defendant in error was present either personally or by counsel at the settlement, or .that notice of the time thereof was served or waived, or that amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.</p> <p>2. APPEAL AND ERROR — Case-Made—Signing and Settling— Notice. A notice to defendant in error that the ease-made would be signed and settled on September 30th at 2 o’clock p. m., “or as soon thereafter as counsel can be heard,” is not sufficient to confer authority on the trial judge to sign and settle the case on a day subsequent thereto, in the absence of defendant in error.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. J., and Brown, J., dissenting.</p>

<p>APPEAL AND ERROR — Frivolous Appeal — Dismissal. Where an appeal is manifestly and palpably frivolous, it will be dismissed in this court upon proper motion filed and showing made to the court.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by Edmond Chouteau and others against Addie Chouteau and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Greer County; G. A. Brown, Judge. Action by W. H. Oglesby against Mrs. Bama De-Arman, administratrix of the estate of E. J. De Arman, deceased, and others. From the judgment for plaintiff, the defendant named brings error.

<p>1. APPEAL AND ERROR — Presentation for Review — Motions, Rulings and Exceptions. Motions presented in the trial court, the rulings thereon, and exceptions thereto are not properly a part of the record, and can only be presented and preserved for review on appeal to the Supreme Court by incorporating the same in a bill of exceptions or case-made.</p> <p>2. -SAME — Petition in Error — Time for Filing. The Supreme Court cannot consider the question whether a district court erred in sustaining a demurrer to an amended petition, when the petition in error is filed in the appellate court more than six months after the ruling of the trial court was made.</p> <p>3. PLEADING — Sustaining of Demurrer — Waiver of Error. When a demurrer is sustained to a pleading, and the pleader thereupon takes leave to amend, he thereby waives the error, if any has been 'committed, in sustaining such demurrer.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by Ben Williams and others against the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Stephens County; Frank M. Bailey, Judge. Action by T. M. Beckett against J. R. Greenless and another, copartners doing business as Greenless Brothers. Judgment for plaintiff, and defendants bring error.

<p> Error from County Court, Harper County; J. L. Griffitts, Special Judge. </p> <p>Action by M. Shadad against G. B. Hicks. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Presentation for Review — ’Recital in Case-Made — Denial of New Trial. A motion to dismiss an appeal, on tbe ground tbe case-made does not show any final order of tbe trial court overruling plaintiff in error’s motion for a new trial, will be denied, where tbe case-made contains a copy of tbe original judgment of tbe court and a copy of tbe motion for new trial, and . a recital that tbe motion was overruled by tbe court and the action of the court excepted to. Such recital in the case-made is a sufficient compliance with section 5241, Rev. Laws 1910.</p> <p>2. SAME — Recital in Case-Made — Extension of Time. A recital in tbe case-made that upon tbe overruling, of tbe defendant’s motion ■ .. for- new trial be excepted to tbe court’s action and gave notice of appeal, and was allowed 60 days to make a case-made, and 10 days for the suggestion of amendments thereto, and 5 days to sign and settle, is a sufficient showing of an extension of time by the court to make and serve, sign, and settle the case-made.</p> <p>S. SAME — Malting and Serving — Extension of Time — Order. But where an order is made by the judge in chambers extending the time to make and serve the case-made, such order is required by the statute to be entered in the minul es of the court, and it should be copied into the case-made.</p> <p>(Syllabus by the Court.)</p>

<p>1. MAJORITY VERDICT. Section 19, art. 2, of the Constitution, provides that, in all civil cases and criminal cases less than felony, three-fourths of the whole number of jurors concurring shall have power to render a verdict, and requires that when a verdict is rendered by less than the whole number of -jurors the verdict shall be in writing and signed by each juror concurring therein.</p> <p>2. TRIAL — Majority Verdict — Irregularity—Waiver. Where a majority verdict is returned by less than the whole number of jurors, and their verdict read in open court by the clerk, and the jurors concurring therein, in answer .to questions by the court say that same is their verdict and was signed by them, and no objection is made that the name of one of the jurors was signed by mark and that the person signing the name of said juror did not sign his name thereto as a witness, the irregularity in the signature is waived.</p> <p>3. MOTIONS — Order—Effect. An order in probate made by the United States court in the Indian Territory upon final report of a guardian in a guardianship matter that the minor, who was a Cherokee freedman, was of a certain age at the date of the order, is not competent evidence in an action between grantees of said minor to establish the age of said minor at the date of the different instruments relied upon by the parties to the ejectment suit.</p> <p>4. EVIDENCE — Competency—Age of Person. A person is a competent witness to testify as to his own ag9 and the date of his birth, even though his parents be living and within the jurisdic-■tioni of the court.</p> <p>5. APPEAL AND ERROR — Ground for Reversal — Admission of Evidence. The admission of incompetent evidence, tending to prove a material issue in the case, that appears to have prejudiced the rights of the party objecting thereto, is reversible error.</p> <p>ON PETITION FOR REHEARING.</p> <p>6. APPEAL AND ERROR — Petition for Rehearing — Assignment—' Notice. Under Rule 9 (38 Pac. vi, 137 Pac. ix), a case may b§ < considered on petition' for' rehearing and the former opinion re- , versed without assigning. said petition for hearing and 'without notice by the clerk to the parties to said cause. It is only when a rehearing is granted that this is required.</p> <p>7. CHAMPERTY AND MAINTENANCE — Date of Champertous Deed — Adverse Possession — Pleading and Proof. When the pleadings fail to allege, and the evidence fails to show, that at the date of a deed claimed to be champeitous the party making such claim, or his grantors, were in the adverse possession of the premises described therein, such claim cannot be sustained.</p> <p>8. TRIAD — Presentation of Question Below — Exception—Evidence. Where, in the absence of the jury, objection to the admission of certain evidence was overruled, and the court stated that-an exception would be allowed, and thereafter the jury were returned into court and the evidence introduced without further objection or exception to the ruling of the court thereon, this will be sufficient to preserve such objection.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Carter County; S. H. Russell, Judge. Proceedings by Emily Wilson and another to contest the will of Mingo Impunnubbee, deceased, John C. Gillard executor. A judgment of the County court revoking probate of the will was reversed on appeal to the district court, and contestants bring error.

<p> Error from District Court, Washita County; James R. Tolbert, Judge. </p> <p>Action by John D. Harris and another against the Insurance Company of the State of Pennsylvania, a corporation. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Muskogee County; R. P. deGraffenreid, Judge. </p> <p>Action by the Great Bend Oil Company against W. A. Jarvis and others. Judgment for plaintiff, and defendant Jarvis brings error.</p>

<p>Error from County Court, Wagoner County.></p> <p>Action by James Miller against W. H. R. Markley. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Jefferson County; Frank M, Bailey, Judge. </p> <p>Action by Wm. Cameron & Co. against S. K. Montgomery and others. Judgment for plaintiff, and defendants bring error.</p>

.Error from District Court, Oklahoma County; John W. Hayson, Judge. Action .by P. J. Nicholson and another against M. C. Binion, Sheriff of Oklahoma County, Okla., and others. Judgment for defendants, plaintiffs bring error, and defendants move to dismiss.

Error from District Court, Logan County; A. H. Huston, Judge. Action by the National Surety Company, a corporation, against the State Banking Board of the State of Oklahoma and others. Judgment for defendants, and plaintiff brings error.

<p>1. TRIAL — Demurrer to Evidence. Where the evidence is conflicting, and a demurrer is interposed thereto, all the facts and inferences in conflict with the evidence against which the action is to be taken must be considered untrue, or withdrawn and eliminated from consideration, leaving only that which is most favorable to the party against whom the demurrer is directed, and ,if upon consideration thereof there appears to be sufficient evidence to support a verdict in favor of the party offering the evidence, the demurrer should be overruled.</p> <p>2. LANDLORD AND TENANT — Attornment of Tenant — Effect. The attornment of a tenant to a stranger is void, and does not affect the possession of the landlord, unless it be made with his consent, or pursuant to a judgment at law or t,he order or decree of a court.</p> <p>3. r EJECTMENT — Judgment—Effect—Indian Lands. A judgment in an ejectment suit involving the possession of Indian la'nds, rendered prior to the issuance of a patent therefor, cannot affect the rights of the patentee to the lands therein described, so long as such patent is outstanding.</p> <p>4. PUBLIC LANDS — Rights of Patentee. One who holds title to the allotted lands under a patent regularly issued therefor does not stand in privity of estate with any prior claimants thereto, but receives his title direct through the medium of the patent.</p> <p>5. EJECTMENT — Evidence of Title — Exclusion. Where, in an action for rent, the plaintiff alleges title in himself, and the defendant denies plaintiff’s title, and alleges title and possession in another by virtue of a writ of execution based upon a judgment between parties who do not stand in privity of estate with plaintiff or defendant, and plaintiff offers to prove that-the title of the plaintiff in the writ of execution has been canceled subsequent to the date of the judgment upon which such writ was issued, it was error to exclude such evidence.</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Case-Made—Time for Making and Serving — Order of Extension — Review of Finding. An order of extension made under tbe provisions of section 5246, Bev. Laws 1910, wbicb 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, will not be reviewed on motion to dismiss.</p> <p>2. SAME. Section 5236, Bev. Laws 1910, enumerates the classes of orders and judgments which may be reviewed in this court on petition in error, and an order, granting an extension of time to make and serve a case-made under the provisions of section 5246, is not such an order as may be reviewed under the authority of said section.</p> <p>3. APPEAL AND ERROR — Cross-Petition in Error — Dismissal. A cross-petition in error which fails to assign as error any action of the trial court that may be reviewed in this court will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>Original mandamus by the State, on the relation of S. P. Freeling, Attorney General, against H. Tom Kight, County Judge of Rogers County, Okla.</p>

Error from District Court, Logan County; A. H. Huston, Judge. Action by E. G. Sharp against the City of Guthrie and others. Judgment for defendants, and plaintiff bring error. On rehearing.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by Arthur A. Vickers against the Philip Carey Company. From an order setting aside a verdict and granting defendant a new trial, plaintiff brings error.

<p>1. ALTERATION OF INSTRUMENTS1 — Note—Instruction—Burden of Proof. Where upon trial tbe bolder admits that be materially altered a promissory note after delivery, it is not error for tbe trial court to instruct the jury that tbe burden of proof . is upon him to show by a fair preponderance of the evidence that tbe alteration was made by and with tbe consent of tbe maker.</p> <p>2. ' ALTERATION OF INSTRUMENTS — Effect. A chattel mortgage showed upon its face that it was executed “to secure to James I. West, mortgagee, * * * tbe payment of tbe obligation hereinafter set forth, as follows, to wit: One note for $400, dated 1/10/1912, payable 7/10/1912.” Held, that tbe indebtedness is represented by tbe note, which constitutes tbe primary contract, and not by tbe mortgage, which is merely collateral to tbe note. Held,, further, that tbe bolder of such a note, after materially altering, and thereby avoiding it, is not entitled, in an action in replevin, to seize and sell tbe property-described in the mortgage for tbe purpose of applying tbe proceeds thereof upon tbe original debt.</p> <p>(Syllabus by tbe Court.)</p>

<p>.APPEAL AND ERROR — Parties—Revivor—Dismissal. Where the prevailing party dies while the cause is still pending in the trial court, and thereafter the losing party seeks to prosecute a' proceeding in error to the Supreme Court without having the cause revived in the trial ■ court, the petition in error filed in said proceeding is a nullity for want of a party defendant in error.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Woodward County; James W. Steen. Judae. </p> <p>Action by the Board of County Commissioners of Woodward County against B. F. Willett. Judgment for defendant, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Frivolous Appeal — Dismissal. Where it appears from the record that an appeal is frivolous and without merit, same will be dismissed.</p> <p>(Syllabus by the Court.)</p>

<p>1. DESCENT' AND DISTRIBUTION — Maimer of Distribution— “Children.’' The term “children” of any deceased brother or sister, as used in the third subdivision of section 8418, Rev. Laws 1910, has reference to the sons and daughters of such brother or sister, and does not include grandsons or granddaughters or other remote descendants.</p> <p>2. DESCENT AND DISTRIBUTION — Maimer of Distribution. Where deceased at the time of her death left no husband, no issue, no father nor mother, and no brothers or sisters, hut left as lier sole kindred the son of a deceased brother, and various grandchildren of said brother, the son of said brother takes the whole estate to the exclusion of said grandchildren.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Pairfcies—Dismissal. All persons against whom a joint judgment has been rendered must be made parties ■to a proceeding in error to reverse such judgment, and a failure to join any of them, either as plaintiffs or defendants, is ground for the dismissal of the cause.</p> <p>(Syllabus by the Court.)</p>

<p> Er¥or from District Court, Haskell County; W. H. Brown, Judge. </p> <p>Action by E. D. Means against George Bledsoe. Judgment for plaintiff, and defendant brings error.</p>

<p>1. CORPORATIONS — Officers and Agents — Term of Employment— Field Manager of Corporation. Where, in an action to recover seven months’ salary alleged to be due and unpaid, the court held the hiring to be for a year by virtue of section 1, art. 4, of the by-laws, which, after providing for the executive officers of the company of which the president and field manager was ' one, directed' that a field manager be elected each year, held, that plaintiff, elected field manager pursuant thereto, was not an officer with a term, but an employee without a term, and held his agency at the pleasure of defendant, and that, too, although at the time he was so elected, by proper resolution, his salary as field manager was fixed at $256 per month. Held, further, that holding his agency as he did, at the pleasure of defendant, he could be discharged at any time with or without cause.</p> <p>3. CORPORATIONS — Discharge of Employee — Field Manager. Where during the time a field manager was holding his agency at the pleasure of defendant, its board of directors, by motion duly carried, declared the office vacant and appointed a new executive board, of which he was not one, to look after the company’s business, which it thereafter did, held, that, the same operated to discharge him as field manager.</p> <p>•3. CORPORATIONS — Officer and Manager of Corpoiration — Secret Profits. Where plaintiff, while president and acting as field manager of defendant,' bought a block of its stock for $250 and turned it in to defendant for $2,850 and secured credit on his account against defendant for that amount by representing to defendant that he had paid that much therefor, held, that the defendant, on its cross-petition, was entitled to recover from plaintiff the difference between the amount paid and the amount received, or $2,600; and this for the reason that while acting as such he stands in a fiduciary relation to defendant and will not be permitted to make a secret profit out of the transaction.</p> <p>(Syllabus by the Court.)</p>

<p>CONTRACTS — Bréach—Unenforceable Contract. Plaintiff sued defendant railway company, seeking a recovery of damages in the sum of $1,000,000, for the alleged breach of a purported contract, ' the material parts of which are as follows:</p> <p>“That the party of the first part shall at his discretion, subject to approval as hereinafter provided, obtain, by purchase or otherwise, sites for towns and depots along the lines of the railroads owned, leased, or controlled, or to be hereafter owned, leased, or controlled, by the party of the second part, and shall locate and lay out such town sites, and all lands so obtained not conveyed to the party of the second part as hereinafter provided shall be sold from time to time at the discretion of the party of the first part, his heirs and assigns, on the best possible terms. * * * No land shall be purchased by the party of the first part without the consent in writing of the president of the party of the second part. For each town site a separate account shall be opened, and when the original cost of land purchased in said town site shall have been received by the party of the first part from the proceeds of sales of lands or otherwise, the net proceeds of all subsequent sales are to be equally divided between the parties of the first and second part. In making up accounts, nothing shall be charged by the party of the first part for interest or general expenses of any kind.”</p> <p>Held, that said purported contract is too indefinite and uncertain, as applied- to the subject-matter, to constitute an enforceable contract authorizing the recovery of damages for an alleged breach thereof.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by Sarah E. Motsenbocker and others against the Shawnee Gas & Electric Company and the City of Shawnee. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Canadian County; John J. Carney, Judge. Action by Myrtle Brown by L. H. Brown, her guardian, against the Modem Woodmen of America, a corporation, and others, wherein defendant Lois Peaden appeared by guardian and filed a cross-action. Judgment for plaintiff against the Order of Woodmen, and against Lois Peaden on her cross-action, and Lois Peaden brings error.

Error from District Court, Garvin County; R. McMillan, Judge. Actijon by Ellen Cook and another against F. H. Childs, guardian of Newton Nelson Childs, and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from District Court, McCurtain County; Summers Hardy, Judge. </p> <p>Action by B. F. Martin against Bank of Haworth and others. Judgment for plaintiff, and- defendants bring error.</p>

<p> Error from District Court, Ottawa County; Preston S. Davis, Judge. </p> <p>Action by Maude Welch, a • minor, by her guardian, John A. Daniels, against Helen Welch, defendant. From the judgment, Helen Welch brings error.</p>

<p>Error from County Court, Lincoln County; H. M. Jarrett, Judge.</p> <p>Action by W. E. Shafer against First National Bank of Wellston, a corporation. ' Judgment for plaintiff. Defendant brings error.</p>

<p> Error from County Court, Lincoln County; H. M. Jarrett, Judge. </p> <p>Action by Mrs. Nancy R. MeCamey against the First National Bank of 'Wellston, a corporation.</p>

<p>APPEAL AND ERROR — Supersedeas Bond — Liability of Sureties. Under chapter 249, Sess. Laws 1915, providing that where a supersedeas bond is executed and filed to stay execution pending appeal, in the event judgment on appeal is against appellant judgment shall at the same time be entered against the sureties on the supersedeas bond, on motion by appellee judgment will be rendered against the sureties as prayed.</p> <p>(Syllabus by the Court.)</p>

<p>1. MEASURE OF DAMAGES — Statute. By section 2872, Rev. Laws 1910. tbe measure of damages for the breach of an obligation not arising from contract is the amount which will compensate the party injured for all detriment proximaitely caused thereby, whether it 'could have been anticipated or not.</p> <p>2. DAMAGES — Earnings—Evidence of Profits — Personal Exertions. In an action for personal injuries by a passenger against a carrier the trial court, for the purpose of establishing loss of earnings, permitted the plaintiff to testify that up to the time of the injury and for several years prior thereto he had been engaged in the business of buying and selling oil and gas leases; that whilst the business required a small investment of capital, its success mainly depended upon the personal efforts, skill, and labor of the person engaged therein; .that his system for carrying on his business was to find 'clients or customers with whom he contracted at ap agreed price for the sale and purchase of oil and gas leases of lands situated in localities where said minerals were presumed to exist, and them go into that field and procure such leases at the lowest ■price possible, his profits or earnings consisting of the difference between the cost and expenses of procuring such leases and their selling price. He was also permitted to testify that whilst his profits or earnings were subject to a great many contingencies, he usually made out of his business $5,000 or $6,000 per year, and for the 12 months immediately preceding his injury his profits or earnings averaged $500 per month. Held, not error. Held, further, that in a case involving the investment of a small capital as a mere incident or vehicle to the performance of services, almost, if not quite, purely personal in their nature, loss of earning-power as an element of damages is permissible, and that the proof to establish such damages need not be entirely clear and indubitable in order .to entitle it to gd to the jury.</p> <p>3. TRIAL — Instructions—Cure of Error! ' The giving of an instruction which charges the jury im effect that -the presumption of negligence which arises from the happening of an accident may be rebutted “by the defendant showing to your satisfaction,” etc., is not reversible error where it is also stated in the same instruction “that in order to rebut such presumption, no particular degree of proof is required, hut it is sufficient if such presumption be met by evidence of equal or greater weight.”</p> <p>4. CARRIERS — Carriage of Passenger — Presumptions. Where the trial court in an instruction correctly states the doctrine of res ipsa loquitur, it is not error to further instruct the jury, in effect, that proof that the accident occurred from some unaccountable cause is not sufficient to overcome -the presumption of negligence on the part of the carrier which arises when the fact that an accident occurred is established.</p> <p>5. DAMAGES — Personal Injuries — Measure. Instructions Nos. 10 and 11 examined, and held, that in so far as they go, they state ■the true rule as to plaintiff’s measure of damages.</p> <p>6. TRIAL — Instructions—Requests. Where the trial court has given general instructions applicable to the issues and the evidence, the judgment will not be reversed for failure to instruct upon any • particular phase or issue, unless request is made at the trial for , such instruction. ...</p> <p>'7. DAMAGES — Personal Injuries — Measure., Record examined, and ‘ held that the verdict of the jury , is, not excessive.</p> <p>(Syllabus by the Court.)</p>

<p> Original Application for Mandamus. </p> <p>Original application by the State, on the relation of J. Warren Davis, executor of the last will and testament of Harriett Nichols Cook, for a writ of mandamus against Robert Wheeler.</p>

<p>1. APPEAL AND ERROR — Right of Appeal — Existence. The right of appeal exists only where expressly given by constitutional or legislative enactment, and cannot be extended to cases which do not come within' the statute.</p> <p>2. SCHOOLS AND SCHOOL DISTRICTS — Creation of Consolidated School District — Right of Appeal. There is no constitutional provision or legislative enactment which provides for an appeal, either from the action of the county superintendent of public instruction to the board of county commissioners, or from the board of county commissioners to the district court, for the purpose of reviewing the action of the people themselves and the county superintendent in creating a consolidated school district, pursuant to section 1, art. 7, c. 219, Session Laws-1913.</p> <p>(Syllabus by the Court. 1</p>

<p>1. APPEAL AND ERROR — Master and Servant — Harmless Error-Instructions — Injury to Servant — Existence of Relationship— Question for Jury. Record examined, and held: (1) That the evidence adduced at the trial was sufficient to raise a question for the-jury as to whether the relation of master and servant existed be.-tween the plaintiff and defendant; (2) that the instructions given, by the trial court state the propositions -of law necessary to submit to the jury with substantial fullness and accuracy; (3) that the-statements of counsel objected to are unobjectionable; '(4) after an examination of the entire record, it does not appear that the-errors complained -of have probably resulted in a miscarriage of justice, or constitute a substantial violation of a constitutional or-statutory right.</p> <p>2. APPEAL AND ERROR — Harmless Error — Statement of Counsel. Section 6005, Rev. Laws Okla. 1910, provides: “No> judgment shall be set aside or new'trial granted by’ any appellate court of this, state in any case, civil or criminal, on the ground of misdirection of the jury, or the1 improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”</p> <p>(Syllabus b.v the Court.)</p>

Error from County Court, Kiowa County; J. W. Mansell, Judge. Action by Jennie D. Wilson against the First National Bank of Mountain V ew and others. Judgment for plaintiff, and the defendant named brings error.

<p>1. APPEAL AND ERROR — Dismissal—Want of Necessary Parties. Where an appeal is prosecuted by certain defendants from an order overruling and denying a motion to vacate and set aside a journal entry of judgment which purported to adjudicate the issues joined by the answers of said defendants m favor of the plaintiff, but it is established that no trial in fact, was had, and the purported decree is therefore without legal force and effect, such appeal will not be dismissed on the ground that all the parties to the aietion in the trial court are not made parties to the appeal; it not appearing, other than by the journal entry, that the omitted parties have or claim any interest in the subject-matter of the suit, but that they were made parties by the plaintiff only for the purpose of setting up any right, title, or interest which they, or either of them, might have in and to the property, the subject of the suit.</p> <p>2. JUDGMENT — Rendition—Issues Undisposed of. The purported judgment being a nullity, the rights of all parties to it remain unaffected by it, when once the invalidity in toto is determined.</p> <p>3. PLEADING — “Issues.” Issues arise on the pleadings, where a fact or conclusion of .law is maintained by one party and controverted by the other. Such issues are of two kinds: (1) Of law; and (2) of fact. Issues, either of law or fact, are determined by a trial by the authority, in the maimer and according to the forms and usages, of law.</p> <p>4. JUDGMENT — Rendition—Ground for Reversal — Refusal to Set Aside Judgment. A judgment attempted to be rendered in behalf of a party without a trial, whereby the substantial rights of par- ■ ties to a suit are adversely determined, at a time when the issues are not made up, and when there are on file the answers of those so adversely determined, in which material issue of fact are joined with such .party, should be vacated and set aside on motion of those so affected, when filed in the same proceedings immediately after notice of such purported judgment is obtained; and to refuse so to do constitutes reversible error. Both the signing of such de cree and the subsequent denial of trelief therefrom present error of the most flagrant type.</p> <p>5. APPEAL AND ERRDR — Record—Verity. The record filed for the purpose of appeal imports absolute verity. It is the sole, conclusive, and unimpeachable evidence of the proceedings in the trial court. If incomplete or incorrect, amendment or correction must be sought by proper proceedings.</p> <p>(Syllabus by the Court.)</p>

<p>• FRAUDULENT CONVEYANCES — Bulk Sales — Operation of Statute-Fixtures. Section 2908, Rev. Laws 1910, affelcting sales or transfers of a stock of goods, wares, and merchandise or portions there- ' of, applies to those articles usually kept for sale in the ordinary course of business, and does not include fixtures.</p> <p>(Syllabus bv the Court. 1</p>

<p> Error from District Court, Creek County: Wade S. Stanfield, Judge. </p> <p>Action between the United States Fidelity & Guaranty Company and the Fidelity Trust Company and others. From an order denying an application to set aside a purported decree, and from a judgment sustaining demurrers of the Fidelity Trust Company and others to intervening petition of the United States Fidelity & Guaranty Company, the latter brings error.</p>

<p>1. APPEAL AND ERROR — Case-Made—Filing of Certified Copy— Bight. A proceeding in error filed in this court, wherein it is sought to review a judgment of a lower court rendered since the adoption of Revised Laws 1910, on May 16. 1913, prosecuted by case-made, and not by a transcript of the record, can only be brought by filing with the petition in enror the original case-made filed in the court below, and not by filing a certified copy 1 hereof, as was formerly permissible under section 6074, Comp. Laws 1909.</p> <p>2. SAME — Presentation for Review — Filing of Original Case-Made— Dismissal. As provided in section 5240, Rev. Laws 1910, “in all actions hereafter instituted by petition in enror in the Supreme * * * Court, the plaintiff in error shall attach to and file with the petition in error the original case-made, filed in the court below, or a certified transcript of the orecord of said court.” Where this is not done within the time fixed by statute, this court is without jurisdiction to review the judgment complained of.</p> <p>•3. SAME — Case-Made—Correction of Error. A plaintiff in error who seeks the reversal of a judgment rendered since the going into effect of the Revised Laws of 1910, on May 16, 1913, but who attache's to the petition in error a certified copy, instead of the original ease-made, as provided for in section 5240, Rev. Laws 1810, cannot, more than two years from the rendition of such judgment, amend by substituting in this court the original for the certified copy of the case. Nor does the fact that counsel for defendants in error have consented that the same may be done affect the rule. Jurisdiction cannot be thus conferred.</p> <p>(Syllabus by the Court.)</p>

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

<p>1. APPEAL AND ERROR — Summons in Error — Waiver of Service —Appearance. Where, within six months from the date of petition in error being filed in the Supreme Court, defendants in error appear by their attorneys of record and oppose an application for a receiver, and afterwards, to avoid the appointment of such receiver, execute and file in said proceedings a bond ,to plaintiff in error, such acts constitute a general appearance in this court, and motion to dismiss for failure to have issued and served summons in error will be overruled.</p> <p>2. WILLS — Testamentary Trust — Vesting of Title. H. died, leaving certain heirs and disposing of his property by will, wherein a trustee was named, to whom the real and personal property was conveyed, with directions to manage and control same until the youngest child should become of age, and to receive the rents aud profits therefrom, and to apply thp net income to the use and benefit, of his 'wife and certain children, and upon the youngest child becoming of age to convey in fee the real estate in certain proportions to the living beneficiaries therein named, and making provision for the disposition of his personal property. Held, that the will created a valid active trust, and that the title to the property passed to the trustee, and not to the beneficiairies.</p> <p>3. TRUSTS — Active Trust — Termination—Agreement by Cestui Que Trust. Where an active valid trust was created by will, and three of the ecstuis que trust are minors, and where the purposes of the trust are not impossible of fulfillment and are not fully accomplished, the cestuis que trust cannot, bv agreement, termi nate the trust, and thereby take title and possession of the property, prior to the time fixed by the terms of the will.</p> <p>4. TRUSTS — Right to Enforce Execution. Any person having any interest in the trust or the trust property has a right to insist, in proper proceeding, that the trust shall be maintained and executed according to the wishes of the settlor, as expressed by the terms of the trust.</p> <p>5. TRUSTS — Want of Trustee — Appointment to Fill Vacancy. Equity will not permit a trust to fail for want of a trustee, and where the trust is not of such a nature that the performance of the • duties thereof was confined to the testamentary trustee because of the peculiar and personal confidence reposed in him by the testator, but it axrpears that the main intention of the testator was that his estate should be administered according to the terms of the trust as created in his will, and that the duties thereof can be performed by a trustee other than the person named in the will, should a vacancy occur, the court may and should appoint a suitable parson for that purpose.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Canadian County; John J. Carney, Judge. Action by Y. D. Tinklepaugh and others against the Board of'County Commissioners of Canadian County and others. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Murray County; R. McMillan, Judge. - Action by T. A. Sterritt against Virgil R. Coss and others. Judgment for plaintiff, and defendants, except defendant Zora Daniel, bring error. . This is an appeal attempted to be prosecuted by plaintiffs in error from a . joint judgment rendered against Zora Daniel and others, to recover certain lands described in the petition, and to remove cloud from title thereto.

<p> Error from County Court, Atoka County; W. S. Farmer, Special Judge. </p> <p>Action by Ben Byers against W. B. Sharp. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, McClain County; W. M. Bowles, Assigned Judge. Action in the nature of quo warranto by Frank Far-riss against Mark Eeader. Judgment for plaintiff, and defendant brings error.

Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by the Fidelity Trust Company of Kansas City, Mo., as trustee, against the Sapulpa & Interurban Railway Company and others. From judgment denying defendant S. E. Carter the relief asked for in his answer and cross-petition, he brings error.

<p>1. PUBLIC LANDS — Issuance of Final Certificate — Title of Entry-man. A certificate of final payment from the register of the government land office vests the entryman with complete equitable title to the land therein described, voidable by the Land Depart rnen-t only for fraud or error at any time before a patent issues thereupon.</p> <p>2. PUBLIC LANDS — Contract of Sale — Construction—Remedy of Purchaser. Where A., the owner of such certificate, evidencing the equitable title to 160 aares of land in C. county, agrees in writing with B., the owner in fee of a tract of land in P. county, to trade land with him, A. to assume a mortgage of $2,300 on B.’s land, conditioned (hat B. is satisfied with the land in C. county, and providing that if the deed to that land is not good and the final proof of A. is not passed on favorably by the government, he will relinquish on said land in favor of B., and where B. thereafter inspects and is satisfied to trade and they subsequently agree in writing that A. is not only to assume said mortgage, but to pay B. $1,000 in cash and make other deferred payments, and that all papers are to be left in escrow until such time as A. shall make a deed to his-land in C. county to B., held, that the two instruments in writing were one contract, and should be construed together, and held by the court to mean that in the event A.’s final proof was not passed on favorably by the government B.’s sole remedy was to file on the land.</p> <p>3. CONTRACTS — Construction — Separate Instruments. Although not executed at the same time, where two written instruments refer to the same subject-matter and on their face show that each was executed as a means of carrying out the Intent of the other, both should be construed as one contract.</p> <p>(Sylktbus by the Court.)</p>

<p> Error from' District Court, McClain County; W. M. Bowles, Assigned Judge. </p> <p>Action by Frank Farriss against Mark Reader. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from. District Court, Stephens County; Frank M. Bailey, Judge. </p> <p>Action by Henry Frey against E. McCune and another. Judgment for defendants, and plaintiffs brings error.</p>

Error from District Court, Oklahoma County; G. W. Clark, Judge. Action by the Dubuque Fire & Marine Insurance Company against Anne E. McCredie and another. Judgment for plaintiff, and defendants bring error, and plaintiff moves to dismiss.

<p>1. EXECUTORS AND ADMINISTRATORS — Death of Administrator-Proceedings in Error. A proceeding in error, against an administrator, who died subsequent to' the date final judgment was rendered in the trial court, and prior to the filing of such' proceeding in error in this court, should be revived in the name of the administrator de bonis non.</p> <p>2. APPEAL AND ERROR — Dismissal—Death of Party — Revivor. Proceedings in error will be dismissed where, • at the expiration of the statutory period for the institution of proceedings in error, it appears from the record that, intermediate the final judgment and the filing of proceedings in error in this court, the sole plaintiff, in the judgment sought to be reviewed, died, and no order of revivor appears in the record.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>Action by R. B. Thompson against the Pioneer Hardwood Company. Judgment for plaintiff, and defendant brings error.</p>

<p> 'Error from Superior Couurt, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Trump Barnett against David A. Lee and others. Judgment for plaintiff, and defendants Miller bring error.</p>

<p>APPEAL AND ERROR — Brief—Dismissal. Dismissed for failure to comply with rule 25 (38 Okla. x, 137 Pac. xi), of the Supreme Court.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Finding of Fact — Evidence. Wliere the trial court finds upon conflicting evidence that the plaintiff has not established his cause of action upon the theory upon which it ' was commenced, and there is evidence reasonably supporting such finding, the judgment of the trial court in favor of the defendant will not be disturbed.</p> <p>(Syllabus by the Court.)</p>

Error from County Court, Wagoner County; ■ W. T. Hunt, Judge. Replevin by the Coweta Hardware Company, a corporation, against Dan Ford and others. • Judgment for plaintiff, and defendants bring error.

<p>Original action for writ of prohibition by the State; on the relation of Foster N. Burns, against Conn Linn, District Judge.</p>

<p> Error from District Court, McClain County; R. McMillan, Judge. </p> <p>Action by Mollie Stalcup, nee Everidge, against J. S. Mullen and others. Judgment for defendants, and plaintiff brings error.</p>

<p>REPLEVIN — Demand—Costs. 1 Want of prior demand will not defeat a right to immediate possession of personal property in an action in replevin therefor, and only affects the question of costs where the defendant’s original talcing was not wrongful, and he does not resist said right.</p> <p>■(.Syllabus by the Court.)</p>

<p> Error - from County■ Court, Coal County; R. H. Wells, Judge. </p> <p>Action by W. F. Wever and another against the Pioneer Fire Insurance Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>ACTION ON INSURANCE POLICY. See ease of W. F. Wever and Tom Bale, as Agent of W. F. Wever, v. Pioneer Fire InsuranceCo., ante, p. 546. 153 Pac. 1146. tbis day decided.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Coal County; B. H. Wells, Judge. </p> <p>Action by W. F. Wever and another against the Commercial Union Assurance Company, Limited, *"of London. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Payne County; A. II. Huston, Judge. Action by W. E. Berry and another against the City of Stillwater and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Mollie Harjo and another against George E. Black and others. From an order overruling motion to strike from the files a written dismissal filed by plaintiffs, plaintiffs bring error.

<p>APPEAL AND ERROR — Dismissal—Case-Made. Where plaintiff in error fails to make and serve bis case-made within the time allowed by statute, or within the time as extended by the court before the expiration of the statutory period, the same is a nullity, and, on motion, the appeal will be dismissed.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Muskogee County; R. P. de Graffenreid, Judge. Proceedings between W. W. Kerr and J. S. Weathers, guardian of Ora and Gertrude Smith, minors, and others. From the judgment on appeal from county court, Kerr brings error.

<p>JUDGES — Disqualification—“Interest” in Litigation — Taxpayer. In a suit by a resident taxpayer of a county against the county commissioners and others assailing for fraud the validity of a special election, held pursuant to a resolution of the board for the purpose of submitting to the qualified voters of a county a proposition of whether’ the board shall be authorized to issue negotiable coupon bonds in the sum of $100,000, the proceeds to be used to purchase a site and build thereon a courthouse and jail for said county, and to levy and collect a tax upon all taxable property therein sufficient to pay the interest and principal of said bonds when due, field, that the interest of a district judge, a resident1 taxpayer of the county, is such an interest, within the contemplation of Revised Laws 1910, sec. 5812, as will disqualify him to try the cause.</p> <p>(Syllabus by the Court.)</p>

<p>APPEAL AND ERROR — Appeal From Joint Judgment — Necessary Parties — Service of Case-Made. All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgments can be reviewed; and where a review of the judgment is sought by means of a petition in error and case-made, service of the case-made within the time prescribed by the statutes must be had against all parties who do not join in the appeal as plaintiffs in error, but who are made parties thereto as defendants in error.</p> <p>(Syllabus by the .Court.)</p>

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by Fred E. Storm against W. T. Richart. S. O. Waggoner and another intervened. Judgment for defendant, and plaintiff brings error.</p>

Error- from District Court, Ellis County; G. A. Brown, Judge. Action by Jennie White and another against C. M. Dowell, Road Overseer of Dist No. -, and others. Judgment for defendants, and plaintiffs bring error.

Error from County Court, Rogers County; Edgar Anderson, Judge pro tern. Action between T. A. Cain and Ed King. From-, the judgment, Cain brings error, and King moves to dismiss.

<p>PLEDGES — Surrender of Collateral — Action on Note — Defense.. Where, in a suit on a promissory note made, executed, and delivered by defendants to plaintiff for advancements, the evidence disclosed, in support of a plea of want of consideration, that, to secure said advancements, defendants had pledged to plaintiff 169 bales of cotton, and with plaintiff’s consent had thereafter shipped the same to K. for sale and accounting, and had turned over the bills of lading with draft on K. attached for $5,100 to plaintiff for collection, which was paid, and the proceeds credited on the amount advanced', that defendants at the saíne time executed to plaintiff a written assignment of all of' their remaining interest in the cotton, which it “adeepted,” and that plaintiff realized nothing further from the sale of the cotton, which was sold for a price fixed by defendants, and account sales were rendered to them by K., held, that defendants were not entitled to an accounting from plaintiff on the further proceeds of the sale, that the evidence was insufficient to defeat a recovery on the note, and that the court did not err in setting aside a judgment for defendants and granting plaintiff a new trial.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Noble County; W. M. Bowles, Judge. </p> <p>Action by the Ponca State Bank against A. L. Streeter and another. Judgment for plaintiff, and defendants bring error.</p>

■ Error from District Court, Choctaw County; A. H. Ferguson, Judge,, . Action by O. A. Simmons against-the Varner-Collins-Hardware Company, the New Milford- Security Company, and others. From the judgment,' the ya-rner-Coliins Hardware Company named brings . error.;; -

<p>1. CONSTITUTIONAL LAW —Due Process — Equal Protection-Power to Contract — Statutory Regulations — State Insurance Board. Chapter 174, Sess. Daws 1915. p. 346, creating a State Insurance Board and providing for the regulation and control of rates of premiums on insurance, and for other purposes therein specified, is not in violation of any rights of the companies affected thereby doing business in this state secured to them by the Fourteenth Amendment to the Constitution of the United Stated, and is within the legitimate police power of the state.</p> <p>2; INSURANCE — Power to Regulate — State Insurance Board. The business of. insurance affected by the provisions of said act is of such nature and affected with such a public interest as to - justify legislative regulation thereof and of the rates charged by the,' companies engaged in such business.</p> <p>3. CONSTITUTIONAL LAW — Legislative Power — Delegation-State Insurance Board. It is -within the power of the Legislature to create a State Insurance Board, and to require every fire, ■ tornado, and plate glass insurance company and every insurance company granting insurance against the liability of employers to file with said board a schedule of rates charged by it for such risks, and to prohibit a change in such rates except after ten days’ notice to said board of such contemplated change, and authorizing said board, when it shall determine that any rate is excessive or unreasonably high, or that said rate is inadequate to the safety or soundness of the company granting the same, to direct said company to file a higher or lower rate, commensurate with the risk, and further requiring that in every case the rate shall be reasonable, when provision is made for a review of the orders of said board by the courts.</p> <p>4. INSURANCE — Statute Creating State Insurance Board — Validity. Section 174, Sess. Laws 1915, p. 340, is not violative of the provisions of sections 22, 23, and 24 of article 6 of the Constitution, creating the Insurance Department and the office of Insurance Commissioner, nor does such act deprive the Insurance Commissioner of any powers or duties conferred upon him by the Constitution.</p> <p>5. CONSTITUTIONAL LAW — Construction—Grant of Powers— Constitutionality of State Insurance Board. The grant to the Legislature of specific authority by section 19, art. 9, of the Constitution to vest in the Corporation Commission additional powers and duties in connection with the visitation, regulation, or control of corporations, or with prescribing and enforcing rates and charges to be observed in the conduct of any business, where the state has the right to prescribe the rates and charges in .connection therewith, does not deprive the Legislature of its power to regulate and control such matters or to create the State Insurance Board and vest it with the powers enumerated in said chapter 174, Sess. Laws 1915.</p> <p>6. CONSTITUTIONAL LAW — Constitutionality—Determination by Courts. This court will not pass upon the constitutionality of an act of the Legislature or of any of its provisions until there is presented a proper case in which it is made to appear that the person complaining is entitled to the benefits of said act or about to be subjected to some of its burdens or penalties.</p> <p>, 7. CONSTITUTIONAL LAW — Equal Protection — Insurance—Statutory Regulations — State Insurance Board. Exempting domestic mutual fire insurance companies and reciprocal associations and mutual insurance companies and reciprocal associations doing business in this state from the provisions of said act does not render such legislation invalid as to other insurance companies, as denying them the equal protection of the laws.</p> <p>8. STATUTES — Title and Subject-Matter — State Insurance Board. The title of the act is sufficiently comprehensive to embrace the various provisions thereof.</p> <p>9. INJUNCTION — Adequate Remedy at Law — Right of Appeal— Order of State Insurance Board. Provision having been made for an appeal to this court from any regulation, order, or rate adopted by said board, said provision gives a speedy and adequate remedy, and an injunction will not lie to restrain said board from proceeding in a matter within its lawful jurisdiction.</p> <p>(Syllabus by the Court.)</p>

<p> Error, from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Mandamus by the Insurance Company of North America, a corporation, and others against A. L. Welch, Insurance Commissioner of the State of Oklahoma. Judgment for defendant, and plaintiffs bring error.</p>

<p>PLEADING — Judgment on Pleadings and Opening Statement. Where the answer of defendants stated a defense to the cause of action set out in the petition, it was error to render judgment on the pleadings and.opening statement of counsel. ■ ■</p> <p>(Syllabus by the Court.)</p>

<p>1. ACTION — Commencement—Filing of Petition — Summons. Under section 3931, Stat. 1893 (section 4703, Rev. Laws 1910), where-the summons in an action for divorce is in due time served, the court acquires jurisdiction of the res or subject-matter of the action as of the date of the filing of the petition and issuance ' of summons thereon by virtue of the doctrine of relation.</p> <p>2. PROHIBITION — Right to Remedy — Maintenance of Divorce Suits — Conflicting Jurisdiction. Where a husband commenced action for divorce against his wife in the district court of a county, and thereupon said wife commenced action for divorce and incidental relief against him in the district court of another county, and it does not appear that there is or will be any sharp and intolerable conflict of jurisdiction between said courts against which there is no adequate remedy at law, the writ of prohibition will not issue, to prevent the latter court from exercising jurisdiction. • 1</p> <p>(Syllabus by the Court.)</p>

<p>1. APPEAL AND ERROR — Case-Made—Time for Making and Serving. Where a case is submitted to the court upon an agreed statement of facts which eliminates all questions of fact, a motion for new trial is not authorized, and the time for making and serving a case-made runs from the date of the rendition of the judgment, unaffected by such motion or the order overruling the same.</p> <p>2. APPEAL AND ERROR — Motion for New Trial — Necessity— Agreed Statement. .In order to obviate the necessity for motion for a new trial when submitting a case to the court upon an agreed statement of facts, there must be an, agreement as to all the ultimate facts, and if the statement merely embraces an . agreement as to certain facts, leaving certain ultimate facts to be found by the court from the testimony and evidential facts, the necessity -for a motion for new trial to obtain a review of the findings of fact made by the court will not be dispensed with.</p> <p>3. USURY: — Question of Fact. Where instruments executed for the loan of money are apparently fair on their face, and the interest reserved thereby, as disclosed by the terms of the instruments, is within the' legal limit, but' the claim is made that usury was, in fact, retained, and that such usurious charge is evidenced by a collateral instrument or by some agreement or device intended as a cloak for such usurious transaction, as, for instance, the charging of' a commission by the lender, the question as to . whether such collateral instrument or such commissions were taken or"reserved with the intent to charge a higher rate of'' interest than that allowed by law,. and whether said transaction was a cloak or device to evade the law against usury, is a question of fact for the jury or the court sitting as a jury.</p> <p>4. APPEAL AND ERROR — Wrongful Dismissal — Reinstatement. Where plaintiffs in error have complied with the law by takings* all steps necessary to perfect an appeal to this court, and peti-.. ■? tion in error in due form with case-made attached thereto is lodged in the office of the clerk of this court within the time allowed by law, and where said petition in error is wrongfully dismissed, the order of dismissal will be set aside, and the cause reinstated and determined on its merits.</p> <p>(Syllabus by the Court.)</p> <p>Kane, C. J„ dissenting.</p>

Error from Superior'' Court, Pottawatomie County; Leander G. Pitman,-Judge. Action by the State, on the relation of City of Shawnee, a municipal corporation, against Geo. K. Hunter, Treasurer of Pottawatomie County. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Reversal—Review. Where plaintiff in error has prepared, served, and filed a brief, as required by the rules of this court, and there is no brief filed and no reasonable excuse given for its absence on the part of defendant in error, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition of plaintiff in error.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Bryan. County; Summers Hardy, Special Judge. Action by Emma Gilbreath, administratrix of the estate of B. F. Gilbreath, deceased, against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Error from, Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Application by B. F. Hamilton to probate the will of Samuel Bailey, deceased, and for letters testamentary. Probate of the will was opposed by Aramelia Parker and others. From a judgment admitting the will to probate and granting letters testamentary, to proponent, the contestants appealed to the district court, from which, court the case was transferred to the superior court, where judgment was rendered for proponent, and contestants bring error.</p>

<p>Habeas Corpus by J. P. Smith.</p>

<p> Error from Superior Court,- Muskogee County; H. C. Thurman, Judge.. </p> <p>Action by E. C. Million against C. L. Steele and others. Judgment for plaintiff, and certain of defendants bring error.</p>

<p> Error from District Court, Greer County; T. P. Clay, Judge. </p> <p>Action by S. A. Heatly and another against the City •of Mangum, a municipal corporation, and others. Judgment for plaintiffs, and defendants bring error.</p>

<p> Error from District Court, Choctaw County; A. H. Ferguson, Judge. </p> <p>Action by Rachel James, nee Reeves, against J. H. Brader. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Norman Barker against the National Oil & Development Company. From an order setting aside a default judgment for plaintiff, plaintiff brings error.

<p> Error from District Court, Coal County; Chas. B. Wilson, Jr., Assigned Judge. </p> <p>Action by E. I. Wakeman, formerly guardian of Ellen Bacon, a minor, against Patsy Greenan, as guardiam of Ellen Bacon, and another. Judgment for defendants, and plaintiff brings error, and defendants file motion to dismiss and ancillary motions to strike sheriff’s return and withdraw a letter from the case-made.</p>

Error from County Court, Washita County; L. R. Shewn, Judge. Action by W. C. Bolen and Park Bolen, a copartnership doing business as Bolen Bros., against C. L. Ligett. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Custer County; Thomas A. Edwards, Judge. Action by the City of Clinton, a municipal corporation, against the Board of County Commissioners of Custer County and others. Judgment for plaintiff, and defendants bring error.