Volume 5 — Oklahoma Reports

<p>1. Taxation — Power of Legislature in Imposing — Extent of The power of taxation is not an arbitrary power, nor can it be exercised capriciously. It i& h dged about and restricted by wise constitutional limitations and fixed general rules. These constitutional limitations and general rules are designed to secure a just apportionment of the burdens of government by requiring uniformity of contributions, levied by fixed and general rules andapportioned by the law, according to some uniform measure of equality. Within these rules and limitations the authority and power of the legislative department is absolute and conclusive.</p> <p>2. Same — Legislative Discretion in. The discretion of the legislature in matters of taxation, is very broad and its exercise may work injustice and oppression. The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers. The power to tax may be exercised oppressively, but if it does not clearly violate some established rule or limitation, the responsibility of the legislature is not to the courts but to the people by whom its members are elected. The courts can only interfere when the conclusion is unavoidable that the legislature has transcended its powers or clearly violated some constitutional or other fixed general rule, defining or limiting such powers.</p> <p>3.INDIAN Reservations — Taxahon of Property Therein. In the absence of any provisions or stipulations in the the treaties by which the Indians were settled on the reservations in this territory, that the lands in such reservations should not, without consent of the Indians occupying them, be included within the limits or jurisdiction of any state or territory that might, thereafter, be created and which should include such reservation within its exterior boundaries, the authority of the territory may extend over such reservation in all matters of rightful legislation, not interfering with the persons or property of the Indians underthe protection of the United States. As to all matters and subjects of rightful legislation, not interfering with that protection and not otherwise repugnant to the constitution and laws of the United States, the legislative power of the territory is as absolute in and upon these reservations, as in any other part of this territory.</p> <p>4.SAME — Taxation of Property on. Taxation is a rightful subject of legislation* It is the duty of the territorial legislature to apportion the burdens of government upon all property within the territory, not withdrawn from its jurisdiction by the Organic Act or otherwise exempted. The property of United States citizens, not connected with the Indians kept upon these reservations, is a part of the mass of property within the territory receiving the protection of its laws and subject to taxation. It was, therefore, the right and duty of the legislature, to subject such property to taxation.</p> <p>S.SAME — Taxationof Cattle of Citizens on Inchan Reservations not an Impairment of the Rights of the Indians. Taxation of cattle of white men kept and grazed upon Indian reservations under leases from the Indians, is not a taxation of any right of property of the Indians. The taxation in controversy in this case was not assessed or levied upon the real estate or upon the rents of real estate belonging to the Indians and was therefore not invalid as interfering with the property rights of the Indians under the protection of the United States and withdrawn from the jurisdiction of the territory nor obnoxious to the principle of Pollock v. Parmers ’ Loan and Trust Company, 157 U. S. 429, even if the constitutional provision governing that case was operative upon any other legislative body than the congress of the United States or in the raising of revenue for any other government than the Federal government, which it was not.</p> <p>6.Taxing Districts — Established by Legislature, not by Courts. The establishing of taxing districts is a legislative, not a judicial function. The taxing district comprising the county of Kay and the attached Indian reservations and unorganized country, was not created by the order of the supreme court, attaching such Indian reservations and unorganized country to Kay county for judicial purposes, but by the act of March 5,1895. The supreme court attached such territory to Kay county for judicial purposes and the legislature adopted and made the district thus created a taxing district.</p> <p>7. Taxation — Discrimination Between Classes of Property, What is Not. An act providing for the taxation of personal property alone in a district where there is no real estate subject to taxation is not invalid as discriminating in taxing different kinds of property. Courts will take judicial knowledge of the treaties of the United States with Indian tribes and from those treaties that the title to the lands in the Indian reservations in this territory is in the Indian tribes, or in the United States for the benefit of the Indians, and that there is no real estate therein subject to taxation.</p> <p>S. Same — Purposes of Validity. Taxation must be for purposes in which the people taxed have a legal interest. Property which is located upon an Indian reservation and which is attached to a county of the territory for judicial purposes but is not within the geographical boundaries of the county and is not a part of the county for municipal purposes and in which the people thereof have no voice in the selection of the county and other officers and no part of the fund derived from the taxes levied can be expended for the purposes for which they were levied within such Indian reservation, and which taxes when collected are to be appropriated entirely to the expenses of the county roads, and schools within the organized county, cannot be taxed for the various county, school, and road purposes of such county. Thé property on such reservation can only be taxed for territorial and judicial purposes.</p> <p>O. Laws — Special, What Are. See Daily Leader v. Cameron, 3 Okla. G77.</p> <p>10. TAXATION — Assessment, Uniformity as to Time of. An act providing for listing and assessing personal property in Indian reservations and unorganized territory, at a different time from that fixed for listing and assessing such property in organized counties, is not invalid for want of uniformity. Taxes must be assessed according to some uniform rule; but this does not mean that the time and method of assessment shall be identical, but only that after the legislature has declared what classes of property shall be subject to taxation, the tax itself shall be levied upon such property or the owner thereof according to a uniform rate of valuation.</p>

<p> Error from the District Court of Canadian County. </p>

<p>1. Complaint — Sufficiency of on Demttrrer. A demurrer will not lie against a complaint for the reason that it fails to allege affirmatively a compliance with art. 20, ch, 18, Laws of Oklahoma, 1890.</p> <p>2. Judgment on Pleadings — Denied, When. Under the practice act in force in Oklahoma prior to the adoption of the code of 1893, it was not error to overrule the motion of the defendants for judgment upon the pleadings before the plaintiffs had been ruled to reply to the allegations of new ipatter set up in the answer.</p> <p>3. Subrogation — New Party Plaintiff. Where a number of parties are jointly sued on promissory notes, and one of the defendants files a supplemental complaint showing that he has paid in full the indebtedness sued upon, and applies to be made a party plaintiff against his co-defendants in the original action, it is not error for the trial court to order the party, upon such showing, to be subrogated to all the rights of the original payee in the notes.</p> <p>4. New Party Plaintiff. Where the cause of action is not changed and all parties thereto submit themselves to the jurisdiction of the court and no showing is made for a continuance, it is not error for the trial court, after the jury has been empanelled, to make, upon a proper application, one of the number of co-defendants the plaintiff in the action, and to direct the trial to proceed to a final determination.</p> <p>5. ANSWER — Plea of Extension of Time of Payment, Motionto Strike Out. Where a paragraph in an answer does not in specific terms allege that the time of payment in a promissory note was by payee extended for a valuable consideration, no error is committed in sustaining a motion to strike out such paragraph.</p> <p>6. Verdict— When the Court Should Direct. The right of a trial court to direct the verdict of a jury is undoubted where the only questions to be determined are matters of law arising during the trial of the cause, and in a suit on promissory notes, where the ownership of the same is undenied, it is the duty of a trial court to instruct the jury that the owner of the notes was entitled to all the rights of the payee named therein.</p> <p>7. Promissory Note — Agency. Where a person acting in a private capacity as an agent in signing a promissory note fails to disclose his agency, but where he describes himself merely as a director or trustee or agent for the person or corporation for whom he is signing and there is nothing in the body of the note showing that it is the obligation of his principal, he is personally bound upon the instrument; and where a suit is brought against him individually, he will not be permitted to avoid his liability by parol proof showing that he signed the note in his agency capacity.</p> <p>8. Same — Parol Evidence. Where upon the face of a note such an ambiguity exists as makes it impossible for the court to say what the contract does express, parol evidence may be admitted to explain the contract, but not to ■modify or change it so that the maker may avoid his liability.</p> <p>9. Chattel Mortgage — -Attorney Fee. Where by the terms of a chattel mortgage it is impossible to determine with certainty whether the ten per cent, named therein as a reasonable attorneys fee in case of foreclosure, wast to be computed upon the proceeds of the sale of the mortgaged- property, or upon the amount of money secured by the mortgage, the attorney fee should be computed upon that sum which will be most favorable to the debtor.</p>

<p> Error from the District Court of Lincoln County. </p>

<p> Error from the District Court of Garfield Count)/: </p>

<p>Contract— What Included Under, A Question of Law. Whether work sued for comes within the contract relied upon for a recovery, and whether the value of the work was to be measured by such contract, is a question of law for the court to determine from all the facts shown. Where a contract was entered into with a board of county commissioners for printing1 advertisements and notices in a newspaper and for furnishing blanks and stationery for the several county officers and the price of such work was specified in the contract; Held'. That printing election tickets was not included within the terms of such contract, and could not be recovered for thereunder; that such work could only be recovered for where there was no special agreement as to price upon a quantum meruit, by showing that such tickets were furnished at the instance and request of the authorized agent of the county, and further showing the reasonable value of such work.</p>

Error from the District Court of Kingfisher County. John Wesley Wright, the defendant below, was indicted, tried and convicted of murder, and appeals.

<p> Original Proceeding in Mandamus. </p> <p>Proceeding in mandamus to compel the city council of the city of Kingfisher, a city of the first class, to approve a tax levy made by the board of education of the city of Kingfisher. The action was brought as an original proceeding in this court in July, 1896, but the return was made, and brief of plaintiff submitted, too late for consideration at the last term of the court.</p>

Error from the District Court of Payne County. . This is an action of injunction brought by Ervin C. Lewis against James 'Atherton, as sheriff of Payne county, Oklahoma Territory, to restrain him from selling blocks 2 to 10, inclusive, of Lewis’ first addition to the town of Stillwater, in said county and territory.

<p>Moition For New Trial Overruled — Action is Final. In the absence of a showing of irregularity, fraud, unavoidable casualty or misfortune, the district court has no power to set aside its order overruling a motion for a new trial, upon a reconsideration of the same motion already passed upon, and a reversal of such order can be had only by proceedings in error in the supreme court.</p>

<p> Original Proceeding in Mandamus. </p>

Error from the District Court of Kay County. statement oe eaots. On the twenty-sixth day of July, 1894, the plaintiffs in error obtained a writ of attachment against the property of the defendant, Dickson, in the district court of Kay county. The attachment was issued at 4:30 o’clock in the afternoon, and was levied upon a stock of hardware in the town of Kildare at 5:16 o’clock of the same day by Crouse, a deputy sheriff.

Error from the District Court of Logan County. STATEMENT OE FACTS. The defendant, Kelley, was engaged in the drug business in the city of Gruthrie, in Logan county, during tlie year 1889 and up to October 30,1890, and he was at that date indebted to the appellant company in the sum of $844.66, and to other creditors, the defendants, in various amounts.

<p> Error from the District Court of Oklahoma County. </p>

<p>New Trial on Motion of Court. On December 5,1895, a judgment was rendered in favor of the plaintiff and against the defendant. On December 6,1895, the court set aside said judgment and continued the cause for trial at the next term. No motion was ever made for a new trial by either party» but the judgment was vacated and a new trial ordered by the court, upon its own motion, and without any cause assigned. Held: That a trial court has no authority to vacate a judgment or grant a new trial upon its own motion; that a new trial can only be granted upon the initiative of one of the parties to the cause and upon motion therefor filed within three days from the rendition of the judgment, unless longer time be given for filing such motion, upon good cause shown; that the order of the court, vacating the judgment and granting a new trial upon its own motion, was without authority of law and is reversible error.</p>

Error from the District Court of Oklahoma, County. Judgment in the court below for the appellee in the sum of $59.77 for balance due upon material furnished for the erection of a house. The plaintiff in error brings the case up. The opinion states the facts.

Error from the District Court of Logan County. STATEMENT OF FACTS.

<p> Appeal from the District Court of Canadian County. </p>

<p> Error from the District Court of Oklahoma County. </p>

<p>1. HOMESTEADS — Second Entries. By act of congress of March, 3,1893, (27 U. S. Statutes-at-Large, 642) provision is madeforsecondhomestead entries in the Cherokee Outlet, as provided in § 13, act of March 2,1889 (25 U. S. Statutes-at-Large, 1005) and it was not error for the trial court to modify an injunctional order theretofore granted thereby permitting contestants to equally occupy a tract of land pending final determination of a land contest in the interior department.</p> <p>2. SAME — Occupancy of By Adverse Claimants. Unless as a matter of law it is clear that one of the parties to a contest has, under the law, no right to enter land as a homestead, and where the contest is based upon a claim of settlement made prior to a homestead entry, it is the duty of the court to provide that both parties may occupy the land pending the final determination of the contest.</p>

<p>1. CONTRACT — Consideration—Answer—-Deimirrer— Compromise of Foundation-less Contest. The dismissal of a contest which the party asserting- it knew * was groundless and was without any cause, and which was being prosecuted for the sole purpose of extorting money from the homestead entryman, could be no consideration for a contract; and where it was alleged, in answer to a suit upon a promissory note and to foreclose a chattel mortgage given to secure the same, that the* note was given as part of the consideration to dismiss a contest against the homestead entry of the defendant, which the plaintiff knew he had no right to maintain, and which was being prosecuted only for the purpose of extorting money from the defendant, it is held error to sustain a demurrer to this answer.</p> <p>2. Contract — Consideration. Also where it is alleged that a contest, the dismissal of which formed the sole consideration of the note, and it appears from the answer that the contract of compromise provided for the giving up of the possession of the land, and where no other right to such possession appeared than that which was asserted by virtue of the alleged foundation-iess and extortionate contest, an agreement to give up such possession of the land would be no consideration for the note.</p>

<p> Appeal from the District Court of Pottawatomie County. </p>

<p>Mandamus — Not Proper Remedy, When. This case is heard upon the petition and answer, which show that money is now in the hands of the respondent, who is the treasurer of the board of education of the city of Guthrie, and that it is either now due to the relator or to other persons who, like him, hold warrants from the board of education upon the said treasurer, directed to the district fund, and that the treasurer refuses to pay so much of such fund to the relator as will satisfy the warrant held by him. Held: There is, in this case, a plain and adequate remedy at law in behalf of the relator against the treasurer on his bond, and his action should be at law, even if there was no contention as to whether the money in the hands of the treasurer is due to the relator, or to other holders of similar warrants.</p>

<p> Error from the District Court of Bayne County. </p>

<p> Appeal from the District Court of Oklahoma County. </p> <p>The appellant was convicted of the crime of perjury in Oklahoma county and sentenced to serve a term of five years in the United States penitentiary. He assigns error in the proceedings had upon the trial of the case in the court below and brings the case here for reversal. The opinion states the facts.</p>

Error from the District Court of Logan County. Mandamus by the Territory of Oklahoma on the relation of W. H. Gray, receiver of the National Bank of Guthrie, against the mayor and common council of the city of Guthrie to require respondents to levy a special tax for the payment of certain warrants issued by said city.

<p>1. CRIMINAL Law — Statute of Limitation — Inhabitant of or Usually Resident— Meaning of . The clause in the exception in the statute of limitations, § 4953, Statutes of Oklahoma, 1893, reading, “and no time during which the defendant is not an inhabitant of or usually resident within the territory is part of the limitation,” means, that no time during which the defendant did not have a fixed, permanent and established home where his personal presence might reasonably be known, would constitute any part of the period of limitation.</p> <p>2. CRIMINAL Law — Statute of Limitation — Inhabitancy and Residence — Proof of — Burden Upon Whom — Degree of. The defense of the statute of limitation is an extrinsic, exculpatory defense in the nature of confession and avoidance. It does not traverse any of the material elements of the crime charged; and where an indictment was not found until more than four years after the commission of the crime, and the territory had established that, immediately after the commission of the crime, the defendant fled, the burden was not upon the territory to establish, by evidence, to the satisfaction of the jury, beyond a reasonable doubt, that the defendant, during the period of the statute of limitation, was not an inhabitant or usually resident within the territory; but the burden was upon the defendant to satisfy the jury, by the preponderence of evidence, that during said time he was an inhabitant and usually resident within the territory. Where, in a criminal case, the defense is extrinsic, not traversing any of the material elements of the defense and the facts upon which such defense is based, are peculiarly within the knowledge of the defendant, he will be held to establish those facts to the satisfaction of the jury, by the preponderence of the evidence, before he is entitled to an acquittal.</p>

The decision of the court below is reversed and this cause remanded for the reason announced in the case of Robert Martin, Mayor, et al. v. The Territory of Oklahoma ex rel. W. H. Gray, decided at this term. Error from the District Court of Logan County.

<p> Error from the District Court of Pottawatomie County. </p>

<p>Avsr&KL — Case-Made—Notice. The reason why attorneys of record are entitled to notice to appear before the judge at the time of settling a case-made upon appeal to the supreme court, is in order that their suggestions may be considered, and, if approved, adopted. But where the case-made has been served upon the attorney of record for the defendant in error and he has made suggestions and such suggestions have been adopted by the plaintiff in error, and incorporated into the case-made andthe defendant in error has waived notice to appear, he can have no cause to complain, and the case cannot be dismissed here on account of the absence of such notice from the record.</p>

Error from the District Court of Grant County. Action of injunction by plaintiff, board of education, against the defendant, county superintendent, to restrain ber from detaching one-half section of land from the plaintiff’s school district, and attaching it to an adjoining district. Judgment was had for the defendant, from which the plaintiff appeals.

<p>1. Appeal. The Organic Act provides that an appeal lies from all final decisions of the district court of this territory, and an appeal, therefore, lies from a final decision of a district court, rendered in the exercise of the concurrent jurisdiction with the court of claims, within certain limits, bestowed upon district and circuit courts of the United States to hear and determine claims against the government, and which jurisdiction is, by the Organic Act, conferred upon the district courts of this territory.</p> <p>2. Suit to Recover Purchase Money for L,an-d — Application to Secretary, 'with Relinquishment, and Surrender of Duplicate Receipt, not Necessary Pre-Requisite. It is not necessary that a party bringing suit, in a district court of this territory, exercising the jurisdiction of a circuit court of the • United States, under the act of congress of March 3,1887, to hear and determine claims against the government, such suit being brought for the recovery of money paid for land on which the entry was erroneously allowed and afterwards cancelled, should show that he had surrendered to the secretary of the interior his duplicate receipt, and had executed a relinquishment of all claims to the land, as provided by the second section of the act of congress of June 16, 1880, authorizing the secretary of the interior to make repayment of moneys received on entries erroneously allowed. The remedies granted by these two statutes are each distinct and separate from the other, and it is not necessary to exhaust the remedy granted by the first act in order to pursue the remedy granted by the later one.</p>

<p>Homesteads. The courts of this territory are not authorized to review the action of the interior department in its disposition of the public domain until after title to the lands has passed from the government.</p>

Error from the District Court of Canadian County. Action by plaintiff below, for himself and others similarly situated, to restrain Frank D. Baldwin, as Indian agent, and Frank Farwell, as Indian policeman, from removing plaintiff and such other persons from land. Temporary injunction was granted, and on motion of defendants, presented by the United States attorney, the temporary injunction was dissolved. From this order plaintiff Wilbourne appeals.

<p>1. Chattel Mortgage— Validity of, Not Considered, When. A chattel mortgage was executed by the plaintiff in error, the Will T. Little company, to Horsfall to secure a debt due the Guthrie National bank. Afterward possession was taken of the stock of goods by M., president of the bank. A question arose upon the validity of the mortgage upon its face. Upon the trial, after a jury was empanelled and testimony was taken, the case was with-* drawn from the jury and submitted to the court. The journal entry taken by the clerk of the court, the journal entry prepared by the attorneys and signed by the judge, and an amendment to the record before the same was settled and signed, all showed, that: “Both parties elect to submit the case to the court upon the question of the validity of the mortgage in question.” Held: That the question as to whether possession was taken by M. in behalf of Guthrie National bank under a transfer by way of pledge, cannot, after such an agreement, be considered by this court.</p> <p>2. SAME — Instrument Void as to Creditors. The right having been reserved to the maker of a chattel mortgage of a stock of goods, wares and merchandise, to sell, “in the usual course of business, and apply the proceeds of such sale to pay the actual and necessary expenses of carrying on the business, and replace enough goods to keep the stock up to its present value.” The mortgage also provided that it was to “cover all goods, wares and merchandise thereafter bought for said store.” The power is thus reserved to the moit-gagor to appropriate the surplus. Such an instrument is itself fraudulent and void as to creditors, as a matter of law, irrespective of the question as to whether or not any fraud or fraudulent intent did, in fact, exist.</p> <p>3. Same— Valid as Between Parties. But such a mortgage is good between the parties to it, and when the mortgagee has obtained possession of the mortgaged stock by the consent of and agreement with the mortgagor and has proceeded to exercise his rights over the property as provided by the mortgage to secure the payment of his debt, such mortgage is completely good as against creditors asseiting their rights under liens acquired subsequent to such possession.</p>

<p> Error from the District Court of Canadian County. </p>

JSrror from the District Court of Kingfisher County. STATEMENT OF FACTS. Annie M. Hamil brought her action in replevin in the district court of Kingfisher county to recover the possession of four hundred bushels of wheat which the defendant, as sheriff, had levied upon under an execution upon a judgment against the plaintiff’s husband, James M. Hamil.

<p>1. Qualifications for Holding Office. Under § 5 or the Organic-Act of this territory, the legislature has the power and authority to prescribe the qualifications for holding office.</p> <p>2. County Superintendents. The proviso found in § 9, ch. 73, relating to schools, is general in its application and applies alike to those elected as well as appointed to the office of county superintendent of public instruction.</p> <p>3. Certificate. Where the evidence clearly shows that a person is not the holder of a first grade certificate by reason of not possessing the qualifications required under the law, as shown by a public examination, to entitle a person to holdsuch certificate, such person, although possessing a certificate which purports upon its face to show that he is qualified to hold a first grade certificate, will not be placed in possession of the office of county superintendent of public instruction if the examination papers, as returned by such person when examined for the certificate, clearly shows him not entitled to receive a first grade certificate.</p>

Error from the District Court of Canadian County. STATEMENT OE EACTS.

Error from the District Court of Cleveland County. Action commenced by defendants in error in the district court of Cleveland county, by petition, against the plaintiffs in error, seeking to have certain chattel mortgages, set forth in said petition, declared to be and to constitute a general assignment for the benefit of creditors, and asking the court to appoint a receiver for the stock of goods conveyed by said mortgages and to restrain the plaintiffs in error, as…

Appeal of J. H. Garver, who was convicted in the district court of Oklahoma county of carelessly allowing prisoners- to escape from the jail of Oklahoma county, while he was acting jailor thereof. The opinion states all the facts necessary for a consideration of the case.

<p>1. Criminal Law — Demurrer to Indictment — Questions Raised by, A demurrer to an indictment goes only to the sufficiency thereof, and of the averments therein, and not to questions affecting the regularity or legality of the organization of the grand jury that returns it.</p> <p>2. Same — Indictment—Organization of Grand Jury — Questions Affecting How Raised. By § 5110, Statutes of 1893, as amended by Session Laws of 1895, p. 196, after an indictment has been returned, questions affecting the regularity of the drawing, summoning or empanelling of the grand jury must be raised and presented by a motion to set aside the indictment; but by § 5111, Statutes of 1893, as amended by Session Laws of 1895, p. 197, such question may be raised and presented upon a motion for a new trial, where it is shown that the facts upon which objections are based were not known to the defendant or his counsel until after the jury was sworn for the trial of of the cause.</p> <p>3. Same — Change of Venue — Discretion of Court to Award or Refuse. By § 5138, Statutes of 1893, as amended by Session Laws, 1895, p. 197, where the offense charged in the indictment is punishable with confinement in. and for a term less than life, in the territorial prison, and an application is made for a change of yenue, supported by the affidavit of the accused and corroborated by five disinterested persons, that a fair and impartial trial cannot be had in the county where the indictment was returned the awarding or refusing of such change of venue is within the discretion of the court, and the action of the court, in awarding or refusing such change, will not be reversed, unless where an abuse of such discretion is shown by the record.</p> <p>4. Same — Facts Dehors the Proceedings — How Presented. Where facts dehors the proceedings in the trial of a criminal cause and which may affect the regularity of such a proceeding occur, such fact must be presented to the court by motion, and must be supported by competent evidence, and the evidence as well as the motion must be incorporated in the record, or the action of the trial court in relation thereto cannot be reviewed on appeal.</p>

<p>1. Civil Action —Commenced^ When. In this territory a civil action is commenced by “filing in the office of the clerk of the proper court a petition and causing a summons to be issued thereon,” and the plaintiff is entitled, in an action in replevin, to institute his claim for immediate delivery of the property, and such action for replevin is “commenced” for the purpose of prosecuting such claim, although the plaintiff does not follow up his endeavor to procure service by “the first publication or a service of summons within sixty days.” unless such failure to procure service or make publication within sixty days from the filing of the petition is plead as a bar to an action, under the statutes of limitations, art. 3, § 20, of the code of civil procedure.</p> <p>2. Replevin — Appearance of Defendant — Jurisdiction. In an action in re-plevin, if the defendant is found in another county than that in which the action is brought, but yet appears, generally, to the action by filing his answer, in which ownership and possession are alleged, and in which the jurisdiction of the court is questioned and denied, such an appearance is a general appearance for all purposes, and it is error in the court thereupon, to confine the taking of testimony to the mere value of the property, and to direct the jury to return a verdict in favor of such defendant for the value of the property and damages. In such a case, evidence upon all the issues properly raised in the pleadings, and relevant and necessary to a determination of the whole case upon its merits, should be heard, and the case given to the jury to determine upon.</p>

<p>l.C'RiTsinsA.'L.'LiA.'W — Indicimejiiforfiape. An allegation in an indictment for rape which charges that the defendant “feloniously made an assault and attempted by force, threats, and violence to have carnal knowledge of a female without her consent,” is equivalent to a statement that she resisted, and under such an allegation evidence that she resisted or was prevented from resisting, is admissible.</p> <p>2. Trial — Inadmissible Evidence. Evidence is inadmissible, in a prosecution, for assault with intent to commit rape, of the particulars of the complaint made by the prosecutrix to her husband some hours after the alleged commission of the offense.</p>

Error from the District Court of Logan County. Action by Mary S. Maharry against William 'J. Maharry for divorce and alimony, in which Teague Ray was subsequently joined as the fraudulent transferee of the property of the defendant.

Original Proceeding in Habeas Corpus. Proceeding by petition for habeas corpus in which the petitioner represents that she is a member of a religious organization, known as the Salvation Army, and… Held: under a warrant of arrest, issued by the police judge of the city of Oklahoma City, under authority of an ordinance of said city, which petitioner alleges to be void.

<p>Case-Made— Tune for Service ofWhere, by an order of court, time is given to a certain day within which to serve a case-made or other paper, or to do any act in court practice, the time allowed includes the day named, as the close of the period prescribed. And where an order was made granting to the sixth day of May, 1895, to make and serve a case-made, held: that such case-made was served in time, when served on said day.</p>

<p>1. Attachment — Order of Probate Judge, under the provisions of §§ 4120 and 4121 of the code, Laws of 180S, a judge of probate is authorized to grant an attachment in a cause pending in the district court, where it is made to appear that the judge of said district court is absent from the county, at the time of granting such attachment; and where a proper showing is made, authorizing an attachment under said sections; and said sections are not invalid, as being in conflict with the Organic Act of this territory.</p> <p>2. Attachment — Jurisdiction—Service. It is indispensable, to give a court jurisdiction in attachment proceedings, that there should be personal service to the summons in the action upon the defendant, or that the order of attachment be levied upon property of the defendant, or that an order of garnishment should be served upon a garnishee having property in his possession belonging to the defendant, or who is indebted to such defendant. Where there has been no personal service, in an action, and no property of the defendant seized under an attachment, and no property or credits belonging to the defendant, reached by an order of garnishment, the court has acquired no jurisdiction; there being neither a service upon the defendant nor any seizure of his property, there is nothing for the jurisdiction to rest upon, and any proceedings taken in the cause are coram nonjudice and void, and the cause must be dismissed.</p>

<p> Error from the District Court of Payne County. </p>

Error from the District Court of Logan County. Action on the official bond of Cora V. Harvey, nee Diehl, as register of deeds of Logan county. Judgment for defendants, from which the plaintiff appeals. Motion to dismiss appeal.

Error from the District Court of Woodward County. Action to enjoin the excess in a tax levy for salary of county officers. Judgment for defendants, from which plaintiff appeals.

<p>X. Taxation — Personal Property — Where Assessed. By § 1, art. 5, Session Laws, 1895, it is provided that “where any personal property shall be located in any county of this territory after the first day of March of any year, which shall acquire an actual situs therein before the first day of September, such property shall be assessed, &c.” and § 2 of the same article further provides that “Whenever any live stock shall be locatad in this territory for the purpose of grazing, it shall be deemed to have acquired an actual situs therein.” And where the proof shows that cattle owned in another state or territory actually ranged and grazed in a certain county of Oklahoma during the entire year; Aeldt that such cattle were properly taxable in such county.</p> <p>2. SAME — Situs of Personal Property. While it may be stated, as a general proposition of law, that personal property has no situs except that of the domicile of the owner, yet this doctrine yields wherever it is applied to the taxation of personal property.</p> <p>3. Same — Where Double Taxation May be Imposed. Because a cattle company has already listed its property for taxation in another state and the imposition of taxes in this territory may result in double taxation, such fact does not make the tax in this territory illegal. Each taxing jurisdiction has the right to determine for itself how the taxes within its own jurisdiction shall be levied.</p>

<p>X. HOMESTEAD — Mortgage Subsequent to Final Receipt and Prior to Patent Valid. Notwithstanding the provisions of §4 of the Homestead act, (12 Statutes-at-Large, 393),amortgage executed upon land after the homestead entryman has made final proof and received final certificate'therefor is valid and such mortgage may be enforced by foreclosure and sale of theland.</p> <p>2. Mortgage — May be Foreclosed, When. Where a party has made final proof for a homestead underthe laws of the United States, and received from the government a final certificate therefor, and thereafter executes a mortgage, the party in whose favor the mortgage runs may, upon default, foreclose the same, notwithstanding a contest may have been instituted in the land department to cancel the certificate issued to the entryman.</p>

Error from the District Court of Logan County. Action to enjoin tlie issuance of a tax deed. Trial by the court, and judgment rendered 'for defendant, from which plaintiffs appeal.

<p>Error from the District Court of Canadian County. '</p> <p>Jessie Slover was convicted of robbery in the first degree, sentenced to ten years’ imprisonment in the penitentiary, and brings error.</p>

Error from the District Court of Oklahoma County. The defendant was prosecuted by information for keeping a bawdy house and was convicted. The facts are stated in the opinion.

<p> Error from,*,the District Court of Logan County. </p> <p>STATEMENT OE THE CASE.</p> <p>This was an action for damages for injuries received by reason of the negligence of the plaintiff in error.</p> <p>The case was brought by the defendant in error in the district court of Logan county. Among the material averments of the petition were that on the - day of January, 1893, First street, a street in the defendant city, was much traveled and used by the citizens of that city and public generally, and was negligently allowed to become out of repair at a point thereon between Harrison and Oklahoma avenues, on the west side of First Street; that there was a dangerous hole or excavation at that point, and that a number of large stones extended from the west side of the street at .the point referred to, east for several feet into the street almost entirely blocking that portion of the street on which the west sidewalk at that point was laid, and that there were small wires stretched across the portion occupied by the sidewalk and at that point near the ground, and of all of which excavation and obstructions the defendant had notice but failed and neglected to improve the same for the space of five or ten days; that the obstructions and excavations were made in the construction of the Victor building; that permission had been given by the defendant to erect that building and to maintain the obstructions and excavation; that on the night following the thirtieth day of January, 1893, the excavation and obstructions were negligently allowed to remain without lights, open, exposed, and that the usual electric light at the nearest street corner was not burning, and that there was no guard stationed around or near them to inform the public or the plaintiff of the dangerous condition of the west side of First street, at that point. About 8 o’clock that night, the plaintiff was lawfully traveling on the street at the point mentioned, and along the sidewalk on the west side of First street, and at the point mentioned, and by reason of the wire and large stones obstructing the sidewalk which had been thus negligently left exposed and unguarded, she accidentally, and without fault on her part, struck one of her feet against one of the wires, or against one of the stones, and was violently thrown against another of the stones, and into the excavation, where she was greatly injured, and that she sulfered personal injuries of a permanent character. She demanded damages in a large sum.</p> <p>A demurrer to the petition was overruled, and the defendant answered, denying generally, and alleging that the injury, if any was sustained, was due to her own fault and negligence, and was without fault or negligence on the part of the defendant.</p> <p>Upon trial of the cause the jury was instructed by the court, that:</p> <p>“It was incumbent for the plaintiff to show, if she was injured, that it was caused by reason of the negligence of the defendant in not keeping its streets and sidewalks in repair, and that in traveling such streets she used reasonable and ordinary care, and that unless they so found they could not award the plaintiff damages.”</p> <p>And that:</p> <p>“While the defendant was bound to use all reasonable care, caution and supervision to keep its streets and side-» walks in a safe condition for travel in the ordinary modes of traveling, by night as well as by day, and if it fails to do so, it is liable for injuries sustained in consequence of such failure, provided the party injured is exercising reasonable care and caution. But if by ordinary care the plaintiff could have avoided the consequences herself, of the defendant’s negligence, she cannot recover.”</p> <p>And the court further instructed the jury, that:</p> <p>“You are instructed that persons traveling upon the sidewalk of a city, which is in constant use by the public, have the right, when using the same with diligence and care, to presume, and act upon the presumption, that it is reasonably safe for ordinary travel. But if a person traveling upon a sidewalk comes to a place in the walk where’ there is an appearance of danger, or where they h.ave been told that danger exists, then such person must not proceed further upon the presumption that the walk is in a safe condition, but the law requires a person, after they have notice of danger, to use care commensurate with the apparent danger, and if a person fails to so act and receives an injury, such person cannot recover damages for the injury sustained. But if, after a person traveling along a street receives notice of danger, such person, .in the exercise of due care, and under the belief that they have found a safe place, attempts to pass along the street, and in such atttempt receives an injury, which could not have been avoided by the use of a degree of care apparently sufficient to avoid the danger, then such person may recover for the injuries sustained, if caused by the negligence of the city.”</p> <p>The jury found for the plaintiff, assessing her damages at five hundred dollars, and also made the following findings to special interrogatories presented to the jury by the court at the request of the defendant:</p> <p>“Ques. 23. If you find for the plaintiff, state what damages you allow for loss of time? (No answer).</p> <p>“Q. 24. If you find for the plaintiff, state what amount you allow for incapacity to perform labor? Ans. Three hundred dollars.</p> <p>“Q. 25. Was the wire wherein plaintiff’s feet were caught, or tripped, the direct and immediate cause of plaintiff’s fall, which resulted in her injury? A. Yes; the wire, or whatever it was that tripped her.”</p> <p>The counsel for the defendant filed a motion for judgment upon the special findings of fact, for the reason that they were inconsistent with the general verdict, which was overruled, as was also a motion for new trial.</p>

<p> Error from the District Court of Canadian County. </p> <p>STATEMENT OE EAOTS.</p> <p>On the twenty-fifth day of April, 1895, the grand jury of D county returned an indictment against Bailey Son, Alfred Son, Dick Yeager, alias Zipp Wyatt, Dan McKinzie, and Grant Pettyjohn, charging said parties with the murder of one Fred Hoffman. The case was taken upon a change of venue to Canadian county, and tbe defendant, Alfred Son, tried upon the indictment. Upon the first trial the jury disagreed. The second trial resulted in a conviction of the defendant, Alfred Son, the jury fixing the punishment at imprisonment for life, A motion for a new trial was overruled, and the sentence of the court pronounced in accordance with the verdict. To reverse the judgment of the lower court the case is brought here and numerous errors are assigned for the consideration of this court only one of which we deem it necessary to consider. Upon the trial of the cause in the lower court certain testimony offered by the prosecution went to the jury, over the objection of counsel for the appellant, and it is claimed that in admitting such testmony, the court committed prejudicial error.</p> <p>In order to arrive at a proper understanding of what was involved in the testimony objected to, it is necessary to review at some length the facts as we gather them from a reading of the evidence.</p> <p>It appears that Fred Hoffman, the person whom the appellant is charged to have murdered, was killed by some person or persons on January 22, 1895. At the time of such killing Hoffman was traveling from his home, some distance southwest of Taloga, to that place, and his body was discovered at a point about three and a half miles southwest of Taloga on January 26, and when so discovered was in a place, by the witnesses termed a “blow hole” in the sand hills near the South Canadian river, and about seventy-five to one hundred feet from the road which Hoffman was traveling upon just previous to the time, as it appears from all the testimony and circumstances in the case, he was murdered. Hoffman was shot twice, as the evidence showed, one bullet hole near the heart and one wound by a bullet entering the mouth and coming out through the top of the head. Within about twenty-five feet from where the body of Hoffman was found lay the dead body of his horse. The animal had-been killed by a shot from a riñe or revolver, the bullet having passed through its neck. The first shot received by Hoffman was the one near the heat, as the one in the mouth appeared from the direction in which the bullet ranged to have been fired after Hoffman had fallen .to the ground, and at such a close range as to powder-burn his face.</p> <p>In and about the vicinity of Taloga, for a few days prior, and upon the morning of the day when it must be presumed from the evidence Hoffman was killed, there appeared a person styled by some of the witnesses as “Buck,” others as “Red Buck,” while others spoke of him as “Yeager,” and one witness gave his real name as “Bert Collins.” As developed by the evidence upon the trial the person so styled and named was a notorious outlaw, given, according to public rumor, to train and express robbery, and upon whose head the express companies operating in- this territory had set a price. This man was seen to be frequently in the company of Bailey Son and Alfred Son and Grant Pettyjohn, and was upon apparent terms of intimacy with such parties.</p> <p>On the morning Hoffman was killed, Alfred Son, the appellant, left the town of Taloga, driving two horses hitched to a single seated' buggy. In the buggy and riding with him was Collins, the outlaw, who was leading a gray horse. Both Son and Collins were armed, the former with a revolver, and the latter with a revolver, and a Winchester rifle. Son and Colling left town driving in a southwesternly direction along the same road which Hoffman was traveling in coming into the town. It developed in the testimony offered by the prosecution that Alfred Son was paying attention as suitor to a young lady, who had sent him a note asking him to come out to where she was staying, and take her to town, and that the trip out, upon the part of Son, was to comply with this request. Just before Son left Taloga he procured a box of cartridges for his revolver, and was in and about a saloon with Collins drinking, and in fact became considerably intoxicated and shot off his revolver in the air, and so conducted himself that the stable man where Son procured the buggy with which to make the trip was about to take the same away from him, when Collins interposed and induced him to permit Son to use the rig, upon Collins’ statement that he would see that the team was properly cared for. Under the evidence it appears that Hoffman must have been killed about the time Son and the outlaw, Collins, would, by traveling at an ordinary gait, meet him. One of the witnesses testified that she saw Hoffman cross the ford on the river, and about fifteen minutes thereafter saw a buggy coming from an opposite direction. Hoffman was killed at a point about one-half mile from the ford. The buggy she saw was the one Son was riding in. At the time she saw the buggy the outlaw was not with Son and the gray horse bad also disappeared. About the time Son and the outlaw were in the vicinity of the place where Hoffman was killed, shots were heard which, from their sound, and the appearance of the smoke, were close to that point.</p> <p>When the body of Hoffman was discovered, on the 2Gth day of January, four days after he was presumed to have been killed, parties searching for a clue to the murderers found the track of a buggy which had left the road near the point where the body was found, driven up to the rim of the blow hole, a distance of from twenty-five to fifty feet from the road, stopped, and from the place where the buggy stopped two persons had walked in the direction of the body and near thereto, and then returned to the buggy. Two horses had been driven to the buggy, as was evinced by their tracks. About one hundred feet south of where the buggy stood were found the tracks of two more persons leading to and out from the blow hole where the body of Hoffman was found. About two hours after the shooting was heard in the vicinity of the place where the body of Hoffman was afterwards found, a party was seen upon a gray horse riding away from such point.</p> <p>In the fall of the year 1894, one express robbery had occurred at Woodward, Oklahoma, and another at Canadian City, Texas, and the Wells, Fargo Express company were trying to locate and arrest the persons engaged in such robberies. Hoffman was county treasurer of D county, and United States commissioner, and was also secretly trying to aid the express company in ferreting out the parties who committed the robberies referred to. The prosecution relied solely upon circumstial evidence to convict. The defense offered no testimony.' Upon the trial of the case one T. M. Cook, over the objection of counsel for the defendant, was permitted to testify to the fact that Hoffman was employed as a detective to ferret out the parties who had committed the express robberies which had occurred at Woodward, and that his efforts were directed towards fastening the guilt for such crime upon the near relatives of the defendant, Son. One Hicks was also placed upon the stand by the prosecution, who testified that, just prior to his death, Hoffman stated to him that he was engaged in looking up testimony concerning the express robbery at Canadian City, Texas. While it appears from the record that counsel for defendant interposed objections to the testimony of the witness, Hicks, yet it is doubtful if the objections as interposed should be by themselves considered as sufficient to authorize this court in holding them good. Thomas Smith also testified, over the objection of counsel for defendant, that Hoffman, just prior to his death, was charging defendant and his relatives with the express robbery at Woodward, and that Hoffman showed him letters that he wrote, and also received, relative to that matter. The witness Cook testified that it was not generally known that Hoffman was engaged in such work. Other questions were asked and answers given relative to the same matter, to which objections were not properly taken and the court, upon his own motion, withdrew from the consideration of the jury all the evidence touching the letters. When counsel for the territory first began interrogating the witness for the purpose of showing that Hoffman was, just prior to his death, at work trying to implicate the defendant and his associates in the express robberies, and upon objection being made to such testimony, the court very frankly stated that he thought that the testimony showing that Hoffman was employed by the express company to apprehend the parties who had committed the robbery, competent, if such efforts were directed towards the defendant then upon trial, or any person jointly indicted with him. .But after the witness had answered that Hoffman was so engaged, and upon motion of counsel for defendant to strike out, for the reason that the statements of Hoffman as to his employment were declarations made in the absence of the defendant, the court said that “unless the knowledge that he, Hoffman, was working for that purpose was brought home to the defendant or some person working with him, it was not competent,” and the court then asked the witness this question: “Do you know anything about these defendants, or of this man who has been described as Wyatt, Red Buck, etc.; do you know anything of their having knowledge of the business in which Mr. Hoffman was engaged, that particular business?” To which the witness answered, “I do not.” After this question and answer the witness was permitted, over the objection of counsel for defendant, to testify that Hoffman was engaged in working up the evidence concerning the express robbery against the near relatives of the defendants.</p> <p>For some reason, and we judge, from the statement of the court, it was inadvertance, the testimony of this and other witnesses touching this matter was not withdrawn from the consideration of the jury, although no attempt was made to show that the defendant on trial, or, in fact, the-parties jointly indicted with him, ever knew or had any cause to believe that Hoffman was engaged in an attempt to connect them with an express robbery.</p>

Hrror from the District Court of Oklahoma County. Prosecution for permitting gambling tables to be set up and used for tbe purpose of gambling in a house occupied by the defendant, in his possession and under his control.

Error from the District Court of Logan County. STATEMENT OP PACTS.

<p> Petition for Re-Hearing. </p>

<p> Error from the District Court of Oklahoma County. </p> <p>Suit by Leavens as executor, against D. D. Kuhlman and George H. Kuhlman, sureties on a promissory note. Judgment for defendant in error in the .court below. Plaintiffs in error bring the case here for a reversal.</p>

<p> Error from the District Court of Oklahoma County. </p> <p>Suit on forfeited recognizance. Judgment for the territory, from which defendants appeal.</p>

<p> Error from the District Court of Oklahoma County. </p>

<p> Error from the District Court of Custer County. </p> <p>The opinion states the facts.</p>

<p> Error from the District Court of Oklahoma County. </p>

Error from the District Court of Oklahoma County. • Action on promissory note. Judgment in the district court for the plaintiff, from which defendant appeals.

<p> Original Proceeding in Mandamus. </p>

Error from the District Court of Logan County. Action instituted in the district court to recover on a promissory note. Plaintiff had judgement, from which the defendant appeals.

<p>1. Proceeding in Error — Time for Filing. A proceeding in error in this court, to reverse a judgment of the district court, must be filed within one year after the rendition of the judgment, or the making of the final order complained of, unless the person bringing the proceeding is an infant, a person of unsound mind, or one who is imprisoned.</p> <p>2. Motion for New Trial — Time Not Extended. The time for instituting a proceeding in error in the supreme court, to review a judgment of the district court, is not extended by the filing of a motion for a new trial, where the action complained of, and embraced in such motion, was in rendering judgment on a motion for judgment on the pleadings.</p>

This case is brought up from Oklahoma county by the appellant to reverse a judgment obtained by the appellee in the sum of $2,000 and interest. The case arose out out of a claim for life assurance. The opinion states the facts.

Error from the District Court of Oklahoma County. STATEMENT OE EAÓTS. The plaintiff, Lindsay, was a brakeman of the plaintiff in error company at the time referred to in the petition. It was bis duty to assist passengers off and on the trains and to aid in the loading and unloading of baggage. On the morning of July 5, 1892, there was a passenger from Oklahoma City, who had a trunk to be carried to the town of Yukon.

<p> Error from the District Gourt of Kay County. </p>

Error from, the District Court of Canadian County. STATEMENT OE EAOTS.

<p> Error from the Probate Court of Grant County. </p>

<p> Original Proceeding in Habeas Corpus. </p> <p>The opinion states the facts.-</p>

<p>1. Motion to Dissolve Attachment — General Appearance. Where a defendant appears in court and moves to dissolve the attachment on the merits of the proceedings, such as the insufficiency of the attachment affidavit, he enters a general appearance in the case, and thereby waives all objections to the service on him in said case, and to the jurisdiction of the court over the person of the defendant.</p> <p>2. Action— When Commenced. An action is commenced when plaintiff files his petition and causes a summons to issue thereon, or when, in an attachment proceeding, he files an affidavit for publication, which is thereafter made good by pursuing the requirements of the statute, or where the regularity of the subsequent proceedings are waived by the entry of the defendant’s appearance within sixty days.</p> <p>3. Attachment Order— When May Issue. An attachment order may issue at any time after the action is commenced in the manner above stated.</p> <p>4. Affidavit for Publication. While an affidavit for publication should be filed separately from the affidavit for attachment, the supreme court will not hold it error for the trial court to refuse to dissolve an attachment where the affidavit for attachment may be held good also as an affidavit for publication.</p> <p>5.Same. An affidavit for publication which states defectively, but inferentially, the things required by the statute, is voidable but not void, and the defects maybe cured by amendment; and where the defendant enters a general appearance in the case without first attacking the service by publication, on the ground of the defect in the affidavit {or publication, he waives such defect.</p> <p>6.Attachment — Grounds for. An attachment in this territory may be based on both of the grounds, that the defendant so conceals himself that a summons cannot be served upon him, and that the defendant is a non-resident of the territory.</p> <p>7.Probate Court — Attachment—Order io Levy on Lands and Tenements not Void. Without expressing an opinion at this time as to whether or not in an action in a probate court, in this territory, lands and tenements of a defendant may be attached, it is held that even if such property could not be attached in such a proceeding that part of the order of attachment which directed the sheriff to levy on the lands and tenements of the defendant was surplusage, and void, the order also directing the sheriff to seize the personal property of the defendant.</p> <p>8. Order of Attachment — Return Day. An attachment order is not void because the sheriff is not directed ,to return it in ten days, but is directed to “make due return of this order, with your proceedings thereon, when fully executed or discharged.”</p>

Error from, the District Court of Noble County. Action to recover a deposit in a bank. Commenced and tried in the probate court of Noble county, and appealed to tbe district court of said county by the defendants, where’the plaintiff again had judgment, from which the defendants appeal.

<p>1. Case-Made — Extension of Time — Power of Trial Cottrt. The trial court has no power to make an order extending the time originally granted for the making and serving of a case-made after such original extension of time has expired.</p> <p>2. Jurisdiction — Failure of — How Shown. Extrinsic facts, which deprive the trial court of jurisdiction to grant an order extending the time within which a case-made may be prepared and served, the record being indefinite and uncertain upon the question, may be shown in this court.</p>

<p>1. Pleading — Negative Pregnant. In a suit on a promissory note, wherein the plaintiffs alleged the execution and delivery of the note at Fairfield, Iowa, a paragraph of the defendant’s answer which alleged: “That said defendant did not execute and deliver at Fairfield, Iowa, to the plaintiffs or either of them the note on which action has been brought and which is set up and described in plaintiffs’ petition,” is a negative pregnant, which admits the execution of the note, and the place of execution being immaterial this paragraph of the.answer presented no defense.</p> <p>2. Pleading — Denial of Indebtedness. And also, in such an action, a paragraph of the answer stating that: “The defendant denies that he is indebted to plaintiffs in any sum whatever,” states no defense, as the plaintiffs did not sue upon an indebtedness, but sued upon a promissory note.</p>

<p> Error from the District Court of Garfield County. </p>

<p> Error from the District Court of Canadian County. </p> <p>Prosecution for burglary, in which the defendant was convicted and sentenced to imprisonment for three years; from which judgment he appeals.</p>

Error from the District Court of Logan County. The defendant, R. S. Cox; was, at the February, 1896, term of the district court for Logan county, sitting with the powers and jurisdiction of a United States district court, convicted of the crime of perjury, and sentenced to imprisonment in the United States penitentiary at Leavenworth, Kansas, for a period of four years, and to pay a fine of one dollar.

Error from the District Court of Logan County. The defendant, James Watkins, was convicted on February 26, 1896, of the crime of perjury, and sentenced to the United States penitentiary, at Leavenworth, Kansas, for the period of two years, and to pay a fine of one dollar, from which judgment of conviction and sentence he appeals.

jError from the District Court of Oklahoma County. Motion to dismiss said cause on 'the ground that no petition in error has been filed in this court. Considered on said motion to dismiss.

<p> Error from the Frótate Court of Notle County. </p> <p>STATEMENT OF THE CASE.</p> <p>This is an action of replevin commenced in the probate court of Noble county on the 11th day of December, 1894, by Laura Gilmer against Will M. Nix, to recover the possession of a dwelling house alleged to be of the value of §180, and the sum of $100 as damages for the unlawful detention of said house. On the samo day an affidavit in replevin and a replevin bond were executed and filed on behalf of the plaintiff, as provided by law, and an order of delivery was issued by said court to the sheriff of said county. On the 19th day of December, 1894, the defendant appeared specifically to said action and filed motions to quash the summons and to set aside the return of the sheriff to said summons. On April 12, 1895, the motion to quash summons was presented and overruled by the court, and the motion to set aside the sheriff’s return thereto was sustained, whereupon plaintiff asked leave for the sheriff to amend his said return, which was granted.</p> <p>On April 15, 1895, the defendant filed in said court a motion .to quash and set aside the affidavit in replevin theretofore filed on behalf of plaintiff, and on the 18th day of April, 1895, this motion came on to be heard and was overruled by the court. On the same day defendant filed in said cause his answer, consisting of a general denial.</p> <p>On April 27, 1895, the cause came on for trial and the defendant demanded a jury, whereupon the court prepared a list of eighteen names of qualified jurors and submitted same to plaintiff and defendant in order that each party might strike therefrom the names of six persons, and demanded of the defendant that be make a deposit of $3 as a jury fee. The defendant refused to make such deposit or to strike any names from such jury list, but demanded that a jury be drawn as provided in procedure civil applicable to district courts, which demand was by the court denied. At this juncture of the proceedings, and on the same day, the plaintiff asked and was grauted leave to file a general demurrer to defendant’s answer, which was done, and thereupon said demurrer was argued in the court and sustained, after which, and on the same day, the plaintiff produced the testimony of herself and her husband, and at the conclusion of the direct examination of each witness defendant’s counsel offered to cross-examine said witness and requested that he be permitted to do so, but was denied this privilege by the conrt. The defendant excepted to all adverse rulings of the court, and brings this case here by petition in error. The other material facts sufficiently appear in the decision.</p>

Error from the District Court of Garfield County. Action on promissory note, with attachment proceedings. From an order dissolving the attachment, plaintiff appeals.

Error from the District Court of Canadian County. Action by defendant in error, W. R. Jennison, against the El Reno Electric Light and Telephone company, and others as cross-petioners, to foreclose a mechanic’s lien. Judgment was had for the plaintiff, from which defendant appeals.

<p> Error from the District Court of Logan County. </p> <p>STATEMENT OF FACTS.</p> <p>This was an action brought by the defendant in error, plaintiff in the court below, against the city of Guthrie, for the alleged conversion of a certain building valued at the sum of $600. The petition alleged, that (1) the organization on April 30, 1889, of the provisional government of East Guthrie, which discharged the functions of a city government until July 1, 1890, when the territory in East Guthrie was, with other territory, organized into the village of Guthrie and continued as the village of Guthrie until the-day of---, 1891, when the village of Guthrie was organized into the city of Guthrie, as now constituted, and (2) that in May, 1889, the plaintiff in the court below contracted with the provisional city government of East Guthrie to furnish all the materials and to erect a building 24 by 48 feet, upon lots 23 and 24„, block 46, in the city of East Guthrie, for which the city of East Guthrie was to pay the sum of §594.90, and (3) that the city of East Guthrie issued to the plaintiff in payment for said building three warrants, each in the following terms: “No. 100. City Warrant. East Guthrie, O. T., June 10, 1889. To the City Treasurer of East Guthrie: Sixty days after date, pay to the order of T. W. Harvey Lumber company, two hundred and seventeen dollars, without interest, on account city hall building, out of the funds not otherwise especially appropriated. H. H. Moore, City Eecorder. $217. Approved, T. H. Soward, Mayor. Eegistered August 20, 1889, not paid for want of funds. J. Scott, City Treasurer;” and (4) that the plaintiff complied with the contract, furnished the materials and erected the building, which was accepted by the provisional government of East Guthrie and possession taken; and (5) that the city of Guthrie has succeeded to the possession of said building, and the city of Guthrie is now using and occupying the same as a city hall; that the defendant, plaintiff in error here, refused to pay the warrants or for the building; and that (7) demand for payment or for the return and possession of the building had been made; and (8) that the defendant below had refused either pay for possession or to allow the plaintiff to take possession of and remove the building, and proceeded to and did convert the building to the use of the city of Guthrie, and (9) that the value of the building at the time of the conversion was reasonably worth the sum of $600, and judgment was prayed for that sum.</p> <p>The city of Guthrie demurred to the petition, that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled, exception reserved, and the defendant answered, (1) denying generally, and (2) admitting the original organization of the provisional government as alleged in the petition, and (3) the contract to erect the building as alleged, and (4) that the defendant in error received from the provisional government of East Guthrie the three city warrants in payment for the erection of the building, as set out in the petition, and (5) that the defendant admitted that it refused to pay the warrants on the following grounds: (a) because the provisional government had no power to incur the indebtedness, and (b) that the plaintiffs, when they furnished the materials and erected the building had full knowledge of the conditions existing in the country at the time, that is, that the provisional government could not incur any legal liability; and (c) that the provisional city government could not transmit any of its liabilities or indebtedness to the city of Guthrie; and that (d) the action was barred by the statute of limitation; and (e) that the materials furnished and used by the plaintiff was not worth the sum of $600; and that (f) since it came into the possession of the building on or before the 20th day of August, 1890, it has made large and valuable improvements thereon, which improvements cannot be separated from the building without making the same entirely worthless.</p> <p>To this answer the plaintiff filed a general demurrer, which was sustained by the court, to which ruling the defendant excepted, and assigned it as error.</p> <p>Thereupon the defendant elected to stand upon its demurrer to plaintiff’s petition, and also upon the assignment of error upon the ruling of the court in sustaining the plaintiff’s demurrer to defendant’s answer. Thereupon the issues were found in favor of the plaintiff, and the court rendered judgment upon the pleadings in the case in the sum of $612.</p>

<p> Error from flie District Court of Logan County. </p>

<p> Original Proceeding in Habeas Corpus. </p> <p>Petition for writ of habeas corpus by Albert W. Pats-wald. Petitioner convicted in the district court of Oklahoma county, sitting with the powers and jurisdiction of a United States district court, of the crime of perjury and sentenced to imprisonment in the United States penitentiary at Leavenworth, Kansas, for a term of three years; to pay a fine of one dollar and the costs of prosecution, taxed at $2,416.15.</p>

Error from the District Court of Noble County. STATEMENT OF FACTS.

Error from the Probate Court of Noble County. STATEMENT OE THE CASE. This was an action prosecuted in the probate court of Noble county by tlie defendant in error, who was plaintiff in the action, to recover.an amount of money claimed to be due to him for services as minister of the defendant church. Judgment was rendered below in favor of the plaintiff, Myers, for a portion of the amount claimed. The defendant, the church, brings the case here.