Volume 51 — Oklahoma Reports

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by Hannah R. Whitten against Henry M. Vance, administrator of the estate of Uries Hutchings, deceased. Judgment for plaintiff,, and defendant brings error.

<p>I. REPLEVIN — Judgment—Relief Granted. While the statutory action of replevin is sufficiently flexible to authorize both legal and equitable rights to be determined in such action, yet the-equities to be settled must relate to the property or the rights, arising out of the contract, and not to the rescission of the-contract, under which 'the property is claimed. The action is to try the right of possession of property, and the defendant,, in the absence of an allegation and proof of fraud', cannot by cross-petition, nor can the-jury by its verdict, change the action-from tort to equity, and modify or cancel such contract.</p> <p>Z. SALES — Breach of Warranty — Measure of Damages. The-proper measure of damage for a breach of warranty is the difference between the value of the machinery as it was warranted to be and its actual value.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p>APPEAL AND ERROR — Case-Made—Making and Serving — Extension of Time. When the time fixed for making and serving a case-made is allowed to elapse, the trial court thus loses jurisdiction of the cause, and an order subsequently made by the trial court i extending the time for making and serving a case-made is a nullity; and a case-made, made and served by virtue of such order of extension, is a nullity, and confers no jurisdcition upon this court.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from District Court, Noble County; W. M. Bowles, Judge. </p> <p>Action by A. M. De Bolt against the Farmers’ Exchange Bank and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Muskogee County; R. P. deGraff enried, Judge. Action by Laura Parks, executrix of the estate of C. F. Parks, deceased, against William Watson and others. Judgment for defendants. Watson, and plaintiff brings •error.

<p> Error from Superior Court, Oklahoma County; Edivard Dewes Oldfield, Judge. </p> <p>Action by H. Pendleton against C. S. Avery and others. Judgment for defendants, James N. McCornack and another, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Presentation for Review — Dismissal—Case-Made — Time to Make and Serve — Extension. Where, in a case-made, there appears, a purported journal entry of judgment, and a recitation that an order was made extending time to make and serve case-made, and the purported journal entry of judgment does not appear to have been filed by the clerk of the .court, or entered in the court journal, and the case-made or transcript of the record does not contain the order extending time to make- and serve case-made, and show that same has been filed with the clerk of the court, or entered in the journal, nothing is presented to this court for decision, and the cause will be dismissed.</p> <p>(Syllabus by McKeown, C.)</p>

<p>APPEAL AND ERROR — Presentation for Review — Motion for New Trial. Where appellant fails to assign as 'error the overruling of his motion for a new trial in his petition in error, no question which seeks to review errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court.</p> <p>(Syllabus by Crow, C.)</p>

<p>1. PLEADING; — Departure—What Constitutes. Plaintiff filed suit to recover upon an insurance policy, and, among other things, alleged “that he has in all matters performed all the conditions of the said policy.” Defendant answered that plaintiff had breached the policy by mortgaging the property in violation of the terms of the policy. Plaintiff, in his reply, pleaded that defendant, by its own conduct (setting out the facts), was estopped Irom claiming that the policy had been so breached. Held, there was no departure.</p> <p>"2. INSURANCE! — Fire Policies — Actions. Where it is stated in an insurance policy that the company insures certain property “while contained in the building and its additions above described,” it is incumbent upon plaintiff to allege and prove that the property destroyed was therein contained at the time of the loss.</p> <p>-3. SAME! — Petition. Where the petition alleges that the property insured was located in the building described in the policy on the 7th day of March, 1912, and in another paragraph alleges that on the 7th day of Mjarch, 1912, the said property was destroyed, it will be inferred that the pleader intended to allege that the property was so located at the time of the fire, and the pleadings will be held sufficient on that point.</p> <p>4. SAME — Proofs of Loss — Evidence. Where1 plaintiff testifies that he furnished proof of loss in writing to defendant’s agent within 60 days after the fire, but the proof of loss or copy thereof was not introduced in evidence, and no evidence was offered as to its contents, it is held, in the absence of any showing upon the part of the defendant that the proof of loss so furnished was not sufficient, that the evidence was sufficient to establish the fact that proof of loss was furnished in conformity with the terms of the policy.</p> <p>5. SAME — Waiver of Conditions — Permission to Mortgage. Plaintiff delivered a certain insurance policy to the agent of defendant and requested him to indorse thereon permission to mortgage same. The agent afterwards returned the policy and stated that he had fixed it. Held, under these conditions, defendant will not be heard to say that under the terms of the policy its agent could not waive the actual indorsement of the policy, should it appear afterwards that the agent had failed to so indorse it. It was not a question of waiver, but a failure to perform a duty.</p> <p>(Syllabus by Mathews, C.)</p>

Error from District Court, Murray County; R. McMillan, Judge. Action by Emil Swanson against the Sulphur Electric & Refrigerating Company and another, wherein E. G. Bay-less and others intervened, and V. A. Swanson wás made party defendant by interveners. Judgment for interven-ers against V. A. Swanson and the Sulphur Electric & Refrigerating Company, and V. A. Swanson brings error.

<p> Appeal from, District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by Mrs. O. C. Tarpenning and others against Kate S. Compton. Judgment for defendant, and plaintiffs bring error.</p>

<p> Error from District Court, McCurtain County; Summers Hardy, Judge. </p> <p>Action by Ellis Jefferson against James E. Whitehead. Judgment for plaintiff, and defendant brings error.</p>

<p>I. STATUTES — Construction—Statutes Adopted from Other States. Article 1, c. 10, Sess. Laws 1907-08, was not borrowed from the laws of any particular state, but was the outgrowth of years of legislation and experience. A construction placed upon similar laws by the Supreme Court of the State of Missouri is not binding upon this court, unless it is clearly shown that the Legislature borrowed article 1, supra, from the laws of Missouri, after such laws had been construed.</p> <p>3. MUNICIPAL CORPORATIONS — Local Improvements — Resolution of Necessity. The 'resolution of necessity passed by the city council of Muskogee on October 1, 1908, declaring that said council deemed it necessary to grade, pave, macadamize, improve, gutter, drain, and otherwise improve certain streets, avenues, alleys and lanes, therein named, giving 15 days" in which the property owners might protest, and publishing said resolution as required by law, is sufficient to give the council jurisdiction to make the improvements, it being unnecessary under section 2, art. 1, c. 10, Sess. Laws 1907-08, to show in said preliminary resolution the nature, character, and width of such improvements and material to be used.</p> <p>3. SAME — Petition. Where a petition is filed by the owners of more than one-half in area of the lands liable to assessments for improvements under article 1, c. 10, Sess. Laws 1907-08, and the petition is not absolute, but conditioned upon the city council exercising its discretion under section 724, Comp. Laws 1909, in a particular manner therein designated, the council is not bound to proceed under said conditional petition, and may wholly disregard the same.</p> <p>4. SAME — Objections—Limitation of Actions. Within 60 days after the passing of the ordinance making the final assessment for the paving improvements plaintiff sought to enjoin the officers of the city of Muskogee from enforcing the collection of such paving assessments, and set up in his petition two -causes of action or grounds for relief. After the 60 days had expired plaintiff amended his original petition by ineorporatng therein several additional causes of acton. Held, that the statute of limitation when applied to such new causes of action treats the action as commenced when the amendments were filed, and such amendments do not relate back to the beginning of the action. The causes of action set forth in the amendments which are not based upon the exceptions contained in section 728, Comp. Laws 1909, are barred.</p> <p>(Syllabus by Eittenhouse, C.)</p>

<p>1. SCHOOLS AND SCHOOL DISTRICTS — Change of Boundaries —Authority of County Superintendent. A county superintendent, by act of March 11, 1897 (Laws 1897, c; 34, art. 5), has no power or jurisdiction to change the boundaries of a regularly organized school district, by detaching a portion thereof and forming and creating thereby a new district, until a petition has been duly presented to him, signed .by at least one-third of the qualified electors of such district, and until the required notice has been given.</p> <p>2. SAME — Organization—De Facto Corporations. Such a school district, organized without the petition and notice required by law, cannot have a de facto existence,. and has no power to contract or bind itself or others, and its de facto or de jure successors cannot be held liable upon its contracts. .</p> <p>(Syllabus by Bowles, C.)</p>

Error from County Court, Garfield County; Winfield Scott, Judge. Action by W. E. Dusky against Frank Weller. Judgment for plaintiff, and defendant brings error. The plaintiff below brought suit upon an open account for work and labor performed as a painter and for material furnished.

Error from District Court, McClain County; R. McMillan, Judge. Action by O. L. Dulaney and others against James R. Evatt and another. Judgment for plaintiffs, and defendants bring error. This was an action on a building contractor’s bond, which reads as*follows: “Know all men by these presents that Bob White, as principal, and A. M. Hopping and J. R. Evatt, as securities, are jointly held and firmly bound to C. W. Hughes and 0.

Error from. District Court, Bryan County; Summers Hardy, Judge. Action by Ben Ceaphus against the Phenix Insurance Company, of Brooklyn, N. Y. Judgment for plaintiff, and defendant brings error.

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Homer W. Hurley against William J. Anicker. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Act'on by Henry I. Gelruth against the Charles T. Derr Construction Company, Charles T. Derr, and the City of Shawnee. Judgment for defendants, and plaintiff brings error.</p>

<p>1. PAYMENT — Application — Application by Debtor. Generally, where a creditor holds more than one claim against a debtor, the latter, on making a payment, may direct its application to any one or more oí such claims.</p> <p>2. SAME — Application by Creditor. A creditor máy not, against the will of his debtor, apply a payment on a debt not due to the exclusion of the one due or past due.</p> <p>3. TKIAL — Trial by Court — Demurrer to Evidence. Where, on the trial of an action at law, all the issues are submitted to the court without the intervention of a jury, and a demurrer to the evidence is passed upon and sustained, unless it affirmatively appears from the trecord that the trial court treated the cause as one finally submitted for its determination, and, upon considering and weighing all the evidence, found that the demur-rant should prevail, the correctness of the decision sustaining such demurrer must be tested by the general rule that a demurrer admits all the facts which the evidence tends to establish, as well as every.fair and reasonable inference to be drawn therefrom.</p> <p>(Sylllabus by Bleakmore, C.)</p>

Error from Superior Court, Grady County; Will Linn, Judge. Action by S. L. Newman, administrator of Montford T. Campbell, deceased, against Charles L. Campbell, to cancel a deed and quiet title to real estate. Judgment for plaintiff, and defendant brings error.

<p>APPEAL AND ERROR — Verdict—Review. Where the issues are clearly drawn by the pleadings, and the court correctly charged the jury as to the law, and properly directed them as to the issues of fact to be determined, their verdict, and the judgment rendered thereon, will not be disturbed, where the same is reasonably supported by the evidence.</p> <p>(Syllabus by Brett, 0.)</p>

<p> Error from District Court, Grant County; W. M. Bowles, Judge. </p> <p>Action by-Edward E. Gillis against Samuel M. Smith,. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action by L. G. Crews against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. TRIAL — By Court — Taking Case Under Advisement. There being no statute of this state fixing the time within which a judgment must be rendered after the trial of a case in a court of record, a judge of such a court, having fried a case without a jury, undoubtedly has authority to take the same under advisement for a reasonable time, even though that time may extend •beyond the term of the court at which the case is tried.</p> <p>2. APPEAL AND ERROR — Harmless Error — Findings and Conclusions. Where, upon the trial of a case in a court of record, a jury is waived and the ease, is tried to the court, the failure of the court to make separate findings of fact and conclusions of law on a timely demand being made therefor, as required by statute, by one of the parties, is not reversible error when the evidence in the case clearly sustains the judgment rendered and where there is no evidence in the case which would warrant or sustain any other judgment than that which was, in fact, rendered.</p> <p>3. PRINCIPAL AND SURETY — Fraud—Release of Surety. Fraud on part of the principal maker of a promissory note, whereby his surety is induced to sign it, knowing it to be a. note, will not relieve the surety of liabilty to the payee if the payee did not know or have notice of the fraud at the time he accepted the note for a valuable consideration.</p> <p>(Syllabus by Wilson, C.)</p>

<p> Error from County Court, Washington County; James I. Shipman, Judge. </p> <p>Action by F. F. Quaid against the Bartlesville Interurban Railway Company. Judgment for plaintiff, and •defendant brings error.</p>

<p> Error from District Court, Okfuskee County; John Caruthers, Judge. </p> <p>Action by H. McElroy against Gordon Moose. Judgment for defendant, and plaintiff brings errpr.</p>

<p> Error from County Court, McIntosh County; Frank W. Rushing, Judge. </p> <p>Action by the Corrugated Culvert Company' against • Simpson Township, McIntosh County, Okla. • Judgment for defendant, and plaintiif brings error.</p>

<p> Error from District Court, Muskogee County; R. P. de Gruffenreid, Judge. </p> <p>Action by Joe Smith and others against Maud Smith Wharton. Judgment for defendant', and plaintiffs bring error.-</p>

<p>APPEAL AND ERROR — Dismissal—Service of Brief. Where plaintiff in enrol' files a brief, but does not serve it on the defendant in error, as required by rule 7 (38 Okla. vi, 137 Pac. ix), and after the case is submitted an order is made giving plantiff in error additional time to serve the brief, but no service thereof is made, the appeal will be dismissed.</p> <p>(Syllabus by Devareux, 0.)</p>

W. Brewer, Special Judge. In .the matter of the estate of Austin McCann, deceased. From a judgment of the district court affirming judgment of the county court denying a petition for the sale of real estate, the Jefferson Trust Company appeals.

<p>1. APPEAL AND ERROR — Presentation for Review — Motion for New Trial — Bill of Exceptions. Errors occurring on the trial of a cause are not) reviewable in this court, unless ithe same were brought to the attention of the trial court by motion for new-trial, and acted upon, and such motion and the ruling thereon preserved by bill of exceptions included' in a transcript, or incorporated in a case-made, filed with a petition in error in this court.</p> <p>%. NEW TRIAL — Newly Discovered Evidence. Record examined, and held: (1) A continuance of the proceeding for new trial was properly refused; (2) a new trial was correctly denied; and (3) the judgment is valid.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p> Error from District Court, Atoka County; J. H. Gernert, Special Judge. </p> <p>Action by the Oklahoma State Bank of Atoka against J. E. Ward. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Muskogee County; R. P. deGraff enreid, Judge. Action by Willie Love and others against Laura Parks and others. Judgment for plaintiffs, and defendants bring error.

<p>1. REPLEVIN — Property Subject — Undivided Interest in Personalty. Replevin will not lie for an undivided interest in personal property which is not divisible into aliquot parts.</p> <p>2. EQUITY — Possession of Property — Remedy in Equity — Replevin. Where replevin is inadequate, on account of the indivisible nature of the property mortgaged, plaintiff’s remedy is in equity.</p> <p>3. CHATTEL MORTGAGES — Foreclosure—Receiver—Abuse of Discretion. Assuming, without deciding, that the court had power to appoint a receiver under the fácts in this case, yet it was an abuse of discretion to appoint a receiver for property not embraced in the mortgage.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p>MUNICIPAL CORPORATIONS. — Vacation of Plat — Written Consent of Lot Owners. Where, as under the facts in this case, a subdivision of land has been platted into lots, blocks, streets, and alleys, and a portion of the lots have been sold, a part of such addition cannot be vacated, under section 924, Comp. Laws 1909 (section 522, Rev. Laws 1910), without all the owners of lots in such plat joining in the execution of a written instrument, ■as provided by section 923, Comp. Laws 1909 (section 521, Rev. Laws 1910).</p> <p>(Syllabus by Ritltenhouse, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Affirmance. Where plaintiff ■ in error has filed no brief,' as required by rule 7 of tfiis court' (38 Okla. vi, 137 Pac. ix), the. Judgment of the trial _ court will be affirmed.</p> <p>(Syllabus by Dudley, C.)</p>

<p>L PARTNERSHIP — Partnership Property — Rights of Partner. Each member of-a partnership has a joint interest in all the partnership property; 'and one member has no right to use partnership property other than for the benefit of the partnership, without the knowledge, consent, or approval of the other members thereof.</p> <p>2. BILLS AND NOTES — Bona Fide Holders — Check—Partnership. Where one member of a partnership, without 'the knowledge, consent, or approval of the other, indorses a firm check in payment of his past-due debt, and the recipient receives said check with . the knowledge that the same is being so used 'and that said partnership is insolvent, he cannot be said to be a bona fide holder thereof.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by Lee McClain Caldwell against Olga L. Eichoff and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Original action for a writ of mandamus by the State, on the relation of Chas. West, Attorney General, and another, against John Johnstone, Treasurer of Washington County.</p>

<p>APPEAL AND ERROR — Necessary Parties — Joinder in Petition in Error — Effect. Where parties in the trial court are necessary as parties here, but such parties failed to file a motion for new trial in the court below, and served no case-made within the time allowed by law, or by a valid order extending, as to them, the time, and where such parties were not made defendants in error, the mere joining them in the petition in error as plaintiffs in error, along with others who had laid the proper foundation for an appeal, does not bring them into this court.</p> <p>(Syllabus by Brewer, 0.)</p>

<p>1. VENDOR AND PURCHASER — Right of Possession — Ejectment. A vendor cannot maintain ejectment against a vendee in possession under an executory contract of purchase, and not in default.</p> <p>2. SAME — Burden of Proof. In ejectment -by a vendor against a vendee in possession under an executory contract of purchase for an alleged default in said contract, the burden of proof is on the vendor to prove such default.</p> <p>3. JUDGMENT — Res Judicata — Ejectment. In an action in ejectment, a former judgment of a court of competent jurisdiction between the same parties and involving the same subject-matter is conclusive, not only as to every matter involved in the former case, but as to every matter which might have been pleaded or given in evidence, whether same was pleaded or not.</p> <p>4. SAME1 — Pleading. In the absence of exceptional facts excusing a failure so to do, a party should plead all the material facts that constitute his claim or defense, and a failure to do so cannot be made ithe basis of another action.</p> <p>5. PLEADING — Supplementary Pleading — Right to File. By section 4795, Rev. Laws 1910, a party may upon such terms as to ■ costs as- the 'court may prescribe file a supplemental petition, answer, or reply, alleging facts material to !tho case occurring after the former petition, answer, or reply was filed.</p> <p>6. APPEAL AND ERROR — Law of the Case — Decision on Prior Appeal. A decision on appeal by the highest court of a state upon questions of law becomes the law of the case; and, the facts or issues 'being substantially the same at a second trial thereof, such decision is controlling upon the trial court, and is the law of the case in this 'court upon a second' appeal.</p> <p>7. 'SAME. The issues attempted to be tried in this case at the second trial were only those involved in the record brought here on the former appeal and passed upon in the opinion rendered by this court; and, this appearing from the pleadings and statements of counsel, the court properly sustained a motion for judgment on the pleadings, files, statement of counsel, and the former opinion in this case.</p> <p>(Syllabus by Brewer, G.)</p>

Error from District Court, Texas County; R. H. Loofbourrow, Judge. Action by James R. Anderson against E. T. Guymon and others, copartners under the firm name of the Star Lumber Company. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Failure to Serve and File Briefs — Affirmance. Where plaintiff in error fails to serve and file briefs, as required by rule 7 of. this court (38 Okla. vi, 137 Pac. ix), or to excuse such failure, and the case has been submitted upon the petition in error with case-made attached, ’ the judgment of the trial court may be affirmed upon the ground of such failure.</p> <p>(Syllabus by Thacker, O.)</p>

<p> Error from District Court, Tillman County; Frank Mathews, Judge, </p> <p>Action by C. W. Howard against J. W. Richardson and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. CORPORATIONS — Mortgages—Transfer of Mortgage — Right— Presumption. The proviso, in section 2, art. 22 (Williams, see. 3491) of our Constitution, “that corporations shall not’ he precluded from taking mortgages on real estate to secure loans or debts,” does not limit this right to the taking of. mortgages directly and immediately firom the mortgagor, but also permits corporations to take the same for such purpose from the mortgagee or any subsequent holder.</p> <p>(a) A mortgage, as distinct from the debt it secures, is not a thing of value nor a lit subject of‘transfer; and, being only an incident or accessory of such debt, it will be presumed that, in a transfer of a note evidencing a debt and a mortgage securing the same, transfer of the note and debit preceded the transfer of the mortgage, so that in such case the mortgage is taken by the transferee to secure a debt.</p> <p>2. CORPORATIONS — Conveyance of Realty — Validity — Right to Question. A ■conveyance of real estate to a corporation in violation of section 2, art. 22 (Williams, sec. 349), of our Constitution, is not absolutely void, but merely voidable in its ordinary aspect's.</p> <p>(a) The state alone, ordinarily, can question the corporation’s right to hold under such conveyance.</p> <p>(Syllabus by Thacker, C.)</p>

<p> Error from Superior Court, Grady County; Will Linn, Judge. </p> <p>Action by J. M. Deal against C. M. Thompson. Judgment for defendant, and plaintiff brings error.'</p>

<p>Error from District Court, Johnston County; ' Robert M. Rainey, Judge.</p> <p>Action by School District No. 7 of Johnston County against T. L. Cunningham and others. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Muskogee County; Thos. W. Leahy, Judge. Action by Charley Hill against Charles P. Clark. Judgment for plaintiff, and defendant brings error. This action was begun by defendant in error against plaintiff in error in a justice of the peace court of Muskogee county.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Mollie Lewis against the Lynde-Bowman-Darby Company. Judgment for defendant, and plaintiff brings error. This was an action brought by the plaintiff in error for the purpose of having a judgment, theretofore rendered against the plaintiff in error, set aside on the ground of fraud in procuring the judgment.

Error from County Court, Garvin County; W. R. Wallace, Judge. Action by the De Yon Manufacturing Company, a corporation, against Wells Fargo & Co. Express and others. Judgment for defendants, and plaintiff brings error.

<p> Error from, County Court, Muskogee County; Thomas W. Leahy, Judge. </p> <p>Action by Fred Forrest, trading as the Forrest Hardware Company, against J. B. Hill. Judgment for plaintiff, and defendant brings error.</p>

<p>RAILROAD CROSSING ACCIDENT. Same as in St. L., I. M. & S. Ry. Co. v. O’Conner, 43 Oída. 208, 142 Pac. 1111.</p> <p>(Syllabus by Brett, 0.)</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by Jim Fitzpatrick and others against Lee May and others. Judgment for plaintiffs, and the Chicka-sha National Bank brings error.

<p>APPEAL AND ERROR — Case-Made—Service—Time. A case-made not served within the time fixed by an order of court is a nullity, and 'cannot be considered 'by the Supreme Court on appeal.</p> <p>(Syllabus by Dudley, C.)</p>

<p>1. TRIAL — Instrtuctions—Application to Case — Action for Assault. In an action for damages for an assault and battery, where the defendant interposes the defense of self-defense, and the court correctly instructs the jury on such defense, but does not include therein an instruction as to the effect of one withdrawing or attempting to withdraw from a difficulty which he has provoked, and there is no evidence that the defendant withdrew or attempted to withdraw from the difficulty after he provoked it, held, that the count did not err in failing to instruct the iury-upon that phase of the law of self-d'efense.</p> <p>2. APPEAL AND ERROR — Instructions—Request. Where an instruction is correct so far as it goes, and it is urged by the defendant that under his theory of the case additional instructions should have been given, reversal will not be had unless a supplemental instruction is requested by such defendant embodying such theory.</p> <p>(Syllabus by Dudley, C.)</p>

<p>1. APPEAL AND ERROR — Findings of Fact — Conclusiveness. Where an action at law is tried by the court without a jury, and special findings are made upon any controverted question of fact, su'ch findings are conclusive upon this court.</p> <p>2. PLEADING — Judgment on the Pleadings — Action on Oral Contract. Where in an action upon an oral agreement to pay rent the defendant answered by general denial, a motion for judgment on the pleadings is properly denied.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1'. WITNESSES- — 'Competency—Husband and Wife. In an action where husband and wife are joint parties, both are competent to testify.</p> <p>2. FRAUD — Proof—Necessity—Law and Equity. Fraud must be proved at law. In equity it suffices to show facts and circumstances from which it may be presumed.</p> <p>3. CONTRACTS — Performance—Tender—Waiver. Where the tender of performance of an act is essential to the establishment of any right against another party, such tender or offer to perform is waived, or becomes unnecessary when it is reasonably certain that the offer will be refused.</p> <p>4. APPEAL AND ERROR — Judgment—Evidence. Evidence exarn- ' ined, and held sufficient to sustain the judgment.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. EVIDENCE — Stipulations — Competency as Evidence — Special Agreement's. An agreed statement of facts on- oilier stipulations % counsel or attorneys as to matters of fact within the scope of their professional function bind .the party as a judicial admission, although made before issue joined, and are competent evidence against him, even on a second trial. Where these agreements are made to avoid continuances or for some other specific purpose, and a;e by their terms limited to a particular occasion or temporary object, they possess no force beyond the occasion or after the purpose has been accomplished.</p> <p>2. CONTRACTS — Capacity to Execute — Weak-Mindedness. Mere weak-mindedness, whether natural or produced by old. age, sickness or other infirmity unaccompanied by any other inequitable incidents, if the person has sufficient intelligence to understand ithe nature of the transaction, and is left to act upon his own free will, is not a sufficient ground to defeat the enforcement of an executory 'contract, or to set aside an executed agreement or conveyance.</p> <p>3. CONTRACTS — Interference by Court — Grounds. If a court can see thait there were no inequitable incidents, such as undue influence, great ignorance and want of advice, very inadequate price, and -the like, it will not interfere merely because one party possessed very much less intelligence than the other, nor because the transaction is not one which ithe court in all respects approves.</p> <p>4. INSANE PERSONS — Executed Contracts — Rescission—Conditions. Precedent. An executed contract for the sale of land, made by a weak-minded, ignorant, and even insane person, without fraud, or notice ito the vendee of the grantor’s insanity, and for a fail-consideration, will not be- set aside, either in law or in equity, in favor of the vendor or his representatives, unless the purchase money be restored, and the parties fully reinstated to the condition in which they were prior to the purchase.</p> <p>5. CONSTITUTIONAL LAW — Indians—Due Process — Alienation of Indian Lands — Removal of Restrictions. The original acts of Congress, treaties, and agreements, with the several tribes of Indians of the Indian Territory, which restricted the alienation of their lands, or any pant thereof, did not confer a vested right in such Indians to hold said lands free from alienation until the complete expiration and fulfillment of said acts of Congress, treaties, and agreements, with said Indians; and a subsequent act of Congress removing said restrictions upon alienation is not in violation of that part of the fifth amendment of the Constitution of the' United States which provides that no person shall be deprived of propei.% without due process of law. And held, further, that a citizen or ward of the government can acquire no vested rights in a statutory privilege, exemption, or disability, and the power which has a right to provide a restriction or disability also has the power to remove it.</p> <p><5. INDIANS — Indian Treaties — Right to Abrogate. The power exists to abrogate the provisions of an Indian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations of the treaty, but. may demand, in the interest of the country and the Indians themselves, that it should do so. When therefore treaties were entered into between the United States and a tribe of Indians, it was nver doubted that the power to abrogate existed in Congress, and that in a contingency such power might he availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the Indians.</p> <p>(Syllabus by Robberts, C.)</p>

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>In the matter of the final report of G. W. Spann, executor of the estate of J. E. Prather, deceased. Objections were filed to the report by Amanda. Moore, and from adverse findings of the county court, she appealed to the district court. From the judgment rendered by the district court, the executor brings error.</p>

<p>1. PLEADING — Objection—Introduction of Evidence. Where tlie sufficiency of a petition is challenged solely by an objection to the introduction of evidence 'thereunder, such objection, not being favored by the courts, should generally be overruled, unless there is a total failure to allege some matters essential ~to the relief sought, and should seldom, if ever, be sustained when the allegations are simply incomplete, indefinite, or conclusions of law.</p> <p>2. APPEAL AND ERROR — Presentation—Denial of New Trial. Where the plaintiff in error fails to assign as error the overruling of his motion for a new trial, the Supreme Court has no power to review errors alleged to have occurred during' the progress of the trial.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from District Court, Grant County; W. M. Bowles, Judge. </p> <p>Replevin by the Board of Commissioners of Grant County against Mike Nolan. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Custer County; James R. Tolbert. Judae. </p> <p>Action by A. L. Houilston and another, partners doing business as the Houilston Coal & Material Company, against the Board of Education of the City of Clinton. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. VENDOR AND PURCHASER — Venue—Vendor’s Lien — Action to Enforce — Waiver of Objection, (a) Where a statutory lien is sought against real property for the purchase price, the action can be maintained only in the 'county where the land is located. (b) But even though such a lien be sought' in an action hied in another county, if the defendant answens the petition and the action is treated as a personal action and tried out upon that theory, and a judgment in personam only is rendered, it is too late to urge afterwards that the action was one in rem, and the court has no jurisdiction.</p> <p>2. VENDDR AND PURCHASER — Option—Election to Buy — What Constitutes. Where defendant accepts a deed as security for a debt hut agrees to give $800 for .the land 4f it suits him after he inspects the land, if the defendant conveys the land to a third party before inspecting the same, then such act will be deemed an election to buy the land at $800.</p> <p>3. EVIDENCE — Best and Secondary — Writing Collateral to Issue. Where plaintiff’s ownership of 'the land was not one. of the issues in the case, it was not error to permit him to give oral testimony that he owned the land at the time he deeded it to defendant.</p> <p>4. VENDOR AND PURCHASER — Option—"Election to Purchase” —What Constitutes. When a party Is offered a tract .of land at a certain price and takes a deed to the same land as security for a loan, and agrees to buy the land if they can agree on the price, if the party conveys the land to a third party before they come to an agreement on the price, then the act of conveying the land to a third party will be deemed an “election to purchase” at the price at which the land was offered.</p> <p>5. SALES — Rescission. A party is not entitled to pay for property sold to another when, without cause, he retakes possession of the property.</p> <p>6. APPEAL AND ERROR — Judgment—Evidence. This court will not disturb a judgment based upon the verdict of a jury, where the evidence reasonably tends to support the same.</p> <p>(■Syllabus by Mathews. C.)</p>

<p>APPEAL AND ERROR — Presentation for Review — Denial of New Trial — Assignment of Error. Where plaintiff in error fails to assign as error, in bis petition in error, tbe overruling of a motion for a new trial, no auestion wbieb seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly presented to this court, and such alleged errors cannot therefore be considered. ,</p> <p>(Syllabus by Mathews. C.)</p>

<p> Error from District Court, Muskogee County; R. P. de Graffenreid, Judge. </p> <p>Action by Lanning & McRoberts against Muskogee County, Oklahoma. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by J. W. Seals against W. C. Patterson, Jr., and others. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by the R. D. Cole Manufacturing Company against the N. S. Sherman Machine & Iron Works. Judgment for plaintiff, and defendant brings error. This was an action on an account alleged to be due from the plaintiff in error to the defendant in error for $3,204.46.

<p> Error from District Court, Wagoner County; R. P. de Graffenreid, Judge. </p> <p>Action by J. E. Hildt against - A. ■ Sidney Hudson. Judgment for plaintiff, and defendant brings error.</p> <p>This was an action for ejectment and for damages for the detention of the land, and the facts are: The land in question was the allotment of one Yargee, a duly enrolled Creek Indian. On October 8, 1909, an order was made by the Secretary of the Interior removing- the restrictions on the alienation of this land, which order was to become effective simultaneously with the execution of a deed therefor- by the allottee to the purchaser. On the 9th day of May, 1910, Yargee and her husband, in compliance with the order, and under the direction and supervision of the Union Indian Agency at Muskogee, executed a deed for this land to Hildt. the plaintiff below. On November 7, 1908, Yargee executed to the defendant below, the plaintiff in error in this court, a lease of this land for agricultural purposes, for a term of one year, ending January 1, 1910, which lease contained no stipulation or agreement for a renewal or continuance thereof. This lease was duly recorded, and Hudson went into possession 'under it. On October 29, 1909, before the expiration of the lease, and while Hudson was in the possession of the land thereunder, Yargee executed to him another agricultural lease on this land for five years from January 1, 1910, which lease, therefore, expired January 1, 1915, or more than five years from its date. This lease was registered on November 1, 1909, and after the expiration of his lease for one year on January 1, 1910, Hudson continued in possession thereunder. The Secretary of the Interior did not approve the last lease for five years.</p> <p>The trial court held the lease for five years void, and directed it to be canceled, gave judgment in favor of the plaintiff, Hildt, for possession, and for the sum of $140 rents, and for costs. The defendant below brings the case to this court by petition in error and case-made.</p>

<p>APPEAL AND ERROR — Faile to File Brief — Reversal. Judgment reversed on account of the failure of the defendant in error to file ibrief.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal. Dismissed under rule 7 (38 Okla. vi. 137 Pac. ix) on account of plaintiff in error failing to file and serve brief, or to show any excuse for such default.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from County Court, Puwnee County; Frank Shoemaker, Special Judge. </p> <p>Action by W. R. Tucker against J. F. Fisher. From the judgment, Tucker brings error. -</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by Mary Coleman and another against H. Van Smith. From the judgment, Van Smith brings error.’</p>

<p> Error from District Court, Pontotoc County; Thomas D. McKeown, Judge. </p> <p>Action by First National Bank of Roff, Okla., a corporation, and others against Joe L. Thomas. From the judgment, Thomas brings error.</p>

<p>1. ACTION — Causes of Action — Joinder—Damages. Where a course of wrongful conduct results in injuries of a separate and distinct nature, the party injured is not required to file separate suits, but may recover all damages growing out o'f such wrongful conduct, regardless of any difference in the nature and character of the injuries sustained by reason of such wrongful conduct.</p> <p>2. APPEAL AND ERROR — Verdict—Evidence. Where the evi- • dence is conflicting, and the evidence of the prevailing party reasonably tends to support his contention, the verdict of the jury will not be disturbed.</p> <p>(Syllabus by Brett, C.)</p>

Error from District Court, Oklahoma County; George W. Clark, 'Judge. Action by the J. L. Owens Manufacturing Company, a corporation, against Jack Spain, sheriff; the Goodner Krumm Company, a corporation, being later substituted as defendant. Judgment for plaintiff, and defendant brings error.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by the T. J. Cannon Company, a corporation, against Ed L. Dunn and another, copartners. Judgment for plaintiff, and defendants bring error.

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield. Judge. </p> <p>Action- by Hans Studt against J. J. Dunning. Judgment for plaintiff, and defendant brings error.</p>

<p>1. EXEMPTIONS — Construction of Statute — Determination of Doubt. Exemption laws should b.e liberally construed in favor of the exemptions; and, where there is a doubt as to whether or not the property is exempt, the doubt should be resolved in favor of the exemption.</p> <p>2. EXEMPTIONS — Property Subject — “Provisions.” Chickens and ducks on hand or growing for home consumption are exempt under subdivision 15, sec. 3342, Rev. Laws 1910, providing “all provisions and forage on hand, or growing for home consumption, and for the use of exempt stock for one year.”</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action by M. J. McNulty against Oklahoma Union Traction Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by Pat Mclnteer against the Security State Bank of Enid, a corporation, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Presentation for Review — Pleadings. There being ample evidehce to sustain a judgment of the court on the theory on which the case was presented by the pleadings, and there being nothing in the record to show the contrary, the presumption is that the judgment was rendered on the theory presented by the pleadings, and the mere fact that during the trial of the ease the judge made some remarks evidencing his uncertainty as to whether the plaintiff’s pleadings presented the correct theory of their case, will not, in the face of evidence reasonably sustaining the judgment on the theory presented by the pleadings, warrant this court in assuming that such judgment was rendered on a theory of the case adopted by the court and entirely foreign to the pleadings.</p> <p>(Syllabus by Wilson, C.)</p>

<p>APPEAL AND ERROR — Review—Findings of Fatet — Presumption. Where the findings of fact of a referee are in the main based upon the issues joined by the pleadings, it must be presumed by the court, in the absence of the evidence from the record, that there was sufficient testimony introduced iat the trial to warrant the findings.</p> <p>(Syllabus by Robberts, C.)</p>

Error from State Board of Equalization; R. E. Gish, Referee. The assessed value of the property of the Central Light & Fuel Company, a corporation, for the year 1912, was raised by the State Board of Equalization, and the Company brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Dismissal—Affirmance. Where the plaintiff in error in a civil action fails to file briefs, as required by rule 7 of this court, the appeal or petition in error will be dismissed, or the case affirmed- by the Supreme Court.</p> <p>(Syllabus by Robberts, C.)</p>

<p> Error from County Court, Kay County; Claude Duval, Judge. ■ </p> <p>Action by Oscar McKimmey against John S. Mowatt. Judgment for defendant, and plaintiff brings error.</p>

<p>1. JUSTICES OF THE PEACE — Pleading—Bill of Particulars-The bill of particuars examined, and held to fairly state a cause of action.</p> <p>2. ABSTRACTS OF TITLE — Action Against Abstractor — Sufficiency of' Evidence. Evidence examined, and found to fairly sustain the allegations in the bill of particulars.</p> <p>3. JUSTICES OF THE PEACE — Pleading—Construction. Liberal rules of construction will be applied by this court in testing the sufficiency of a bill of particulars filed in a justice of the peace court'.</p> <p>4. TRIAL — Direction of Verdict — Evidence. When a defendant moves the court to instruct a verdict in its favor, the evidence must be considered in its aspects most favorable to -plaintiff’s contention; and if the evidence adduced, together with all the reasonable deductions and inferences to be legitimately drawn from it, fairly tends to prove plaintiff’s cause of action, the motion for an instructed verdict should be denied.</p> <p>(Syllabus by Watts, O.)</p>

<p>1. DAMAGE S — Mitigation—Question of Fact. In ia case involving application of the principle that a party whose property is endangered or injured by the act or omission of another must reasonably exert himself to prevent or lessen his damage, the question of whether or not such party, under the circumstances and in good faith, exercised ordinary care and diligence to that end is one of fact, to be determined by the jury, or court sitting as a jury.</p> <p>2. DAMAGES — Directed Verdict for Nominal Damages — Evidence. An instruction to return a verdict for nominal damages is erroneous in a case where the evidence establishes that the wrongful acts of- defendant caused ia substantial loss by plaintiff in an amount susceptible of ready ascertainment.</p> <p>(Syllabus by Bleakmore, G.)</p>

<p> Error from County Court, Grant County; J. W. Bird, Judge. </p> <p>Action by J. N. Jackson against John Zeiler. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by the Pioneer Loan Company against Austin R. Gourley and another. Judgment for plaintiff, and defendant named brings error.

<p>REPLEVIN — Demand—Exempt Property. A demland for the return of property before commencing a replevin action is not necessary, where tire original taking of the property was wrongful; as, where exempt property has been seized and sold under execution.</p> <p>EXEMPTIONS — Waiver—Execution of Chattel Mortgage. The execution of a chattel mortgage on property exempt to one not .the head of. a family under section 3345, Rev. Laws 1910, does not render such property subject to seizure and sale under execution issued on a judgment rendered on an unsecured debt.</p> <p>TRIAL — Submission of Issues — Evidence—Instructions. Where certain facts in issue in a cause are established by uncontro-verted testimony, it is not necessary for the trial court to submit such facts to the jury for finding, and it is not error for the •court to tell the juiw that such facts are established and to announce the law applicable to such facts and to direct the jury to find accordingly.</p> <p>(Syllabus by Galbraith, O.)</p>

Error from District Court, Greer County; G. A. Brown, Judge. Action- by the City National Bank against S. E. Kelly and another. Judgment for defendants, and plaintiff brings error. This was an action on a promissory note in the following form: “1,000.00. Hollis, Oklahoma, Nov. 23, 1910. “Dec. 1st. 1911, without grace, after date, for value received, we as principals promise to pay to the order of W. B. Denton one thousand and no-100 dollars at the Groves National Bank.

<p> Error from, County Court, Hughes County; J. Ross Bailey, Judge. </p> <p>Action by J. J. Pickens against the St.. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from, District Court, Caddo County; J. T. Johnson, Judge. Action by Andy Tinker and another against James Inkanish and another. Judgment for defendants, and plaintiffs bring error.

Error from Swperior Court, Custer County; T. W. Jones, Jr., Special Judge. Action by E. C. Ballew, a taxpayer, against W. A. Taylor and others, County Commissioners of Custer County, and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Washington County; R. H. Hudson, Judge. Action by David P. Thornton and others against Ida M. Nolen. From the judgment, the parties first mentioned bring error.

<p> Error from County Court, Blaine County; G. W. Ferguson, Judge. </p> <p>Action by A. B. Tusing against Otis Connor. From the judgment, Tusing brings error.</p>

Error from County Court, Ellis County; A. L. Squire, Judge. Action by Warren U. Laughliri and another against Owen F. Turner. From the judgment, the parties first mentioned bring error.

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by W. N. Hayes against A. F. Kee. From the judgment, Hayes brings error.</p>

<p> Error from Superior Court, Oklahoma County;' Edward Dewes Oldfield, Judge. </p> <p>Action by State of Oklahoma against D. M.. Blunk and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Atoka County; Robt. M.. Rainey, Judge. Action by G. C. Johnson against Wilson Isaac, guardian of Jim Isaac and another, minors. Judgment for defendant, and plaintiff brings error.

<p>1. APPEAL AND ERROR — Verdict—Findings—Evidence. A verdict, or findings of the jury, based 'upon evidence reasonably tending to support them, will iiot be disturbed on appeal.</p> <p>2. SAME. 'Where the evidence reasonably supports the judgment, it will not be weighed by the. Supreme Court for the purpose of determining if the p'.eponderauce thereof was not with the other party.</p> <p>3. APPEAL AND ERROR — Harmless Error — Effect. Under the •statutes, this court is required to disregard any error in the pleadings or proceedings which does not affect the substantial rights of the party appealing.</p> <p>4. SAME — Instructions. Where no oilier verdict could have been rightfully rendered, this court will not consider exceptions based on instructions given and refused.</p> <p>5. APPEAL AND ERROR — Judgment—Decision on Appeal. Where an examination of -the whole case shows that the verdict of the jury and the judgment of the Mal_ court is right upon (he merits, the judgment will not be reversed.</p> <p>ON PETITION FOB. REHEARING.</p> <p>6. TROVER AND CONVERSION — Measure of Damages. The measure of damages for the wrongful conversion of personal property in this state is the value of the property at the time of the conversion, with the interest thereon, from the time of conversion, at the rate of 6 per cent, per annum.</p> <p>(Syllabus by Robberts, C.)</p>

<p> Error from County Court, Bryan County; J. L. Rapp olee, Judge. </p> <p>Action by F. J. Longmeyer against J. W. Jones and another. Judgment for defendants, and plaintiff brings error.</p>

<p>LANDLORD AND TENANT — Premises Leased for Business Purposes —Implied Warranty — Repairs. In this jurisdiction there is no implied warranty that premises leased for business purposes are suitable to the uses for which they were demised, or that the . lessor will keep the same in repair.</p> <p>(Syllabus by Bleakmore, 0.)</p>

<p> Error from County Court, Bryan County; J. L. Ra-ppolee, Judge. </p> <p>Action by J. Henry Johnson against Isaac J. Rudi-sill. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from County Court, Washita County; L. R. Shean, Judge. </p> <p>Action by the K K K Medicine Company against J. A. Foust and others. From the judgment, the Medicine Company brings error.</p>

<p> Error from County Court, MeCurtain County; E. E. Cochran, Judge. </p> <p>Action by George Winkler against A. J. Waldock. Judgment for plaintiff, and defendant brings error.</p>

<p>INDIANS — Child of Choctaw Allottee — Descent and Distribution. Where an allottee of the Choctaw Tribe of Indians enrolled as a half blood died in December, 1906, intestate, leaving surviving her two children, aged, respectively, 18 and 11 months, and a hus-oana who was not a member of ’the tribe, her allotment descended, subject to the right of the husband by curtesy consummate, to said children in equal parts. Upon the death of one of said children, on May 9, 1907, his moiety was inherited by the either. Upon the death of the last child, on May 26, 1907, its estate in said allotment, being ancestral, ascended in the maternal line, whence it came, and passed to the nearest of kin to said child who were of the blood of its mother, regardless of the fact that such persons were not members of the tribe (applying sections 2522 and 2531, Mansfield’s Digest of the Daws of Arkansas).</p> <p>(Syllabus by Bleakmore, C.)</p>

<p> Error from District Court, Woodward County; James W. Steen, Judge. </p> <p>Action by A. K. Parsons against J. ■ E. Smith and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Cleveland County; R. McMillan', Judge. Action by R. S. Davis, as treasurer of Cleveland County, against the First State Bank of Norman, Okla., and another. Judgment for defendants, and plaintiff brings error.

Error■ from District Court, Adair County; John H. Pitchford, Judge. Action by A. Block and others against C. J. Crocker and others. Judgment for defendants, and plaintiffs bring error.

Error from, County Court, Carter County; W. F. Freeman, Judge. , Action by H. W. Spaulding and others against C. N. Howard and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from District Court, Craig County; Preston S. Davis, Judge. </p> <p>Action by Morris F. Knight against Lucy Clink-scales, administratrix of the estate of A. M. Clinkscales, deceased. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Garfield County; Dan Duett, Judge. </p> <p>Action by J. E. Gorton against Charles Freeman and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Kingfisher County; James B. Cullison, Judge. </p> <p>Action by W. J. Scritchfield against the Royal Insurance Company, Limited. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the AEtna Building & Loan Association of Las Vegas, New Mexico, against Louis A. Bush and another. Judgment for plaintiff, and defendants bring error. Plaintiff moves to dismiss.

Error from District Court, Muskogee County; R. P. de Graff enreid, Judge. Action by the Page Lumber Company, a corporation, .against Ira S. Lawrence and others. Judgment for plaintiff for less than claimed, and plaintiff brings error.

Error from District Court, Carter County; S. II. Russell, Judge. Action by Oscar Sampson and others, by B. F. Hin-shaw, their guardian, against S. A. Mason. Judgment for defendant, and plaintiffs bring error.

<p>1. JUSTICES OF THE PEACE — Appeal Bond — Breach. Where a party in an' action in the justice court perfects an appeal from a final judgment rendered against him therein to the county court, and such appeal is there dismissed, and the cause remanded to the justice court, ‘and an execution issued therefrom on the original judgment rendered therein and returned no property found, held, a breach of the terms and conditions of the appeal bond, rendering the principal and sureties thereon liable for the amount of the original judgment rendeied in the justice count, with interest and costs.</p> <p>2. SAME — Appeal—Judgment—Construction. The judgment of the county court examined, and held to be a dismissal of the appeal, and not of the cause of action.</p> <p>(Syllabus by Dudley, C.)</p>

<p>1. OFFICERS — Compensation—Imposition of Additional Duties. A public officer is bound to perform tire duties of bis office for tlie compensation fixed by law. This is true as to additional duties imposed upon the office by the Legislature after he enters upon his teim, provided such duties are germane to the office.</p> <p>2. COUNTSES — County Clerks — Compensation—Additional Duties-— Issuance of Hunting Licenses. Chapter 19, sec. 1, Scss. Laws 1905, put in force in the State of Oklahoma by section 18 of the Schedule of the Constitution, fixed the salary of the county clerks of the various counties of the state. The authority conferred upon county clerks to issue hunting licenses, under the act of the . Legislature approved March 8. 1909. (chapter 19, Sess. Laws .1909), are additional duties conferred upon the office of county clerk, and are germane to such office; and the fees authorized to be retained by clerks for issuing hunting licenses under section 9. art. 4, of such act should be accounted for by them, and they are not entitled to retain the. same as additional compensation for such services.</p> <p>3. QFFICERS — County Clerks — Emoluments of Office — Increase During Term. 'The salary of county clerks being definitely fixed by chapter 19, sec. 1. Sess. Laws 1905, and the duties imposed upon the office of county clerk under chapter 19, 'Sess. Laws 1909, being additional, the fees authorized to be retained under section 9, art. 4, of said act could not be retained by the clerks as additional'compensation, for to do so would violate section 10, art 23, of the Constitution, prohibiting the increase of the emoluments of an office during its term.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from. District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Action by Mattie L. Rose against George P. Anderson and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. MUNICIPAL CORPORATIONS — Ordinances -^Efl'eeh — Time. Section 3390, Rev. Laws 1910, provides that a city ordinance does not become operative until 30 days after its passage and approval. Held, that this does not render the ordinance void; and it cannot be treated as not in existence during that time, but. while it is inoperative,' yet the. effect and purpose of the ordinance is, from and after the date of its passage and approval, to take control of the subject of the ordinance.</p> <p>2. MUNICIPAL CORPORATIONS — Public Improvements — Rights of Property Owners — Laches. When money has been expended by a city for public improvements, and a property owner of the city sits silently by and allows the expenditures and improvements to lie made, with full opportunity to prevent its accomplishment, yet without taking legal steps to prevent the same, after the money has been expended, the improvements made, and the relations of propei ty and parties have been changed, it is then too late for • him to ask a court of equity to relieve against that which his own laches has permitted to be done.</p> <p>(Syllabus by Brett, 0.)</p>

<p>Error from County Court, Pittsburg County; W. T. Liedtke, Judge.</p> <p>Action by B. .F. Noah against John Elsing! Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Montie Vandeventer against John R. Robertson. Judgment for plaintiff, and defendant brings error. This was an action instituted by the defendant in-error to recover damages for the breach of a contract, which is hereinafter set out.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by the City of Lawton against E. E. Shipley. Judgment for plaintiff, and defendant brings error. This action was begun against the plaintiff in error, and the sureties on his official bond, as treasurer of the city of Lawton, alleging; in substance, that the city council, on October 13, 1909, passed an ordinance granting to the Lawton & Ft.

<p>1. APPEAL AND ERROR — Assignments of Error — Sufficiency. Assignments of error contained in the petition in error which are so indefinite as not to point out the errois complained of cannot he made Ote basis for a different assignment of error in the brief to point out the alleged error. ' .</p> <p>2. APPEAL AND ERROR — Instructions — Request — Exceptions. Where the court has given general instmotions to the jury which are not excepted to, it is not ground for reversal that it did not give a special instruction when it is not requested to do so.</p> <p>3. . APPEAL AND ERROR — Change of Contention. A party cannot try his case in the trial court on one theory, and then ask a reversal of the judgment in this court on á theory not presented to the trial court and not raised by the pleadings.</p> <p>4. APPEAL AND ERROR — Verdict—Evidence. Where the verdict of the jury is supported by evidence, and approved by the trial court in an action at law. this court will not review it.</p> <p>5. APPEAL AND ERROR — Harmless Error — Examination of Witnesses. While it is not proper to ask a witness, on rebuttal, if the testimony of another witness is true, yet this is harmless error, unless it appears from the record that such question has probably resulted in á miscarriage of justice. Rev. Laws 1910, see. 6005.</p> <p>(Syllabus by Devereux, C.)</p>

<p> Error from District Court, Haskell County; W. H. Brown, Judge. </p> <p>Action by the Farmers’ & Merchants’ Bank, a corporation, against W. F. Freeman and another. Judgment for defendants, and from an order granting a new trial defendants bring error.</p> <p>This action was brought on a promissory note given by the plaintiffs in error to the defendant in error, and to foreclose a mortgage given to secure such note. The petition is in the usual form, and the answer, which is unverified, was a general denial and a plea of payment. There was evidence on both sides of the issue as to the payment, and the jury found a verdict for the defendants. Within the time allowed by statute the plaintiff in the court below filed its motion for a new trial, as follows:</p> <p>“(1) Because the verdict of the jury is not sustained by sufficient evidence;. (2) because the court erred in admitting evidence on the part of the defendants over the objections of the plaintiff; (8) because the plaintiff was surprised at the nature of the defense interposed by the defendants at the trial; in the way of payment of the note sued on, which ordinary prudence could not have guarded against; (4) because of newly discovered evidence, material to plaintiff’s cause, which plaintiff could not, with reasonable diligence, have known at the time of the trial; and (5) for other good and sufficient reasons.”</p> <p>The court sustained this motion, and the order sustaining the same is as follows:</p> <p>“Whereupon the court, upon hearing said motion for a new trial and the evidence offered in support thereof, and being fully advised in the premises, sustains said motion for a new trial, upon condition that plaintiff pays the cost of suit accrued to date.”</p> <p>Exceptions were duly saved, and the defendants below bring the case to this court by petition in error and case-made.</p>

Error from County Court, Stephens County; W.~ H. Admire, Judge. Action by the J. Floersheim Company, a corporation, against the Comanche Mercantile Company, a corporation. Judgment for plaintiff, and defendant brings error.

Error from District Court, Logan County; A. H. Huston, Judge. Action by Frank Dale and another, partners as Dale & Bierer, against the Board of Education of the City of Guthrie. Judgment for defendant, and plaintiffs bring error.

<p>Error from County Court, Grant County; J. W. Bird,. Judge.</p> <p>Action by Peter Hull against Henry Mott and another. Judgment for plaintiff, and defendants bring error.</p>

Error from County Court, Caddo County; C. Ross Hume, Judge. Action by T. J. Hiner against the Washita Valley Rank. Judgment for defendant, and plaintiff brings error. This is an action brought by plaintiff in error, hereinafter called plaintiff, against defendant in error, hereinafter called the bank, to recover upon a protested check drawn by one Luce upon said bank in favor of plaintiff.

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by the Board of County Commissioners of Creek County against C. A. Vaughn and others. Judgment for defendants, and plaintiff brings error.</p> <p>This is an action brought by plaintiff in error, hereinafter called county commissioners, to recover of defendants in error, hereinafter designated defendants, upon a '.'bond executed by them in the following words and figures:</p> <p>“I, C. A. Vaughn, duly appointed by the board of 'county commissioners of Creek county, Oklahoma, justice •of the peace in and for Sapulpa township, Creek county, ..'State of Oklahoma, as principal, and James McAllister •and A. P. Crawford, as sureties, do hereby jointly and •¡severally agree to pay, on demand, to each and every person who may be entitled thereto, all such sums of money -•as the said justice of the peace may become liable to pay on account of any moneys which may come into his hands Iby virtue of his office.</p> <p>“Witness our hands this 12th day of October, 1908.</p> <p>“C. A. Vaughn, Principal.</p> <p>“James McAllister,</p> <p>“A. P. Crawford, Sureties.”</p> <p>In said action it is sought to recover the - sum of "$1,881.80, averred to have been wrongfully allowed by ■•said county commissioners to the principal in said bond, fC. A. Vaughn, as justice of the peace. The averments ■<of the petition show the amounts, alleged to have been "wrongfully allowed by the county commissioners and wrongfully collected by said justice of the peace, were allowed by said commissioners upon statements rendered Iby said justice of the peace, and that said amounts so allowed were in excess of any amounts allowed by law, and in part said allowances were made upon accounts not .properly itemized. Defendants demurred to the petition, upon the ground that it failed to state a cause of action, which demurrer was sustained by the court, to which the county commissioners duly excepted, and elected to stand -upon said petition, and judgment was rendered for defendants. To reverse said judgment this appeal isr, prosecuted.</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by George Roberts against F. W: Casner and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. APPEAL AND ERROR — Presentation Below- — Evidence. Where evidence is material, competent, and relevant under the issues, but is improperly brought out on cross-examination, in order to present error on appeal, upon the ground that it was improper cross-examination, it must be shown that its introduction was objected to on this ground.</p> <p>2. APPEAL AND ERROR — Trial—Discretionary Ruling — Order of Proof. The question of the order merely in which testimony shall be produced at the trial is often largely within the sound discretion of the trial judge. The action of the court in permitting a party to introduce evidence out of its order, under the general rules for the production of evidence, when in the interest of justice, or the convenience of the parties and the court in the 'efficient dispatch of business, will not be disturbed, unless if is clearly shown that such discretion has been grossly abused.</p> <p>3. ACCOUNT STATED — Admission—Failure to Object — Question for Jury. Where one party sends to another, with whom dealings have been had, a statement of account, showing the balance claimed to be due, and such statement is received by such party, but is not replied to or objected to within a reasonable time, such acquiescence and failure to object is taken as an admission that the account has been correctly stated; and what is a rea- ■ sonable time in such connection is ordinarily a question for the jury to determine under all the circumstances of the case, considering the nature and volume of the business, the character and number of the transactions involved in the account, the distance of parties from each other, and the means of communication between them.</p> <p>(■Syllabus by Brewer, C.)</p>

<p>FRAUDS, STATUTE OF — Parol Lease. A parol lease of real property for tlio period of one year 01 less does not come within the Statute of frauds (section 911, Rev. Laws 1910), regardless of whether the term of the lease commences in praesenti or in futuro.</p> <p>(Syllabus by Biewer, C.)</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by J. L. Courtney against W. L. Moore and others. Judgment for defendants, and pjainitiff brings error. On motion to dismiss.

Error from District Court, Wagoner County; R. C. Allen, Judge. Action by M. F. Steil and another against Winnie Jones and others. Judgment for defendants, and plaintiffs bring error.

<p>1. DBFiDS — Inadequacy cl Consideration — Fraud. Ordinarily mere inadequacy of consideration is not sufficient ground, in itself, to justify a court in conceling a deed, yet when tbe inadequacy is so gross as to amount to fraud, or in tbe absence of other circumstances to shock the conscience.. _ and furnish satisfactory and decisive evidence of fraud, it will be sufficient ground for canceling a conveyance or contract, either executed or executory; the rule being based upon the theory that fraud, and -not inadequacy of price, is the sole reason for the interposition of equity.</p> <p>2. SAME. Whenever it appears that the parties to a trade have knowingly and deliberately fixed upon any price, however great, or however small, there is no occasion nor reason for interference by courts, for owners have a right to sell property for what they please: but where there is no evidence of such knowledge, intention, or deliberation by the parties, the disproportion between •the value of the subject-matter and the price may be so great as to wairaut the court in inferring therefrom the fact of fraud.</p> <p>3. ATTORNEY AND CLIENT — Contracts—Construction. Where a contract is entered into between a lawyer and another person, and the latter 'looks to and depends upon the former for counsel and advice, especially where such other person is extremely iinio: ant, and practically of no business experience, and a disagreement arises as to the terms and conditions of such contract, every presumption should he against the lawyer, -and if it appears that the contract is ambiguous and uncertain, that construction should be given it which tends most strongly against the lawyer.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. CHATTEL MORTGAGES — Breach of Conditions — Petition. It is not error to overrule a general demurrer to a petition in replevin, urged because the petition does not specifically allege conditions of chattel mortgage broken,, when there is a copy of the moitgage attached to the petition which shows on its face that conditions therein have been broken.</p> <p>2. CHATTEL MORTGAGES — Defective Filing — Effect—Rights of Mortgagee. Under section 4031, Rev. Daws 1910, which makes a chattel mortgage void as against creditors of the mortgagor, and subsequent purchasers and .incumbrancers of the property for value, unless the mortgage “be filed by depositing the same in the office of tire register of deeds of the county where the property mortgaged, or any part theieof, is at such time situated," held, that the mortgagee has done all the law requires of him when helms filed the mortgage by depositing in the office of the register of deeds; and, if the instrument is not then properly recorded, and indexed, it is the fault of the register of deeds, and the mortgagee will not lose his rights, nor be made to suffer by reason of the laches of the register of deeds.</p> <p>3. ACKNOWLEDGMENT — Sufficiency. The sufficiency of the acknowledgment of a chattel mortgage is not to be tested by section 1179, Rev. Laws 1910, which prescribes a form for acknowledgment of instruments “affecting leal estate,’’ but must be tested by section 4036. Rev. laws 1910, which only requires such an acknowledgment to chattel mortgages as will attest and identify the signature of the mortgagor.</p> <p>4. SAME — Construction—“The Same.” In a notary’s certificate of acknowledgment of a chattel mortgage in the following form: “Before me, a notary public within and for the county of Atoka, State of Oklahoma, personally appeared A.- M. Smith, a person well known to me to be the person who executed the same, fo>-the purpose and consideration therein mentioned and set out, and, I do hereby so certify” — appearing on same paper with the mortgage, and following the signature of A. M. Smith, the mortgagor, and bearing the same date of the mortgage, held, that the phrase “the same” must refer to the mortgage, and should be construed as though the words “this instrument” had been used instead of the phrase “the same.”</p> <p>5. TRIAL — Proceedings—Stenographic Record. Section 1786, Rev. Laws 1910, which provides that all statements of witnesses, the court, or counsel, made during the trial of a cause, and all other matters that might properly be a part of the case-made for appeal or. proceedings in error, must be .taken .down by . the stenographer when requested, and that a refusal of the court to permit this to be done is reversible error, confines the matters that counsel may demand to be taken down to such matters as “might properly be made a part of the case-made, for appeal or proceedings in error-,” and has no reference whatever to matters or remarks foreign to the case being tried.</p> <p>I Syllabus by Brett, C.l</p>

<p>1. MONEY RECEIVED — Petition—Sufficiency. The petition set. out in the record states a cause of action for money had and received, and a geneial demurrer thereto was properly overruled.</p> <p>2. CONTRACTS — Money Received — Attorney’s Fe~ — Implied Contract — Right of Action — Defense. In an action for divorce the plaintiff made a contract with three law} ers that she would pay them as fee an amount equal to 331-3 per cent, of the value of all property that might he awarded her 1)}' the court as alimony, or Ijy settlement. She seemed a divorce, and 'a settlement of property of the probable value of $100,090, and paid the fees to one firm of the attorneys, as she had agreed to do in the con-trae!'. Held, that an notion ,may he maintained by the other attorney against his associates for an accounting in the form of an action for money had and received, and that such action is not based upon the contract with the client, lmt/ upon an implied ■ contract with the attorneys collecting* the fees to account to him for his part. And held, further, that it is no defense to such action to say that the contract'under which the fees were collected was contrary to public policy and void.</p> <p>3.. ATTORNEY A^D CLIENT — Money Received — Defense. An attorney admitted to practice in the United States court for the Indian Territoiy prior to statehood was eligible to be admitted to the roll of attorneys of this court, and. although lie had not been so enrolled at the time of entering into a fee confraet with a client, his associate counsel who collected the fee cannot defend an action against him for an accounting on the ground that such attorney had not been duly enrolled as an attorney of this court.</p> <p>(Syllabus by Galbraith,. G.)</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by Jerry Bunn, administrator of the estate of Frances Bunn, against the Sun Accident Company, a corporation, and others. Judgment for plaintiff, and defendants bring error. This action was brought on a policy of insurance, whereby' the Sun Accident Company agreed to pay the plaintiff’s intestate certain sums as sick benefit, and also a certain sum in case she died.

Error from County Court, Bryan County; Jesse Hamilton, Judge. ' Action by Ed S. Bennett against Sam Dane. Judgment for plaintiff, and defendant brings error. This action was begun in the court of a justice of the peace for Bryan county, and taken by appeal to the county court.

<p> Error from District Court, Kay County; Wm. M. Bowles, Judge. </p> <p>Action by Dosia Sodowsky against Clarence Sodow-sky. Judgment for defendant, and plaintiff brings errsr.</p>

<p>FRAUDULENT CONVEYANCES — Conveyance of Land — Relation — Proof of Fraud — Scope of Inquiry. The first and second paragraphs of the syllabus in Wimberly v. Winnstock, 43 Okla. 615, 149' Pac. 238, are adopted as the syllabus in this case.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action by A. E. Nichols,.as Treasurer of School District No. 51 of Noble County, against I. A. Crigler, as County Clerk of Noble County. Judgment for plaintiff» and' defendant brings error.</p>

Error from District Court, Murray County; R: McMillan, Judge. Action by Geo. H. Pierce and others against D. F. Ellis and others. From the judgment, the parties first mentioned 'bring error.

<p>NEGLIGENCE — Direction of Verdict — Evidence. In a suit based on negligence, the court should submit the case to the jury, unless the evidence produced, together with all reasonable deductions and inferences to be fairly drawn therefrom, entirely fails to show negligence upon the part of defendant. If the evidence fails entirely to show negligence, then the court should instruct a verdict in favor of defendant.</p> <p>(Syllabus by Brewer, O.)</p>

<p>APPEAL AND ERROR — Case-Made—Making and Serving — Extension of Time. An order granting an extension of time, made after the expiration of the time originally granted for making and serving a case-made, is void, and presents nothing to this court for review.</p> <p>(■Syllabus by Brewer, C.)</p>

<p>1. EXEMPTIONS — “Trade”—Butchering. The art of butchering animals and preparing and cutting the carcasses into suitable portions for the retail trade, and for the convenient uses of the household, is a “trade,” within the purview and meaning of subdivision 5 of section 3342, Rev. Laws 1910, relating to exemptions.</p> <p>2. SAME — Property Subject — “Tools and Apparatus.” Knives, saws, meat blocks, meat racks, scales, pans, a sausage mill, an ice box, etc., when necessarily used in the conduct of a butcher shop by the owner thereof, who is the head of a family and a resident of this state, and who is a practical and skilled butcher, pursuing that trade or calling for a livelihood, are exempt as ‘‘tools and apparatus” of the butcher’s trade, under the laws of this state.</p> <p>3. EXEMPTIONS — Construction of Statutes.. Exemption laws should always receive a liberal construction.</p> <p>(Syllabus by Brewer, C.)</p>

<p>1. RAILROADS — Trespassing Animals — Liability for Killing — Negligence — Presumption. In an action against a railway company •for killing trespassing animals, negligence will not be presumed, in the absence of statute, from the mere fact of accident, which is as consistent with the presumption that it is unavoidable as it is with negligence.</p> <p>2. SAME — Killing at Crossings. In the absence of negligence, a railway company is not liable for animals injured or killed, when they come upon the track at a place where it is not required by law to be fenced, such as railway crossings.</p> <p>3. SAME — Direction of Verdict — Evidence. In an action against a ‘íailway company for the negligent killing of stock, where the plaintiff’s right of recovery depends upon defendant’s negligence, and where there is no evidence tending to prove negligence, and no circumstances from which negligence might be reasonably inferred, it is the duty of the court to direct a verdict in favor of defendant.</p> <p>(Syllabus by Brewer, O.)</p>

Error from District Court, Delaware County; John H. Pitchford, Judge. Action by Weatherford Beck against T. W. Linam and another. Judgment for plaintiff, and defehdants bring error. This is an action' to remove cloud from title to and recover possession of certain lands described in the petition in this cause, brought by defendant in error against plaintiffs in error. For convenience, the parties will hereafter be referred to as they appeared on the docket of the trial court.

<p> Error from County Court, Tillman County; W. C. Lukenbill, Judge. </p> <p>Action by John E. Williams against W. S. Woodyard. From the judgment, Williams brings error.</p>

(Syllabus by Rittenhouse, C.) Error from District Court, McCurtain County; ' Summers Hardy, Judge. Petition by Palo A. ■ Roberts, to dismiss W. J. White-man, Guardian of Ben Moore and others, minors. From judgment for defendant W. J. Whiteman on appeal to the district court, petitioner brings error.

<p>Error from District Court, Woodward■ County; James .W. Steen, Judge.</p> <p>Action by Ella Allen against the Gerlach Bank, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Err or from Superior Court, Custer County; J. W. La/ivter; Judge. </p> <p>Action by the State, for the use and benefit of Custer County, Okla., against Pidge Decker and others. Judgment for defendants, and plaintiff brings - error.</p>

<p> Error from District' Court, Coal County; Robt. M. Rainey, Judge. </p> <p>Action by Mose Burris against Albert Leet and another. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Case-Made—Time for Making and Serving— Dismissal. Where a case-made was not served until after the extension of time fixed by a valid order of the court had expired, the same is null and void, and the appeal will be dismissed.</p> <p>(Syllabus by Watts, C.)</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by S; J. Carpenter against A. J. Silverwood. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by Henrietta Loengrich against the Larimore Hardware Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by J. P. McLane against Robert Galbreath. Judgment for plaintiff, and defendant .brings error.</p>

Error from, District Court, Ottawa County; Preston S. Davis, Judge. Action by Charles Thomas, as administrator of the estate of Sequoyah B. Thomas, deceased, against Nancy A. Glenn, as administratrix of the estate of Samuel C. Glenn, deceased, and others. Judgment for defendants, and plaintiff brings error.

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by the Adams Engineering & Blueprinting Company against the Oklahoma City Land & Development Company and others. Judgment for plaintiff, and the defendant named brings error.

<p>JUDGMENT — Bes Judicata — Judgment Not on Merits. Where one brings an action upon municipal warrants, and judgment is entered against him on the single ground that, he has misconceived his .remedy or form of action, such judgment is no bar to a subsequent action brought in the proper form; he having lost other than upon the merits.</p> <p>(Syllabus by Dudley, O.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge, Action by John R. Wright and wife against the City of Oklahoma City, a municipal corporation. Judgment for plaintiffs, and defendant brings error.

<p> Error from County Court, Carter County; W. F. Freeman. Judge. </p> <p>Action by L. O. Majors against L. E. Harmon & Son. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from, District Court, Muskogee County; R. P. de Graffenried, Judge. </p> <p>Action by the Atlas Supply Company, a corporation, against H. F. Blake. Judgment for defendant, and plaintiff ' brings error.</p>

<p> Error from District Court, Bryan County; - Summers Hardy, Judge. </p> <p>Action by Rockwell Bros. & Co., a corporation, against J. S. Keatley and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Coal County; Jesse M. Hatchett, Judge. Action by V. Bonham and another against Nick Par-ris and another. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Wagoner County; W. T. Hunt, Judge. </p> <p>Action by the National Bank of Commerce, a corporation, successor to the Bank of Commerce, against the First National Bank of Coweta. Judgment for defendant, and plaintiff brings error.</p>