Volume 52 — Oklahoma Reports

<p>CARRIERS—Shipment of Stock—Negligence—Evidence—Direction of Verdict. In an action by a shipper against a carrier for damages resulting from the negligent handling of stock, when the evidence fails to show any negligence on the part of the carrier, held, error for the trial court to refuse a peremptory instruction to the jury to return a verdict for the defendant.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. INSANE PERSONS—Voidable Conveyance—Mental Deficiency of Grantor—Statu Quo. A deed of a feeble-minded person who has not been adjudged incompetent, and who is not shown to be entirely without understanding, at the time of its execution, is-not void, but only voidable; and, in the absence of fraud, before-the real estate can be recovered, the purchaser must be placed in statu quo.</p> <p>2. SAME—Evidence—Adjudication of Incompetency. An order of a county court, adjudging a person incompetent who had, previous to such order, transferred real estate, is competent, in a subsequent action in a district court to recover the real estate, to show that that action was properly brought by his guardian, but a special finding by the county judge that he was an imbecile-from birth is not admissible.</p> <p>3. TRIAD—Instructions—Exceptions. A general exception to each and every paragraph of the court’s charge is too general, and avails the party taking such exception nothing. Exceptions to instructions must specify the. instructions objected to. and thus afford the couit an opportunity to correct the vice in the instructions complained of.</p> <p>(Syllabus by Brett, G.)</p>

<p> Error from District Court, Tulsa County; L. M. Poe. Judge. </p> <p>Action by George C. Probst against John 0. Mitchell and another. Judgment for plaintiff, and defendants bring error.</p> <p>This action was commenced on the 20th day of July, 1912, by the defendant in error against the plaintiffs in error, praying for the cancellation of a certain oil and gas lease made by Probst to the said Mitchell and Brown on November 10, 1910. It is alleged in the petition that Probst executed a lease on certain lands in Tulsa county, Okla., and that the said lease contained the following provision and condition, to wit:</p> <p>“That, if a well is not drilled on said premises within one year from date hereof, then this lease and agreement shall be null and void, unless the party of the second part, within each and every year in advance^ after the expiration of the time above mentioned for the drilling of a well, shall pay a rental of $2.50 per acre for the first year and $5.00 per acre thereafter for every year it is not canceled, until a well is drilled thereon or until this lease is canceled as hereinafter provided.”</p> <p>It is further alleged in the petition that the defendants did not drill the well within one year, and, furthermore, that they neglected and defaulted in the payment of $2.50 per acre, or the sum of'$25, which became due on November 1st.</p> <p>The plaintiffs in error answered, admitting the execution of the lease, and admitting that they had not drilled the well within the year, and alleging that the lessor had constituted the Central National Bank of Tulsa his agent for the collection of the rentals, and that they had paid to the Central National Bank, for the use and benefit of said lessor, on the 7th day of December, 1911, the sum of $25, which had been placed to the account of the lessor in said bank. To this answer the defendant in error replied by verified general denial, and specifically denied that’ the Central National Bank of Tulsa was his agent for the collection of the rentals.</p> <p>The evidence on behalf of the plaintiff was that no well had been drilled on the land, and that the rent was not paid when due on November 1, 1911; that he called at the Central National Bank about the 3d or 4th of November, 1911, and was informed that no money had been paid there for him, and about December 3rd or 4th he made a like inquiry, with the same result; that on December 7, 1911, the plaintiffs in error deposited $25 to the defendant in error’s credit, which it. appears was for the rent due on November 1, 1911, and on December 5, 1912, a deposit of $50 was made in said bank to defendant in error’s credit, but there is no evidence in the record that the defendant in error ever received this money, or ratified its payment to the bank, or knew of it until in May, 1912 (the record is silent as to whether he had such knowledge before serving the notice of forfeiture), and there is no evidence that the bank was Probst’s agent, except the provision in the lease that:</p> <p>“All rentals and other payments may be made direct to the party of the first part, or may be deposited to his credit in the Central National Bank.”</p> <p>There was also evidence that on May 27, 1912, the defendant in error served notice on the lessees declaring the lease forfeited for failure to perform the conditions of the lease by either drilling a well or paying the rent. There was no evidence that the lessees had ever taken possession under the lease. The defendants in the trial court demurred to this evidence, which demurrer was overruled, and, they declining to proceed further, judgment was rendered against them, and they bring the.case to this court by petition in error and case-made.</p>

<p>1. SHERIFFS AND CONSTABLES—Fees—Services as Guard-Insane Persons. A county is not liable to a deputy sheriff for $3 per day for services as guard while conveying persons adjudged insane to the State Hospital for the Insane.</p> <p>2. COUNTIES—Claim Against County—Acceptance of Part Payment. A person presenting a claim against a county,’ a part of which was allowed and a part disallowed, who accepts a warrant for the part of the claim allowed, cannot thereafter maintain a suit against the county for the part of the claim disallowed.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. EVIDENCE — Parol — Proceedings of County Commissioners. "Where it is shown that the record and files of the county commissioners’ proceedings are not complete, and even in the absence of any record having been made of what was actually done, parol testimony is competent to show the facts, and prove that which actually took place, except as to those matters which the statute specifically requires to be recorded.</p> <p>2. ESTOPPEL—Laches—Highways—Counties. Where a county has accepted and used other lands for road purposes in lieu of the section line for 14 years, and valuable improvements have in good faith been erected on the section line, the county is estopped to say the road which it selected, worked, and used during all those years is not a public highway, and was not accepted in lieu of the section line, and cannot divest the other party of his improvements without compensation.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from County Court, Wagoner County; W. T. Hunt, Judge. </p> <p>■ Action by S. S. Webster against John Robinson.. •Judgment for defendant,- and plaintiff brings error.</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by M. A. Leftwich against George H. Foster and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. USURY—Contracts—Validity. The statute of this state does not make a contract, tainted with usury, absolutely void.</p> <p>2. CHATTEL MORTGAGES—Replevin by Mortgagee—Issues. In an action in replevin, like the case at bar, the only question in issue is the mortgagee’s right to the possession of the property covered by the mortgage, and the amount due on the notes is only incidentally involved.</p> <p>3. SAME—Possession of Property—Right. If anything is due on notes secured by a chattel mortgage, and the terms of the same have become broken, the mortgagee would be entitled to the possession of the mortgaged property.</p> <p>4. USURY—Defense—Failure to Plead—Waiver. The defense of usury is a privilege extended by the statute which can be either claimed or waived, and in order to be available to those who desire to claim the privilege extended, it must be specifically pleaded, and, if not so pleaded, it will be deemed wáived.</p> <p>5. SAME—Presentation by Demurrer. The defense of usury cannot be raised by demurrer to a petition which declares upon h ' usurious contract.</p> <p>(Syllabus by Mathews, 0.)</p>

<p>1. DURESS. It is provided by Rev. Laws 1910, see. 900, that duress consists in: (1) Unlawful confinement of the person of the . party, or of the husband or wife of such party, or ofi an ancestor, descendant, or adopted child of such party, husband or wife; (2) unlawful detention of the property of any such person; or (3) confinement of such person, lawful in form, but fraudulently obtained, or fraudulently made, unjustly harassing or offensive.</p> <p>2. APPEAL. AND ERROR—Ground , for Reversal—Instructions— Duress. Where the defense to a contract was that it was obtained by duress, and the court instructs the jury that the word “duress” means such a powerful influence and dominion over another as to take away free agency, and destroy the power of withholding assent in a person of ordinary firmness, held reversible error, especially where an instruction was requested in the words of the statute.</p> <p>3. DURESS—Decisions from Other States. What constitutes duress in Oklahoma is provided by statute, and authorities from other states having no such statute have no application.</p> <p>(Syllabus by Devereux, O.)</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by B. B. Ives against Cora B. Coblentz. Judgment for plaintiff, and defendant brings error.</p>

<p>1 EVIDENCE—Action for Rent—Counterclaim—Damages—Opinion Evidence. O. rented from U. the lower story of a building in the city of El Reno, in which 0. conducted a mercantile business. Afterwards U. rented to another the upper story of said building, which was used as a gambling establishment. . U. brought an action against C. to recover the agreed rents for said store building, and 0. sought to defeat such action by a counterclaim for damages, by reason of the maintenance of said gambling establishment, but failed to offer any evidence to show how and to what extent he had thereby been damaged, but testified that it was his opinion that he had been thus damaged. Held, that his opinion as to the damage thus suffered by him was not legal evidence upon which to predicate his attempted counterclaim.</p> <p>2. APPEAL AND ERROR—Trial—Harmless Error—Instructions. Where the evidence is in conflict as to the time when notice was given by the tenant to the landlord of the existence of a gambling establishment over a place of business rented by such tenant from said landlord, it is error for 'the court to instruct the jury as to the time when such notice was given; such instruction being an invasion of the province of the jury. But where the tenant, as in the instant case, fails to offer legal evidence as to any damage suffered by him, such instruction is harmless.</p> <p>(Syllabus by Collier, O.)</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeoion, Judge. </p> <p>Action by Mattie Hass against A. M. Gregg. Judgment for defendant, and plaintiff brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Laura Parks and others against Wiley Haynes and othets. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Wagoner County; G. F. Waggoner, Special Judge. </p> <p>Action by the Wagoner Telephone Company against J. C. Vermillion. Judgment for defendant, and plaintiff brings error.</p>

<p>LIMITATION OF ACTIONS—Nature—What Law Governs. Statutes of limitations are generally considered as municipal regulations founded on local policy, which have uo coercive authority abroad, and with which foreign jurisdictions have no concern, and hence the general rule is that in respect to the limitation of actions the law of the forum governs.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from District Court, Creek County; Jesse M. Hatchett, Assigned Judge. Action by the State, on the relation of J. D. Lank-ford, Bank Commissioner, and another, against H. C. Miller. Judgment for plaintiffs, and defendant brings error. This was an action on a promissory note, dated June 13, 1910, executed by A. C. Frompton, Sig. C. Richey, and H. C. Miller, to the Dingman Investment Company, due December 13, 1910.

Error 'from County Court, Osage County; Chas. E. Kmg, Judge. Action by C. L. Harris against the Osage Mercantile Company and another. Judgment for defendants, and from an order granting a new trial they bring error.

<p>1. MASTER AND SERVANT—“Permanent Employment.” “Permanent employment” ordinarily means employment for an indefinite period, which, in th.e absence of some special consideration, may be arbitrarily severed at any time by either party.</p> <p>2. SAME—Right to Terminate. Even though the employment be for some definite term, either party may terminate the same at any time, if sufficient cause exists for such action.</p> <p>S. MASTER AND SERVANT—Compensation—Recovery for Overtime. -It is a settled rule of law. that compensation for work, within the scope of one’s duties which ho was employed to perform, in addition to the usual, but not fixed, hours for a day’s work, cannot bo recovered for. in the absence of a contract therefor, or a showing that the usual and coni rolling custom was to receive pay for such overtime work.</p> <p>(Syllabus by Mathews, C.)</p>

<p>CHATTEL MORTGAGES—Failure to Release—Penalty—Application of Statute. Section 4408, Comp. Laws 1909, providing a forfeiture of $100 for the failure to release a mortgage, which has been satisfied, deals exclusively with recorded mortgages, and does not apply to chattel mortgages which are by law merely required to be filed.</p> <p>(Syllabus by Rtttenhouse, C.)</p>

<p>Error from District Court, Muskogee County; - R. P. de Graffenried, Judge.</p> <p>Action by J. N. Allen against N. M. Doneghey and others. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Kingfisher County; James W. Steen, Judge. </p> <p>Action by the Board of County Commissioners of Kingfisher County against Stephen Eads. Judgment for defendant, and plaintiff brings error.</p>

<p>1., APPEAL AND ERROR—Harmless Error. The court in every stage of action must disregard any error or defect in the plead--ings or proceedings which does not affect the substantial rights ' of the adverse party; and no judgment shall be reversed or affected by reason of such error, or defect.</p> <p>'2. SAME—Affirmance. Although there may be errors, unless they resulted in substantial injury or injustice to the complaining party, the judgment must be affirmed.</p> <p>3. APPEAL AND ERROR—Scope of Review. When an error has ■ been committed upon the trial of a case, it is the duty of this court, upon an inspection of the entire record, to determine whether or not the defendant suffered any material injury from such error. Unless such injury appears, the error will not be ground for reversal.</p> <p>(Syllabus by Robberts, 0.)</p>

<p> Error From Superior Court, Garfield County; Dan Duett, Judge. </p> <p>Action by the State, on the relation of Kate Barnard, as Commissioner of Charities and Corrections, against B. F. Buffington and others, as Board of County Commissioners of Garfield County. Judgment for plaintiff, and defendants bring error.</p>

<p>1. EVIDEN CE^-Hearsay—Conversation. Where, in an action to recover for money had and received, the plaintiff alleges, for his 'cause of action, that he purchased certain property from the defendant, through his agent, and that in so doing paid to said agent, for the use and benefit of defendant, the purchase price of said property, and defendant failed to deliver said property, and refused to return the money paid therefor, and in his. answer the defendant denied the receipt of said money, and alleged that he was not the owner of said property, but had sold the same to the alleged agent, who received the money therefor in his own behalf, held, that the sale and delivery of said property by defendant to the alleged agent is a substantial defense, and that parol evidence showing the sale of said property by defendant to the alleged agent, contained in a conversation between ■the alleged agent and defendant, and in the absence of the plaintiff, does not come within the class of hearsay testimony, but is competent, as tending to prove a substantial defense to the plaintiff’s cause of action.</p> <p>2. APPEAL AND ERROR—Harmless Error—Instructions. Where it appears that, although an instruction was erroneous, the jury was not misled thereby, the judgment will not be disturbed.</p> <p>3. SAME. Whether, in a given case, there should be a reversal for error in giving an instruction, depends quite as much upon the evidence before the jury to which the instruction might be applied as upon the abstract accuracy of the language of the instruction, and so, if it is apparent that the language of the instruction, though inaccurate, yet, when applied to the evidence before the jury, it could not have misled the jury to the belief that their duty was different from what it actually was,' the inaccuracy can afford no reason for reversal.</p> <p>(Syllabus by Robberts, O.)</p>

<p>APPEAL AND ERROR—Presentation Below—Instructions—Evidence. The only mode by which exceptions to the admission or exclusion of evidence, or the giving or refusal of instructions, can he presented to this court for review, is by filing a motion for a new trial in the trial court under subdivision 8 of section 5033, Rev. Laws 1910, and- by assigning as error in this court the .overruling of such motion.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>1. REPLEVIN—Redelivery Bond—Custody of Property—Nature. Where property is held by a party under bond in a replevin action, conditioned on the redelivery of the specific property, in the event he should not prevail in the action, such property is to be considered in custodia legis, the same as if the actual possession were with the officer.</p> <p>2. TRIAL—Demurrer to Evidence. When the evidence, with all the inferences that can be properly drawn from it, is insufficient to support a verdict, it is error to overrule a demurrer thereto— following Shawnee Fire Ins. Co. v. Thompson & Rowell, 30 O'kla. 466, 119 Pac. 985.</p> <p>3. BAILMENT—“Involuntary Bailment.” An involuntary bailment arises “by the accidental leaving' of personal property in the possession of any person without negligence on the part of its owner.”</p> <p>4. SAME—-Right to Charge Storage. An involuntary bailment is gratuitous, the bailee being entitled to no reward.</p> <p>(Syllabus by Galbraith, C.)</p>

• Error. from County Court, Carter County; W. F. Freeman, Judge. Action by M. L. • Alexander against Edward R. Holmes and Ralph W. ■■ Holmes,. surviving partners of the firm of R. E. Holmes & Sons. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Alfalfa County; James W. Steen, Judge. </p> <p>Action by Reil Baldrey against Burley Williams. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Swperior Court, Tulsa County; M. A., Breckenridge, Judge. </p> <p>Action by Beulah Pender and others against Edward Chastain and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>1. APPEAL AND ERROR—Presentation—Instruction. This court will not review an instruction given -on the trial of a cause, unless the instruction is excepted to at the trial, and exception made to .appear of record, and the objection pointed out in the trial court by motion for new trial.</p> <p>. 2. APPEAL AND ERROR — Instructions — Objections — Waiver. Where no objections or exceptions are taken to instructions given by the court at the trial, nor the giving of such instructions assigned as error in the motion for new trial, all objections to the law laid down therein will be waived, ‘ and counsel will be presumed to have consented to and. adopted said instructions as ■the law of the case, and applicable to the facts as proven by the evidence.</p> <p>(Syllabus by Robberts, O.)</p>

<p>APPEAL AND ERROR—Presentation for Review—Assignments of Error—Affirmance. Wheie plaintiff in error seeks ito set aside a judgment of the trial court, on the ground that, it is excessive and is not sustained by sufficient evidence, every presumption will be indulged in favor of the correctness of the judgment, and the burden is upon such plaintiff in error to point out specifically wherein said judgment is excessive, and how and in what particular the evidence is not sufficient to support the judgment, and on failure to so do the judgment will be affirmed.</p> <p>(Syllabus by Robberts, O.)</p>

<p>1. APPEAL AND ERROR—Presentation for Review—Denial of New Trial. Where the overruling of the motion for a new trial is not assigned as error in the petition in error, errors alleged to have occurred during the trial are not properly presented, and cannot be reviewed.</p> <p>2. RECEIVERS—Action on Bond—Petition. In an action upon a receiver’s bond, by the obligee against the principal and sureties thereon, the failure to attach to the petition a copy of the order appointing the receiver docs not render it fatal as against a general demurrer.</p> <p>3. SAME. Petition upon receiver’s bond examined, and held to constitute a cause of action as against a general demurrer.</p> <p>(Syllabus by Dudley, O.)</p>

Error from District Court, Muskogee County; R. P. de Graff enried, Judge. Action by A. J. Mason, guardian of Louisa Murrell, a minor, against Levi Ackley and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by Jacob E. Cornelius (substituted by- order of the court for Gordon C. Hughes) against Ruby K. Nicholas and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. MUNICIPAL CORPORATIONS—Special Assessment Warrants— Collection—Injunction—Petition—Sufficiency Against Demurrer. Wlieie tbe petition in an action to restrain tbe county treasurer from collecting certain special ■ assessment warrants, iss.ued against plaintiffs property and extended on tbe tax rolls delivered to tbe treasurer, fails to allege facts that show that tbe municipal authorities did not acquire jurisdiction to make tbe improvements by proper proceedings, taken, and where it appears from tbe face of tbe petition that tbe action was commenced more than 60 days after the assessment was made, held, sucty. petition fails to state facts sufficient to constitute a cause of action, and a general demurrer thereto was properly sustained. , *</p> <p>2. SAME—Injunction—Laches. When money has been expended by a city for public improvement, and a property owner o£ the city sits silently by and allows tbe expenditures and improvements to • • be made, with full opportunity to prevent such accomplishment, yet without taking legal steps to prevent the same, after the money has been expended, the improvements made, and the relations of property and parties have been changed, it is then too late for him to ask a court of equity to relieve against that whieh his own laches has permitted to be done.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from County Court, Hughes County; J. Ross Bailey, Judge.' Action by C. W. Wood and another, doing business as Wood & McAlester, against the St. Louis & San Fr'an- • cisco Railroad Company. Judgment for defendant, and :from an order granting a new trial defendant brings error.

Error from District Court, Johnston' County; Robert M. Rainey, Judge. Action by the Tishomingo Electric Light & Power Company against Alexander Gullett. Judgment for defendant, and plaintiff brings error.

<p> Error from County Court, Garfield County; Winfield Scott, Judge. </p> <p>Action by Ira Towne against S. D. Patrick. and another. Judgment for plaintiff, and defendants bring error.-</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by the Bank of Welch against J. V. Cabell and others. Judgment for defendants, and plaintiff brings error.</p> <p>This was an action by the plaintiff, claiming to be the owner and holder of a certain promissory note, executed by the defendants in error. The case was tried on an agreed statement of facts, which sufficiently discloses the questions raised in this court, and is as follows:</p> <p>“(1) It is agreed that Henry B. Smith was appointed the guardian of the persons and estates of Mary A. B. Smith, Lela Smith, and Francis B. Smith, minors, and that each of said minors were children of. Henry B. Smith.</p> <p>“(2)' That the guardian of said minors above named, Henry B. Smith, sold land belonging to said minors, and acted under order of the county, court of Carter county, Okla., and that said sale was confirmed.</p> <p>“(3) It is agreed that Henry B. Smith, as such guardian, loaned $600 of the' funds derived from the proceeds of said sale to the defendants herein, and that the defendants executed a note for same as set forth in plaintiff’s petition, and that said note was payable to Henry B. Smith, guardian.</p> <p>“(4) It is agreed that before the maturity of said note, and while acting as guardian of said minors, Henry B. Smith indorsed and assigned and transferred said note to G. W. Dixori, and that said Dixon, without recourse, sold and assigned and indorsed said note to the plaintiff herein, the assignment by said Smith as guardian being-made for a valuable consideration.</p> <p>“(5) It is further agreed that said note was assigned and transferred by ■ said Smith without' any proceedings or order from, the county court of Carter county, Okla., where the estates of said minors were being administered.</p> <p>“(6) It is agreed' that the plaintiff is duly organized and incorporated under the laws of the State of Oklahoma, for the purpose of doing a general banking business.</p> <p>. “(7) It is agreed that Mary A. B. Smith, Lela Smith, and Francis B. Smith are now minors and still under guardianship.”</p> <p>On these facts the trial court rendered judgment for the defendants, and the plaintiff brings the case to this court by petition in error and case-made:</p>

<p>1. APPEAL AND ERROR.—Judgment—Discretionary Ruling — Motion to Vacate or Modify Judgment. An application to vacate ■or modify a judgment is addressed to the sound legal discietion of the court* and will not bo disturbed on appeal, unless it clearly appears that the court, has abused its discretion. Following Poff v. Loeltridge, 22 Okla. 462. 98 Pac. 427.</p> <p>2. JUDGMENT—Default Judgment—Refusal to Set Aside—Discretion. Facts in this case examined, and found that the refusal of the court to set aside the default judgment complained of was an abuse of judicial discretion.</p> <p>(Syllabus by Collier, O.)</p>

Error from. District Court, Canadian County; John J. Carney, Judge. Replevin by John A. Scott against Mrs. J. M. Moore, as administratrix of the estate of J. M. Moore,, deceased. Judgment for defendant, and plaintiff brings error.

<p> Error from. District Court, Tulsa. County; L. M. Poe, Judge. </p>

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action by the Liquid Carbonic Company against Charles M. Rodman. From the judgment, the plaintiff brings error.</p>

<p>1. GUARANTY—Time of Payment—Extension—Consent in Assignment. Where a guarantor, for a valuable consideration, sells and assigns a note made to him under the following assignment: “I hereby assign the within note to F. L. Boling, Kingfisher, Oklahoma, and guarantee the payment of same when due or at any time thereafter, and consent to any extension of the time or renewal, waiving demand, notice and protest”—the owner of the note may extend the time of payment of said note without the consent of the guarantor.</p> <p>2. GUARANTY—Duty to Enforce Collection—Demand of Assignor —Question for Jury- Whether the assignor of the note in this case was entitled to any relief, because of the negligence of the holder in forcing collection while the makers were solvent, on assignor’s demand that he proceed so to do, was properly submitted to the jury and decided on conflicting evidence against the contention of assignor.</p> <p>3. TRIAL—Order of Proof—Discretion. The discretion of the trial court is very broad in dealing with the question of the order in which evidence is presented; and hence evidence, proper to be introduced in chief, may be introduced out of its regular order, when the court, in the exercise of its discretion, believes such course proper in facilitating the dispatch of business.</p> <p>4. APPEAL AND ERROR—Jurisdiction of the Trial Court. When the Supreme Court acquires jurisdiction of a case by appeal, the jurisdiction of the trial court is ousted as to any question involved in the appeal; but jurisdiction of collateral matters, not involved in the appeal, or matters happening subsequent to the appeal, remains with the trial court.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action by W. C.-French against the Missouri, Oklahoma & Gulf Railway Company. Judgment for‘plaintiff, ‘ and defendant brings error. This action was instituted to recover damages from the plaintiff in error for injury to two mules and certain household goods shipped by the defendant in error from Arma, Kan., to Big Wells, Tex.

<p>1. APPEAL AND EBJSOB—Case-Made—Service—Dismissal. In a proceeding in error by case-made the record must affirmatively show that the case-made was served' within the statutory time or time allowed by the court or judge, and where it fails to so show the case-made is a nullity.</p> <p>2. SAME—Case-Made as Transcript. Where a case-made is a nullity, because not served within time, the same cannot be considered as a transcript, where it is not certified by the clerk of the trial court.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Walter Colbert against the City of Ard-more. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Proceedings between Harry L. Stevens and J. H. Kennedy and others. From the judgment, Stevens brings error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Citizens’ Independent Mill & Elevatof Company against W. L. Perkins, doing business .as the W. L. Perkins Grain Company. Judgment for defendant, and plaintiff brings error. This is an action brought by plaintiff in error against defendant- in error to recover damages for the breach of a contract of sale of a car of corn. Hereinafter the parties will be designated as they were in the trial court.

Error from Superior Court, Muskogee Coicnty; Farrar L. McCain, Judge. Action by C. L. Steele against O. P. Luse, doing business under the name of the Owl Drug Company, and another. Judgment for plaintiff against defendant Luse, and he brings error.

<p>1. BILLS AND NOTES—Alteration—Effect. Prior to the adoption of sections 4174, 4175, Rev. Laws 1910, a material alteration of a note by the payee, without the consent of the maker, rendered a note void as against such maker, even in the hands of a bona fide holder without notice of such alteration.</p> <p>2. ALTERATION OF INSTRUMENTS—Bills and Notes—Material Alteration. An alteration in a note whereby the name of the payee was changed from “Scott E. AViime” to “Scott E. Winne, Ikes.,” without the consent of the maker, is a matez’ial alteration, and renders the -note void as to the maker.</p> <p>3. SAME. The test as to whether an alteration of a note is material does not depend upon whether it increases or reduces the maker’s liability, but whether the note will have the same operation and effect- after the alteration as it had before.</p> <p>4. SAME. If the alteration could become material, and could alter the rights, duties, and obligations of the parties to be charged, it is in a legal sense material.</p> <p>(Syllabus by Rittenhouse, C.)</p>

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by Isaac Lowenstein against F. H. Wahl, and the State National Bank, as garnishee. Judgment for plaintiff, and the garnishee brings error.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by S. A. Moore against Petty Johnson. Judgment for plaintiff, and defendant brings error. This was an action on two promissory notes, and also to foreclose a chattel mortgage given to secure the same.

<p>1. CARRIERS—Injury to Passenger—Evidence—Variance. The conductor upon defendant’s train took possession of plaintiff’s suit case' and coments upon her refusul to pay the fare demanded for a child of plaintiff’s sister, she being present also and a passenger in the same coach. The plaintiff, in her action for special damage, pleaded that the said conductor used insulting language to plaintiff, and accused her of trying to defraud the railway company at the time he took possession of the suit case and contents, which caused her shame and humiliation, ■ and also Agtused her to suffer mental anguish, pain, and sickness. At the trial, she failed to prove that the conductor used any insulting language, but was permitted to testify that, on account of being deprived of some medicine in the suit case, which she was taking for her health, she became sick and was fined to her lied for four weeks. Held, eixor.</p> <p>%. CARRIERS—Issues—Variance. The evidence must be confined to the issues raised in the pleadings.</p> <p>3. TRIAL—Instructions—Issues. It ’is error ordinarily to instruct upon a material issue not raised by the pleadings.</p> <p>. (Syllabus by Mathews. C.)</p>

<p>1. EVIDENCE—Landlord and Tenant—Judicial Notice—Farm Leases—Crop Rent. Kents for use of agricultural lands, payable in a stipulated share of the crop giown thereon, are due and payable when the crop matures and is ready for harvesting or market. It must therefore follow that it was unnecessary to allege and prove such a custom, because the court will take knowledge of one of such universal existence.</p> <p>2. LANDLORD AND TENANT—Farm Leases—Actions—Defenses. The proof is oveiwhelming that the plaintiffs in error leased the land from the defendant in error, and the court so found; and if a condition existed which should have defeated his recovery, it not being shown in the petition, it was the duty of the plaintiffs in error to allege and prove same.</p> <p>3. PLEADING—Amendments—Trial—Evidence. Where the original petition charged an indebtedness of $125 as being the reasonable value of the rents, during the progress of the trial counsel was given permission to amend his petition to conform to the amount proven by the evidence of the plaintiffs in error, which was not excepted to; but, had an exception been taken, the amendment being in furtherance of justice under the facts in the case, it- would not have been error. The amendment did not substantially change the cause of action or defense, and was proper.</p> <p>(Syllabus by Watts, O.)</p>

<p> Error from District Court,- Kiowa County; James R. Tolbert, Judge. </p> <p>Action by John R. Atkinson and W. C. Atkinson against Robert S. Wallace. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Blaine County'; J. R. Tolbert, Judge. Action by J. G. Gilmore against the Chicago,' Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error. The plaintiff in error will be designated as defendant, and defendant in error as plaintiff, in accord with their respective titles in -the trial court.

<p>1. RAILROADS—Injuries to Persons on Tracks—Licensees. When it is shown that a footpath across and' along a railroad track has been habitually used by the public for a number of years without objection, it is a question of fact for the jury to determine whether the railroad company has not acquiesced in such use.</p> <p>2. SAME—Duty of Care. The rule as stated in A., T. & S. F. Ry. Co. v. Cogswell, 23 Okla. 181, 99 Pac. 923, 20 L. B. A. (N. 8.) 837, to the effect that a railroad company is liable only for willful and wanton injuries which may be inflicted upon a licensee, is not followed. But it is held that, regardless of 'the fact that the person injured was a bare licensee upon the track of the railroad company, the company is bound to exercise that degree of care and watchfulness to protect human life that is commensurate with the probability that persons may be upon its back at any given point. And whether or not that has been done, under proper instructions, is a question for the jury.</p> <p>3. SAME—Negligence. Whore a raflroad company makes a flying switch, in a .vicinity where the employees know or should know ■there are likely to be human beings upon the track, with nc brakeman on the cars to control them or to keep a lookout for pedestrians, held, that such conduct is gross negligence.</p> <p>(Syllabus by Brett, O.)</p>

<p>TRIAL—Credibility . of Witnesses—Jury Question—Verdict. The jury is not bound to believe all the testimony of any particular witness, but may accept such parts of such testimony as seem to them reasonable and true, and reject such parts as seem unreasonable and untrue. And where there is conflicting evidence as to the amount due plaintiff, the verdict will not be deemed a compromise verdict because the jury gave the plaintiff only a pant of the amount he testified was due him.</p> <p>(Syllabus by Brett, 0.)</p>

<p> Error from District Court, Haskell County; W. H. Brown, Judge.' </p> <p>Action by S. M. Lloyd against Ulys Pyle and another. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Pittsburg County; W. C.' Leidtke, Judge. Action brought before a justice of the peace by John Elsing against the Chicago, Rock Island & Pacific Railway Company. Defendant’s appeal from a judgment for plaintiff was dismissed by the superior court, and defendant brings error.

<p>CORPORATIONS—Checks of Corporate Officer—Payment of Individual Obligation—Liability of Bank. Where a bank in which the funds of a corporation are deposited, and to which bank an officer of the corporation intrusted with the management of its affairs is personlly indebted, knowingly accepts and pays a check drawn by such officer against the funds of the corporation in payment and satisfaction of his individual obligation, such bank is liable to the corporation for the amount of its funds so misappropriated in payment of the individual debt of such officer.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p>1. PLEADING'—Answer—Admi'sionr,—Denial of Written Instrument —Verification. In all actions allegations of tbe execution of a written instrument shall be taken as true, unless the denial of the same is verified by the affidavit of the party, his agent or attorney. So where, in an action for personal injuries, the defendant pleaded an accord and satisfaction of the cause of action, and attached to its answer a written release, which it alleged in the answer was executed by the plaintiff, held, the execution of the release was admitted, unless denied by a verified reply.</p> <p>2. SAME. The dictum in Doughty v. Funk, 24 Okla. 312, 103 Pac. 634, that in such case the verification is waived, unless attacked by a motion to strike the pleading from the files, is disapproved.</p> <p>3. STATUTES—Construction. Where a statute is taken from another state which had been previously construed by the highest court of that state, the statute is deemed to have been adopted with the construction so given it.</p> <p>4. RELEASE—Validity—Fraud. Fraud is never presumed, and where a written contract is attacked on the ground of fraud, the burden is on the party alleging the fraud to establish it by clear, strong, and convincing proof.</p> <p>5. EVIDENCE—Presumptions—Suppression of Evidence. Where it lies within the power of a party to produce evidence upon an issue, the burden being on him, and he fails to produce such evidence, the presumption follows that such evidence, if produced, would be unfavorable to (ho cause of such party.</p> <p>6. RELEASE—Validity—Setting Aside. It is the policy of the law to encourage, the settlement and compromise of 'controversies, and while this court will not hesitate to set aside a release from damages in a personal injury case where it has been obtained by fraud, yet it will not do so in the absence of evidence that it was obtained by fraud.</p> <p>7. CONTRACTS—Failure of Consideration—Burden of Proof—Verification. Wlieie the execution of a written instrument is admitted, but want of consideration therefor pleaded, the burden is upon the party executing the instrument to prove by a preponderance of the evidence the. want, of consideration. Rev. Laws 101», secs. 934, 935.</p> <p>(Syllabus by Devemix, (!.)</p>

<p>1. . JUSTICES OF THE PEACE.—Appeal—Final Order—Garnishment. An order of a justice of tlie peace directing a garnishee to pay money into court is not a final judgment from which an appeal will lie by the garnishee. It simply gives the creditor the same right to enforce the payment of the money that the debtor previously had.</p> <p>2. SAME—Appeal Bond—Liability. And where a garnishee attempts to appeal from such an order, and executes an appeal bond for that purpose, and such attempted appeal is ■ dismissed for the reason that said order is not an appealable one, held, in a suit upon such appeal bond, that the makers thereof are not liable thereon.</p> <p>(Syllabus by Dudley, C.)</p>

<p> Error from County Court, Oklahoma County; John D. Hayson, Judge. </p> <p>Action by the Atchison, Topeka & Santa Fe Railway Company against C. J. Ehret and another, doing business as the Oklahoma City Foundry & Machine Shops. , Judgment for defendants, and plaintiff brings error.</p> <p>This was an action brought by the Atchison, Topeka & Santa Fe Railway Company, hereinafter designated plaintiff, against. C. J. Ehret and Con Ehret, partners, hereinafter designated as defendants, for the collection of an undercharge on an interstate shipment of freight from Johnstown, Pa., to Oklahoma City, in the amount of $62.20; The action was originally brought in a justice court, resulting in judgment for the defendants, and by plaintiff appealed to the county court of Oklahoma county, where a demurrer to the plaintiff’s evidence was sustained, and judgment rendered for the defendants for costs.</p> <p>The shipment in question consisted of certain iron and steel beams and channels, and moved from Johns-town on October 2, 1909. When the shipment was received at Oklahoma City, freight charges were collected , from the defendants in the sum- of $363.63. This amount ¡¡was arrived at by the application of a tariff of 69 cents per 100 pounds. At the trial the following stipulation ¡was entered into:</p> <p>¡ “It is hereby agreed and stipulated by and between the said plaintiff and said defendants that during the trial of said cause, and prior to the interposing of the demurrer of the defendants to the evidence of plaintiff, the plaintiff agreed and admitted in open court as follows; That plaintiff admitted in open court , that it entered into an oral contract with the defendants for the 69 cents per hundred weight on the shipment in controversy between Johnstown, Pa., and Oklahoma City, Okla.; that the plaintiff intended to collect only said sum of 69 cents per hundred weight, or the sum of $363.63; that said amount was paid by the defendants to and received by the plaintiff in pursuance -of said oral agreement, and that the shipment and car load of goods was delivered to the defendants at destination, Oklahoma City, on receipt of said sum by plaintiff from defendants; that plaintiff, at the time of the delivery of said shipment and receiving said money, did not demand the payment of a greater rate or amount than was paid at that time; that the claim of plaintiff herein and the suit is for the balance claimed to be due plaintiff from defendants between the sum so agreed by defendants to be paid, to wit, 69 cents per hundred weight, and what plaintiff claims is the legal rate as provided by the Hepburn law.”</p> <p>The plaintiff also introduced the official schedule of rates on file in the office' of the secretary of the Interstate Commerce Commission, which was in effect at the date of this shipment, and which showed that the legal rate on shipments of this character from Johnstown, Pa., to Oklahoma City, was 80 cents per 100 pounds.</p> <p>There was a demurrer to plaintiff’s evidence, which was sustained, a motion for a new trial, which was overruled, and exception saved, and the case is brought to this ■ court by petition in error and case-made.</p>

<p>RAILROADS—Fires—Distractions— Prima Facie Proof—Negligence. Numerous instructions set out and discussed in the opinion, and held, that they fairly state the law as it existed in Indian Territory prior to statehood.</p> <p>(Syllabus by Brewer, G.)</p>

<p>1. INJUNCTION—Dissolution on Motion—Pleading. Where a petition in equity fails in its averments to state a case requiring equitable relief,' and an order of temporary injun'ction is improvidently issued thereon,- it is not error for the court to dis-' solve same later, on motion so to do.</p> <p>2. TAXATION—Property SubjecC—Allotments. The grant of nontaxable land to the allottees of the Cherokee Tribe of Indians by virtue of the provisions of Act Cong. July 1, 1902, c. 1375, 32 Stat. 716, known as the Cherokee Treaty, covers only the homestead of 40 acres; and the lands of such allottees other than homesteads, from which restrictions have been removed by act of Congress, -are subject to taxation.</p> <p>(Syllabus by Brewer, C.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by G. W. Connelly and another against Richard C. Adams and others. Judgment for defendants, and plaintiffs bring error.

<p>AÍ’'Pj3AIi AI® HDESK02D—Di malssai—Cosí Deposit. Where the cost deposit of the plaintiff in error made with the clerk of the Supreme Court, required by law, is exhausted by proper ehaiges against the same, and, upon notice, a further deposit for costs is not made, the appeal, on motion, will be dismissed.</p> <p>(Syllabus by Rittenliouse, C.)</p>

<p>1. TRIAL—Demurrer to Evidence. One interposing a demurrer admits all the facts which the evidence tends to prove, and all the infe: enees or conclusions which may be reasonably and logically drawn therefrom. Therefore, where a petition states a cause of action and the proof fairly, sustains same, it is not error to deny demurrer to the evidence.</p> <p>2. SALES—Breach of Warranty—Remedy of Buyer. The law in this state is that where personal property is sold, such as shingles, backed by warranty as to quality and, in particular, to give satisfaction, the purchaser may, in good faith, retain the article, and, if found inferior, recoup proper damages sustained, and lie need not, as a rule, return the same or notify the seller. Prompt and timely notice, however, is very indicative of good faith and common honesty.</p> <p>(Syllabus by Watts. C.)</p>

Error from Superior Court, Oklahoma County; John W. Hayson, Judge. Action iby James L. Brown, as administrator of the estate of C. B. Bradley, deceased, and others, against the Connecticut Fire Insurance Company of Hartford, Conn.,' a corporation. Judgment for defendant, and plaintiffs bring error.

<p>1. CORPORATIONS—Foreign Corporations—Action Against—Service of Process—Agent. Article 23, chapter 18, Wilson’s Statutes, which includes section 3336, Rev. Laws 1910; provides that “every foreign' corporation shall before * * * authorized or permitted to transact business * * * therein, if already established, by its certificate under the hand of the president and seal of the company, appoint an agent who shall be a citizen of the state and reside at the state capital, upon whom service of process may be made in any action in which said corporation snail be a party ; and action may be brought in any county in which the cause of action arose, * * * and service upon said agent shall be taken and held as due service upon said oorpoi'ation." Held, that where a foreign 'corporation, other than a railroad, stage company, or insurance company has complied with the provisions of this statute, and appointed an agent in this state for the service of process, in compliance with the provisions of said statute, service of process must be made on such agent; and held, further, that where such corporation has appointed a service agent as provided in the 'foregoing statute, service of summons in an action 'brought against said corporation, upon the agent or manager of a local business of said corporation not at. the capital of the state, 'is not sufficient service, and does not give the court jurisdiction of the cause of action.</p> <p>2. SAME—“Managing Agent."’ The term “managing agent,’( as used in section 4274, Wilson's Statutes of Oklahoma 1903, Ann., which provides that, “where the defendant is a foieign corporation, having a managing agent in this state, service may be had , on such agent,” means an agent whose agency extends to all the transactions of the corporation, within the state, one who has or is engaged in the management of the business of the corporation, in distinction from the management of a local or particular branch or department of said business.</p> <p>(Syllabus by Robbeits, C.)</p>

<p>1. EVIDENCE—Admissions in Pleadings—Bight to Contradict. A litigant will not be permitted to introduce testimony that contradicts admissions made in his pleadings.</p> <p>2. PLEADING — Amendment — Bequest, tinder this jurisdiction amendments are favored aud ordinarily should be allowed, when a timely request is made therefor; but a party should be diligent in making such requests, and, as soon as the fact develops that an amendment is necessary, the request therefor should be made at the first opportune moment.</p> <p>3. SAME—Discretion. In an action where it was apparent in the petition that plaintiff based its cause upon a certain fact, and defendant’s answer admitted that fact to be tiue, and counsel for plaintiff in his opening statement asserted that fact to be'true, and in the opening statement of defendant, when it was stated that defendant would offer certain testimony which tended to contradict said admission, the court sustained an objection to .the statement along that line, and when the court, during the trial, repeatedly sustained objections to evidence offered i>y defendant which tended to contradict said admission, held, the court did not abuse its disci etion when it refused defendant permission, at the close of defendant’s testimony, to amend its answer by striking out said admission.</p> <p>4. ATTACHMENT—Attached Property—Right to Release—Direction of Attaching Party. A sheriff may release attached property when so directed by the attaching party, or his attorney, without an order of court.</p> <p>5. APPEARANCE—General Appearance—Nonresident Defendant— Attachment. Where, upon the commencement of an action against a nonresident, an attachment is issued and levied,' but no attempt is made to get service upon defendant, and, after the’ expiration of sixty days, the defendant appears specially for the purpose of filing a motion to discharge the attachment, which motion is overruled, and the defendant answers and also files a cross-action against plaintiff for damages incurred by reason of said attachment, held, defendant thereby waived its objection to the jurisdiction of tlie couit, and the asking of such affirmative relief operated as a general appearance.</p> <p>(Syllabus by Mathews, 0.)</p>

<p>1. INSURANCE—Fire Insurance,—Right of Action—Submission to Examination. A requirement in a policy of fire insurance that the insured shall submit to an examination under oath touching the matters i elating to the risk assumed by the company and the destruction of the property insured is binding and valid, and a refusal to comply with this condition will preclude the insured from recovering upon the policy, where it provides that no suit can be maintained until after a compliance with such condition.</p> <p>2. SAME—Examination Under Oath. During the examination provided for in the insurance -policy, 'the insured frequently refused to answer material questions, giving as his reason that the questions asked had nothing to do with the matter in issue. At the close of the testimony, the insured informed the company’s attorney that he would not refuse to answer any reasonable question that in any way pertained to the matter under investigation. Held, that this offer cannot be construed as a willingness to answer questions which he had previously refused to answer.</p> <p>3. SAME. It is urged that the examination-provided for in the insurance policy was not conducted in good faith. Held, as long as the examination is conducted within the terms of the policy, the insured cannot inquire into the motive actuating the company in conducting the examination.</p> <p>4. SAME. In such examinations, the company 'has no right to inquire into a proposition unless it has some legitimate bearing upon the question at issue; that is, unless i’t is material and tends to shed light upon a point about which the company has a right to be informed; yet the examination should not be circumscribed by any nairow or technical rule, but should be broad and liberal in its scope so as to reach the end intended by the insertion of such a clause in the policy.</p> <p>5. SAME. In-the application for an insurance policy, it was stated that the property was incumbered by chattel mortgage for $400 After the loss, there was found to be of íecord four chattel mortgages executed by the insured, in a sum far in excess of $400, covering the same or similar property to that embraced in the policy. At the examination, the insured refused to answer whether or not he executed these mortgages. Held, the questions weie pertinent and material to the issue, and the insured was precluded thereby from maintaining an action upon tfce policy until the questions were answered in qn examination held according to the terms of the policy.</p> <p>(Syllabus by Mathews, C.)</p>

<p>JUSTICES OF THE PEACE—Jurisdiction—Amount Involved—Pleading. In a case in á justice court where defendant files an answer in the nature of a bill of particulars, itemizing and .setting forth a claim against the plaintiff in an amount within the jurisdiction of the court, but prays for judgment in a sum in excess of th,e jurisdictional limit of such court, the allegations in the bill of particulars pleading specific facts as to the amount claimed, and not the relief asked in the prayer, constitute the criterion -which controls in determining the amount involved.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from Superior Court, Custer County; J. W. Lawter, Judge. Action by the Fay Mercantile Company, a corporation, against the Oklahoma Fire Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error. Reversed and remanded, with directions to dismiss. This was an action on a policy of fire insurance alleged to have been issued by the plaintiff in error to the defendant in error.

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action ,by Pheney Palmer against Wallace C. Cully, administrator, and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. , INSURANCE—Fire Policy—Book Warranty Clause—Sufficiency of Compliance. The ‘‘book warranty" clause of tlie standard form of fire insurance policy in use in Oklahoma is complied with by the assured if the set of books kept by him are sufficient to enable a man of ordinary intelligence to ascertain from them with reasonable certainty the amount and value of the goods destroyed.</p> <p>2. INSURANCE—Fire Policy—Binding Effect—Acts and Knowledge of Agent—Waiver of Provision. When a local agent of a fire insurance company, who has the power to accept a risk and deliver the policy of insurance, at and prior to the time of delivery of the policy is advised and has full knowledge of the fact ¡that a portion of the property insured is incumbered by a chattel mortgage, and with that knowledge accepts the premium and delivers the policy, such policy is binding upon the company notwithstanding it contains a provision that none of the company's officers or agents can waive any of its-provisions, except in writing indorsed on the policy.</p> <p>(Syllabus by Galbraith, 0.)</p>

Error from County Court, Comanche County; H. M. Whalin, Judge. Action by the State against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiff, and certain defendants bring error.

<p> Error from County Court, McIntosh County; </p> <p> J. G. Schofield, Special Judge. </p> <p>Action by the Chapman Valve Company against the City of Checotah. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from, ,District Court, Muskogee County; R. P. de Graffenried, Judge. </p> <p>Action by A. J. Mason, guardian of Louisa .Murrell, against S. L. Evans. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Cotmty Court, Comanche County; H. N. Whalin, Judge. </p> <p>Action by John Seigler, against Ira E. Carr. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Comanche County; J. T. Johnson, Judge. </p> <p>Action by L. J. Crider against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant bring error.</p> <p>This was an action for damages alleged to have been received by the plaintiff below by reason of negligence of the defendant, while attempting to board a passenger train of the plaintiff in error at Ft. Sill, en route to Law-ton. In consequence of the injury the plaintiff lost his left hand. The jury returned a verdict in his favor in the sum of $700, and after the overruling of a motion for a new trial, the defendant below brings the case to this court by petition in error and ca'se-made, and the only assignments of error presented in the brief are:. (1) That the verdict is contrary to law; (2) that the verdict is contrary to the evidence, and not sustained thereby.</p>

<p>1. APPEAL AND ERROR—Harmless Error—Appointment on Unverified Petition—Admissions in Verified Answer. Where a verified answer to'an unverified petition for a receiver admits a state of facts requiring, or rendering proper, the appointment of a receiver, an order appointing a receiver will not be reversed on the ground that the petition was not verified, and no other evidence under oath was offered.</p> <p>2. PLEADING—Objections—Unverified Petition—Effect of Verified Answer—Admissions. lit was show* by the averments of an unverified petition for a ireceiver, filed in, and ancillary to, a suit in equity to cancel a lease and quiet 'title, and the admissions by actual averments, and by failing to deny, in a verified answer ' thereto, that petitioner was the owner of a guardian’s lease, fair and regular on its face, and prior in time to a similar lease on the same land by the same guardian, and in the same ’court, held by defendant; that after plaintiff’s suit was commenced to cancel defendant’s lease and summons was duly served on defendant, the latter went secretly and without the knowledge of the plaintiff and entered upon the land .and drilled in an oil well, and was ready to take oil from the land. Held, 'that the court was justified in appointing a receiver to protect the property and hold the revenues from production, pending the final result of the case; and this; notwithstanding the fact that the ancillary petition was not verified.</p> <p>(Syllabus by Brewer, O.)</p>

<p> Error from 'District Court, Okmulgee County; Wade S. Stanfield, Judge. </p> <p>Action by Salina Pevehouse and others against Wasfc Adams and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>APPEAL AND ERROR—Service of Case-Made — Dismissal. Where a ease-made is not served upon opposing counsel within the time allowed by law or an order of the trial court for serving the same, this court cannot consider any errors occurring at the trial; and, no error appearing in the record, the appeal' should be dismissed.</p> <p>(Syllabus by Rummons, C.)</p>

Error from- District Court, Creek County; Wade S. Stanfield, Judge. . Action by Susie Bigpond and others against the People’s Banking & Trust Company, a corporation, and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Pottawatomie Comity; Chas. B. Wilson, Jr., Judge. Mandamus by the City of Tecumseh against the City of Shawnee and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by C. B. Campbell against Newton & Driskill and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Canadian County; John J. Carney, Judge, Action by C. B. Campbell against Newton & Driskill, a copartnership composed of J. A. Newton and others. Judgment for defendants, and plaintiff brings error.

<p> Error from County Court, Coal County; R. H. Wells, Judge. </p> <p>Action by A. J. O’Neal against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.-</p>

<p> Error from District Court, Custer County; J. W. Lawter, Judge. </p> <p>Action by Jerry C. Scully against J. A. Williamson. Judgment for plaintiff, and defendant brings error.</p>

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

<p> Error from District Court, Bryan County; Jesse M. Hatchett, Judge. </p> <p>Action by the Executive Committee of Home Missions of Presbyterian Church and another against M. J. Gill, doing business as the M. J. Gill Construction Company, and another. Judgment for plaintiffs, and, defendants’ motion to Vacate judgment and application for a restraining order against the issuance of execution, etc., being denied, they bring error.</p>

<p>KILLING OF STOCK. Syllabus in Missouri, Oklahoma & Gulf Railway Company v. A. J. O’Neal, ante, .p. 527, 152 Pac. 1071, this day handed down, is adopted as the syllabus in these cases.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>1. EVIDENCE—>Res Gestae. In an action for damages arising from ■ a collision between a railway locomotive and a wagon, in which tlie occupants of the wagon were injured, a statement by the engineer of the train, in response to a question -by the conductor, made after the accident had occurred and the train had stopped and the engineer and conductor had alighted therefrom, held, not admissible as part of the res gestae.</p> <p>2. RAILROADS — Witnesses—Impeachment'—Material Testimony— Crossing Accident. In an action to .recover damages for injuries resulting from a railroad crossing accident, the petition alleged that the railroad compaany was negligent, in that it ran its locomotive and train up to and across the street crossing at a liigli and dangerous rate of speed, and in that it failed and neglected ito give warning of the approach of such locomotive and train to such street crossing by sounding the whistle or ringing the bell. Held, that evidence of a statement made by the engineer of such train, in response to a question by the conductor after the accident, that he was looking bade and did not see the wagon until he struck it was immaterial, and its admission was error.</p> <p>3. NEGLIGENCE—Pleading—Proof. Where the petition avers specific acts of negligence, evidence ¡tending to prove other acts of negligence not embraced in the acts 'charged is not admissible. '</p> <p>4. RAILROADS—Crossing Accident—Duty to Give Warning—Instructions. Where the evidence shows that the street crossing at which the accident occurred is 250 to 300 yards from the depot from which the tiain inflicting the injury started, it is-error to instruct that, if the jury find that ithe defendant failed and neglected to sound the whistle or ring the bell at least 80 rods from such street crossing, and thait by reason of such failure and neglect plaintiff was not warned of the approach of such train, and did not know of- the approach of such train in time to get out of its way, and the wagon in which she was riding was struck by the locomotive of such train, and she was injured, they must find for the plaintiff, unless they find that plaintiff was guilty of contributory negligence.</p> <p>5. APPEAL AND ERROR—Harmless Error—Instructions—Measure of Damages. Instruction as to the measure of damages considered aii:l held not to Lo reversible error. Midland Valley R. Oo. v. Hilliard, 46 Okla. 391, 148 Pao. 1001. followed.</p> <p>(Syllabus by Rummons, O.)</p>

Error from District Court, Carter County; s S¡ H. Russell, Judge. Action by the Continental Gin Company, a corporation, and R. M: Collett, trustee in deed of trust, against Ira L. Arnold and wife. Judgment for defendants, and plaintiffs bring error.

<p>Habeas corpus by John Graham.</p> <p>Petition dismissed.</p>

<p>1. TRIAL—Argument oi Counsel—Cure by Instructions. Where counsel for the prevailing party, in his argument to the jury, makes ¡remarks which, in effect, advise tlie jury as ¡to the law on a certain issue of the case, and objections are made thereto by opposing counsel, and sustained by the court, and after the close of the argument the court instructs ¡the jury with reference to such remarks, and admonishes it not to consider the same, but to follow the court's instructions as to the law of ¡the cáse, held, that such remarks are improper, but not. prejudicial error, in view of the court's instructions not to consider ¡them.</p> <p>2. , WITNESSES—Competency—Husband and Wife—Agency. When, in the absence of the husband from home, the wife acts in protection of property claimed by the husband, and within the circle of ¡the home, although without express direction, she is acting as his agent, and is a competent witness, in an action by or against- him, as to what she does and says in.relation therewith.</p> <p>3. TRL4L—Refusal of Instruction—Evidence. It is not error to refuse a requested instruction on the defeuse of former adjudication, where, there is no evidence even reasonably tending to support such defense.</p> <p>(Syllabus by Dudley, C.)</p>

Error from District Court, Haskell County; W. H. Brown, Judge. In the matter of the appeal of Mrs. R. D. Garland from a decision of the Board of County Commissioners of Haskell County. Judgment for defendant, and plaintiff brings error.

Error from Superior Court, Oklahoma County; Edward Detoes Oldfield, Judge, Action by the Palmer-Gregory Chiropractic College against Jack Spain, as sheriff of Oklahoma County and others. Judgment for defendants, 'and plaintiff brings error.

<p> Error from County Court, Beckham County; E. H. Gipson, Judge. </p> <p>Action by R. N. Sewall against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, ■ and defendant brings' error.</p>

<p> Error from County Court, Coal County; P. E. Wilhelm, Judge. </p> <p>Action by C. 0. Moore against the Chicago, Rock Island & Pacific Railway Company. From the judgment, the Railway Company brings error.</p>

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Action by the Standard Stone Company, a corporation, against Clarence Greer and others. Judgment for defendants, and plaintiff brings error.

<p> Error from District Court, Mayes County; Preston S. Davis, Judge. </p> <p>Action by Silas A. Cline against W. H. De Walt and others. From the judgment, Cline brings error.</p>

<p> Error from District Court, Kiowa County; James R. Tolbert, Judge. </p> <p>Action by Emmet A. Parsons against Myrtle L. Parker and others. From the judgment, Parsons brings error'.</p>

<p> Error from County Court, Jefferson County; B. F. Price, Judge. </p> <p>Action by Henry Simonoff against Ed. V. Parsons. Judgment for defendant, and plaintiff brings error.</p>

<p>1. SALES—Remedy of Buyer—Recovery of Price Paid. A. offered to purchase of B. fat hogs fit for market. In response to such offer, B. informed A. that he liad four such hogs, one a male, and II. agreed to buy them, provided the male had been gelded and was smooth and fit for market. B. delivered to A.'s agent iviur hogs, three according to contract, but the fourth was a boar, and not marketable. Held: (1) That the contract was severable: (2) that, as far as tlie boar was concerned, there had been no meeting of minds of the parties, and consequently no contract; (3) A.’s agent having paid for the boar without the knowledge of A. that it was not the hog he contemplated purchasing, A. can recover the amount paid from B.</p> <p>2, APPEAL AND ERROR—Verdict—Excessive Recovery—Trifling Amount. Where complaint is made that the verdict is $1.33 excessive, the maxim that the law does not concern itself with trifles applies, and the verdict will not be disturbed.</p> <p>(Syllabus by Devereux, 0.)</p>

<p> Error from District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by F. H. McDowell against Mose B. Price. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR—Dismi sal—Fa'lnr' to File Brief. Where flie plaintiff in error lias filed no briefs nor asked for further extension of time in which to file same, the ease having been reached, motion to dismiss will be sustained.</p> <p>(Syllabus by Brewer, 0.)</p>

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by the Corrugated Culvert Company against Akers Township. From the judgment, the Culvert Company brings error.</p>

<p>RAILROADS—Failure to Construct Crossing—Penalty—Recovery— Parties. The act of May 11, 1908 (1,-aws 1907-8, c. 72, art. 2, sec. 1), being section 1432, Rev. Laws 1910, provides in substance, that if any lailroad company, operating a line of railroad within this state, shall fail to construct and maintain crossings over its • tracks and rights of way, over which public highways may run, as required in said section, after 30 days’ written notice by the road overseer of any road district, by 'the city council of any city, or board of trustees of any town in this state, where such crossings are needed, or by 50 petitioners of any such city or town, said railroad company shall forfeit and pay to said county, road district, city, or town complaining, the sum of $25 -a day for every day said company may neglect to construct and maintain such crossings. Held, that an action to recover such forfeiture or penalty cannot he maintained in the name, or on behalf, of the state, on the relation of the county attorney, but must be prosecuted in the name of the body politic to which said forfeiture or penalty is made payable, under the terms and requirements of said statute.</p> <p>(Syllabus by Roberts, C.)</p>

<p> Error from District Court, Atoka, County; R. M. Rainey, Judge. </p> <p>Action by J. S. Fulton against Carolina Orr. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Muskogee County '; R. P. de Graffenried, Judge. In the matter of the estate of George Barnett, deceased; Edmund McKay, administrator. From an order disallowing claim filed against the estate by Robert L. Page, he appealed to the district court, and the appeal being dismissed on motion of the administrator, Page brings error.

<p>USURE—Action to Recover—Demand—Pleading and Proof. A written demand for a return of the usury is a condition precedent to the maintenance of a suit to recover on -account of the payment of usurious interest, under section 1005, Rev. Laws 1910; and such demand must be alleged in the -petition and proven at the trial.</p> <p>(Syllabus by Brewer, O.)</p>

<p>1. LANDLORD AND TENANT—Dispossession of Tenant—Rent Recoverable. The defendant leased from plaintiff certain premises, under a written contract, for a period of five years, for which he agreed to pay the aggregate sum of $33,000, in installments of $550 a month, .in advance of each month, commencing on the date of the lease, which was June 20, '1912. Said lease contained the following provision: “It. is further agueed that any failure on the part of said lessee to pay said rent promptly when due as above 'provided, or to observe any or all o'f the other, provisions of this lease, shall, without notice, render this lease, immediately void and entitle the said lessors to enter, and take possession of said premises without notice, and the provisions of this paragraph shall apply to any sublessee or other person, in possession of said premises under this lease.” The June and Julj' payments were made, but the lessee failed to pay the installment due for the month commencing August 20th. The defendant was not present at the time plaintiff took possession, 'and the contention of the plaintiff was that defendant had abandoned the premises. The court made findings of fact thereon as follows: “On the 20th day of August, 3912, there became due from the defendants to the plaintiff an installment of rent, amounting to $550, ^nd no part of said sum had been paid. Thereafter, on the 26th day of August, 1912, the plaintiff, lessor, declared a forfeiture for nonpayment of rent, pursuant to the terms of the lease, and immediately took possession of the premises”—and, while there is no finding of the court to that effect, the evidence shows that plaintiff retained possession of the premises. Held, that under the circumstances of the case, and the findings of the court, the plaintiff’s remedy was for the recovery of the proportionate amount of the monthly rental due on the 26th day of August, 1912, which would be $110.</p> <p>2. APPEAL AND ERROR—Trial—General Finding—Conclusiveness. Where the testimony is oral and- conflicting, and the finding of the court is general, su'ch finding is a finding of every special thing necessary to be found to sustain the general finding, and is conclusive upon this court upon all' doubtful and disputed questions of fact.</p> <p>3. LANDLORD AND TENANT—Lease—Breach by Tenant—Remedies cf Landlord—Right to Election—Rent Recoverable. If a tenant wrongfully abandons leased premises before the expiration of the term, the landlord may, at his election: (a) At once enter and terminate the contract and recover the rent due up to the time of abandonment; or (b) he may suffer the premises to remain vacant and sue on the contract for the entire rent; or-le) he may give notice to the tenant of his refusal to accept a surrender, when such notice can be given, and sublet the premises for the uiiexpired term for the benefit of the lessee to reduce .his damages—but if tlie landlord forcibly takes possession of the premises, without the consent of the tenant, and retains the same, he cannot recover to exceed the amount of rent due up to the time he took possession.</p> <p>(Syllabus by Robberts, C.)</p>

Error from County .Court, Atoka County; Baxter Taylor, Judge. Action by E. I.- Wakeman, executor of the estate of D. N. Robb, deceased, against Osborn Peter. Judgment for defendant, and plaintiff brings error.

<p>NEW TRIAL—Impeachment of Verdict—Affidavits of Juro-rs—Com-petency. The general rule is that -affidavits of jurors are admissible to explain and uphold their verdict, hut not to impeach and overthrow it. Bu-t this general rule is subject to -this qualification : That affidavits of jurors may be received for the purpose of avoiding a verdict, to show any matter occurring during the trial, or in the jury room, which does not essentially inhere in the verdict itself, as that the jury considered and were influenced by specific evidence that had not been offered or admitted at the trial; but not to show any matter which does essentially inhere in the verdict, as that -the jurón- did not assent to the verdict, that he misunderstood the instructions, or any other matter resting alone in the juror’s breast.</p> <p>(Syllabus by- Galbraith, C.)</p>

<p>APPEAL AND ERROR—Failure to File Brief—Dismissal. Syllabus same as in No. 3222, Bryan v. Umholfs, 42 Okla. 477, 141 Pac. 1107.</p> <p>(Syllabus by Galbraith, O.)</p>

<p> Error from District Court, Bryan County; A. H. Ferguson, Judge. </p> <p>Action by the American State Bank of Tishomingo against F. K. McClure and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from County Court, Canadian County; W. A. Maurer, Judge. </p> <p>Action by E. E. Blake against Henry Webber. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, 'Muskogee County; R. P. de Gi'affenried, Judge. Action by the Oklahoma National Bank, a corporation, and another, against H. C. Cobb and others. Judgment for defendants, and plaintiffs bring error. This was an action instituted by the plaintiffs in error to subject certain land in the city of Muskogee to the payment of judgments they had obtained against H. C. Cobb, the one on November 1, 1912, and- the other on November 13, 1912.

<p>1. SALES—Action for Price—Assumption of Debt—Pleading—Sufficiency of Evidence. Petition examined, and held to state a cause of action, and that plaintiff’s evidence reasonably -sustains the -allegations of 'the petition.</p> <p>2. TK-IAL—Demurrer to Evidence. Where the petition states a cause of action and the plaintiff’s evidence reasonably sustains the allegations of the petition, it is error for the co-urt to sustain a demurrer to the evidence and give judgment in favor of defendant.</p> <p>(Syllabus by Watts, O.)</p>

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. ■ </p> <p>Action by Pearl Hicks against I. 0. Stuart. Judgment for plaintiff, and defendant, brings error.</p>

<p>1. APPEAL AND ERROR-—Necessary Parties. If the status of a party .become, so fixed in the trial court that no action of the appellate court., whether.it ho an affirmance, modification, reversal or dismissal of the case on appeal, can then or thereafter affect or ■change the status of the party as fixed by the trial court, then he is not a necessary party- on appeal.</p> <p>2. GUARDIAN AND WARD—Purchase of Land—Res Judicata— . Records of County Court—Action by Vendor. The county court made an order authorizing a guardian to purchase a tract of land with funds belonging to his ward, mid a warranty deed therefor was taken in the name of the ward. The vendor afterwards sued to have the deed declared an equitable mortgage. Held, the vendor was not conclusivly bound by the records of the county court in the action instituted by him to have the deed declared a mortgage.</p> <p>3. APPEAL AND ERROR—Findings—Evidence, (a) In an equitable action the findings of the trial court should be sustained unless it appears that his findings are clearly against the weight of the evidence. (b) The findings of the trial court should be strongly persuasive, and should not be set aside unless this court can say, in equity and good conscience, that the conclusion reached by the trial court is 'clearly against, the.weight of the evidence.</p> <p>4. MORTGAGES—Security Deed—Intent of Parties—Existence of Debt, (a) Whether a transaction evidenced by an absolute conveyance will be held to be a sale or only a mortgage must foe determined by a consideration of the peculiar circumstances of each case. The form of the conveyance is net conclusive. The intention of the parties is the only true and infallible test. This intention is to be gathered from the circumstances attending the transaction and the conduct of the parties as well as from the face of the written contract.</p> <p>(li) Before a deed can be declared to be an equitable mortgage, there must exist a debt, which must foe personal in its nature and enforceable against the person independent of the security.</p> <p>(c) Evidence examined, and held sutficient. to sustain a finding that a deed was intended by the parties to be an equitable mortgage.</p> <p>(Syllabus by Mathews, C.)</p>

<p> Error from District Court, Ottaioa County; Preston S. Davis, Judge. </p> <p>Action by H. L. Marshall against Charles L. Hale. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Canadian County; John J. Carney, Judge. Action by the Davidson-Case Lumber Company against the First National Bank of El Reno, Oklahoma, a corporation, and others. From the judgment, the defendant named brings error.

<p>APPEAL AND ERROR—Failure to File Brief—Dismissal of Appeal. ¡-Syllabus the same as in Bryan v. Umkolts, 42 Okla. 447, 141 Pac. 1107.</p> <p>(Syllabus by Galbraith, ('.)</p>

Error from District Court, Coal County; Jesse M. Hatchett, Judge: Action by V. S. Cook against the Tupelo Townsite Company and others. Judgment for plaintiff, and the defendant named brings error.

<p> Error from District Court, Ttolsa County; L. M. Poe, Judge. </p> <p>Action by C. L. Reeder and another against the Merchants’ & Planters’ Insurance Company and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>NKW TRIAL—Motion—Right to Amend. A motion for a new trial may be amended after tlio three days allowed by the statute for filing the motion, by a clearer, more appropriate statement or elaboration of the grounds originally set up; but such an amendment, filed after the statutory time has expired, cannot set up new and independent grounds therefor. Rogers et al. v. Quabne.r et al., 41 Okla. 107, 137 Pac. 361.</p> <p>(Syllabus by Rittenhouse, 0.1</p>

<p> Error from County Court, Blaine County; ■ George Ferguson, Judge. </p> <p>Action by H. A. Patrick against T. j. Ballew and others. Judgment for plaintiff, and defendant Ballew brings error.</p>

Error from District Court, Carter-County; S. H. Russell, Judge. Action by Lena Lilly against the St. Louis & San Francisco Railroad Company, a corporation. Judgment for plaintiff, and' defendant brings error.

<p>1. TENDER—Sufficiency—Parent and Child. A tender to a son is not a good tender to his father.</p> <p>2. REPLEVIN—Animals—Damages for Trespass. About twenty-five head of cattle, all belonging to the same party, trespassed upon another party, who was able to impound only five head thereof. The owner' replevied the five head. Held that, at the trial of this action, the impounding party was entitled to judgment for-the damage done by the entire herd.</p> <p>3. REPLEVIN—Nature of Remedy—Scope of Relief. Á. replevin action is primarily one for the possession of personal property; yet it is sufficiently flexible to authorize a settlement of all the equities between- the parties arising from or growing out of the main controversy.</p> <p>(Syllabus by Mathews, O.)</p>

<p> Error from District Court, Beckham County; G. A. Brown, Judge. </p> <p>Action by Reeves & Co., a corporation, against Richard Dyer and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District• Court, Beckham County; G. A. Brown, Judge. Action by Ira Hodgson and another against J. G. Winne and another, a partnership doing business as Winne & Winne, and others. Judgment for defendants, and plaintiffs bring error.

<p> Error from County Court, Washita County; L. R. Shean, Judge. </p> <p>Action by P. B. Blalock against Fred Albright. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BROKERS—Exclusive Agency. A real estate broker has neither an exclusive right nor agency to sell, even though he is employed for a definite time, unless he is granted one or the other in express terms; and in the absence of such grant the owner may, independent of the broker, sell either through his own efforts or those of another.</p> <p>2. SAME'—Agency Contract—Construction, ¡The contract between a real estate broker and the owner, providing for the sale of lots •at auction, examined, and held not to deprive the owner of the right to sell independent of the broker.</p> <p>(Syllabus by Dudley, C.)</p>

<p>USURY—Penalty—Renewal Note—Operation of Statute. An usurious contract was entered into prion to the passage of section 1005, Rev. Laws 1910. Subsequent to tlie adoption of that section, the debt was renewed, and the usurious interest was carried into the renewal note. Held, that the defendant was entitled to a forfeiture of twice the amount of usurious interest which the note carried with it on which was agreed to he .paid thereon.</p> <p>(Syllabus by Rittenhouse, O.)</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by J. L. Courtney against A. H. Gibson and another. Judgment for defendants, and plaintiff brings error. This action was brought prior to statehood in the United States Court for the Northern District of the Indian Territory, and resulted in that court in a judgment for plaintiff, which was reversed on appeal by the Court of Appeals for the Indian Territory, in Barbies v. Courtney, 6 Ind.

<p>1. WATERS AND WATER COURSES—Irrigation—Appropriation of Water—Conditions Precedent—Hydrographic Survey and Adjudication. The petition for injunction alleged that plaintiff had been granted a permit or license by the .secretary of the State Board, of Agriculture, who was ex officio State Engineer, to appropriate 530 gallons of water per minute from Sandy creek, a spring branch, the same being the entire flow of said stream, to the exclusion of all others through whose land it ran, and prayed that defendants, who were such landowners, be enjoined from taking any water from the stream for purposes of irrigation. The proof showed that no hydrographic survey, as provided for by law (section 3639, Rev. Laws 1910) had been made, and that no suit had been brought (section 3640, Rev. Laws 1910) to determine “all .rights to the use of the waters,’’ and no decree rendered (section 3642, Rev. Laws 1010), fixing and declaring “the water rights adjudged to each party, the priority, amount, purpose, place of use," and the lands to which it should appeitain, prior to the issuance of the permit. The proof also showed that there was more flowing water in the stream, in excess of plaintiff’s entire claim, than defendants were appropriating, or prepared to appropriate. The injunction was denied. HeW, that there was no error in denying the injunction, because the hydrographic survey- of the stream and its system; and an adjudication in court, as provided by law, were conditions precedent to the granting by the State Engineer of a valid permit, authorizing plaintiff to appropriate a fixed amount of the available water of the stream, to the exclusion of all other owners of irrigable lands, through which it meandered, and who were claiming the right of appropriation.</p> <p>2. SAME—Irrigation—Permit to Appropriate Water—.Collateral Attack. Such permit was open to collateral attack.</p> <p>3. SAME—Irrigation—Appropriation of Water—Injunction. The evidence was sufficient to show that the stream afforded sufficient water to supply defendants, in excess of the amount claimed by plaintiff, and would therefore defeat the right to an injunction, even if plaintiff’s permit had operated as a valid prior appropriation.</p> <p>(Syllabus by Brewer, C.)</p>

Error from, County Court, Stephens County; J. W. Marshall, Judge. Action by the McCall Company, a corporation, against the Comanche Mercantile Company, a corporation. Judgment for plaintiff, and defendant brings error. Defendant in error commenced this action before a justice of the peace of Stephens county to recover from plaintiff in error the sum of $92.89 for goods sold and delivered, and the sum of $67.93 for damages for breach of contract.

Error from Superior Court, Custer County; J. W. Lawter, Judge. Action by Emma Hawkins against William Hawkins. Judgment for plaintiff, and defendant brings error. This action was begun in the superior court of Custer county by the defendant in error for a divorce from plaintiff in error, the custody of the children, and alimony. On September 7, 1912, at the August, 1912, term of the superior court of Custer county, judgment was rendered for defendant in error by default.