Volume 54 — Oklahoma Reports

Error from District Court, Craig County; Preston S. Davis, Judge. Proceedings by Maria Prophet against L. B. Campbell, executor, to revoke the probate of the will of Nancy Blackfeather, deceased. From a judgment revoking the probate, the executor brings error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action, by George Weiderholt against Frank Sibe-naler, administrator of the estate of Dorothy King, and another. Judgment for plaintiff, and defendants bring error.

<p> Error from. District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by F. G. Bonfils and others against Lee A. Akin. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by Jacob Perry and another, by K. C. Parks, guardian, against Hunis Johnson and another. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Beckham County; G. A. Brown, Judge. Action by J. R. Murray and another against H. K. Speed and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Nowata County; T. L. Broivn, Judge. Action by S. J. Osborn, revived in the name of A. W. Reed, administrator, against John W. Foresythe, administrator of the estate of William C. Greathouse, deceased. From a judgment for defendant, on appeal to the district court from the allowance of a claim, plaintiff brings error.

<p> Error from District Court, Carter County; S. H. Russell, Judge. </p> <p>Action by Mabel Miller against I. R. Mason and others. Judgment for plaintiff, and certain defendants bring- error.</p>

<p>- Error from County Court, Love County; J. H. Hays, Judge.</p> <p>Action by W. L. Alexander against W. H. Bigham. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Woodward County; James W. Steen, Judge. </p> <p>Action by Mohamet B. Awad against John J. Bou-quot and others: Judgment for ''plaintiff, and defendants bring error.</p> <p>Some time in the year 1910 the defendant in error, hereinafter called the plaintiff,, being the owner of 160 acres of land in Ellis county,, executed a warranty deed conveying said land, leaving blank the name of the grantee therein, and delivered the same to one Chas. Awad, sometimes known as Chas. Messey, with authority to sell the said land for cash for the sum' of $1,200 or $1,500, or to trade the same for other land nearer Oklahoma City, and with authority to fill in the name of the grantee in the blank left for that purpose when a sale or trade was consummated. The plaintiff then left the State of Oklahoma, and some time thereafter Chas. Awad, or Messey, traded the said land to one Frank Beers for a stock of secondhand furniture, hardware, and other goods situated in the city of Woodward, Okla., caused Beers’ name to be filled in the blank in the deed, delivered the deed to Beers, and took a bill of sale to the stock of goods to himself. This appears to have been done about December 5, 1910. Thereafter Chas. Awad, or Messey, took possession of the stock of goods and conducted the business in his own name. Some time before December 24, 1910, this Chas. Awad, or Messey, under the name of Charlie Owad, advertised an auction sale of the stock of goods to be held on December. 24th. Thereupon the defendant the Howard Mercantile Company, a corporation, being the owner and holder of three notes executed by Chas. Owad to the Howard Mercantile Company, dated respectively May 27, October 30, December 24, Í909, and maturing respectively December 1, 1909, February 1, 1910, and December 1, 1910, began suit in the district court of Woodward county against said Chas. Owad, and caused, a writ of attachment to be issued in said suit and levied upon the stock of goods above mentioned. Chas. Owad then telegraphed to the plaintiff to come to Woodward; and in response to such telegram the plaintiff came to Woodward, and then learned for the first time that Chas. Owad had delivered plaintiff’s warranty deed to the land to Beers in exchange for the stock of goods, to which he had received a bill of sale in his (Chas. Owad’s) own name. Plaintiff then endeavored to get Beers to agree to a rescission and deed him back the land in Ellis county and take back, the stock of goods. This Beers refused to do, and thereupon plaintiff brought suit against John J. Bouquot, plaintiff in error, in which suit the other plaintiffs in error, hereinafter styled the defendants, eventually became parties, and caused a writ of replevin to issue to recover possession of the stock of goods held by the defendants, and also sought in such suit to recover damages for the detention of the stock of goods and for loss of profits by reason of the prevention of the sale advertised for December 24, 1910. At the trial plaintiff recovered judgment awarding him possession of the stock of goods and the sum of $1 as damages. In due time the defendants filed a motion for new trial, which being overruled, they excepted, and bring- this appeal.</p>

<p>1. EASEMENTS — Way of Necessity — Ownership of Land. A way of necessity is based upon tlie presumption of a. grant, apd will never exist if the two tracts of land are not shown at some time in the past to have belonged to one and the same person.</p> <p>2. INDIANS — Appropriation of Land — Allotments. The Act of Congress of April 26, 1906, c. 1876. 34 Sfta-t. 145, sec. 24, which provides that in the Choctaw, Chickasaw, and Seminole Nations roads two rods in width are established on all section lines, is prospective only in its operation, -and does not authorize the authorities to take for road puiposes. without compensation, , lands of Indians which had been ’allotted prior to the passage of said act.</p> <p>3. SAME — Opening of Section Line — Acquisition of Right of Way. An order made by county commissioners opening up a section line, which is rightfully closed, is ineffective unless the commissioners have first complied with section 7552, Rev. Laws 1910, by obtaining the right of way as therein provided.</p> <p>4. APPEAL AND ERROR — Invited Error — Admission of Evidence. Error cannot be based upon the admission of testimony brought out by the complaining party.</p> <p>(Syllabus by Mathews, C.j</p>

<p> Error from, District Court, Wagoner County; R. C. Allen, Judge. </p> <p>Action by Earl Baker against J. H. Leavitt and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. MUNICIPAL CORPORATIONS — Defective Streets — Action for Injuries — Petition. In an action by a member of tlie city fire department for damages against a city for failure to use ordinary care and diligence to keep its streets in a reasonably safe condition, etc., where the petition, among necessary allegations, charges “that the said defendant carelessly and negligently, without regard for the safety of lives of its employees in said fire department, and especially the safety and life of the plaintiff, permitted large and dangerous holes to be made and remain in said streets at the intersection of M. and H. streets, at which the wheels of said wagon, upon which the plaintiff was riding, dropped in said holes in said pavement, said carelessly and negligently allowed and permitted to be and remain therein by said defendant,” etc., held, as against a general demurrer, that the petition states sufficient facts upon which a conclusion may be fairly reached that the city had notice of the defects of which plaintiff compiains, in time, with the exercise of reasonable diligence, to have repaired the same</p> <p>2. SAME — Trial—Personal Injuries — Defective Streets — Notice of Defects — Sufficiency of Evidence. Evidence examined, and found sufficient to support the verdict, in which instance it was not error to refuse to sustain a motion to withdraw the case from the jury and render judgment, nor to refuse a peremptory instruction, for defendant.</p> <p>(Syllabus by Watts, 0.)</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Willie Fulsom, a minor, by his guardian, R. Broaddus, against Bruce Lyons and another. Judgment for plaintiff, and defendants bring error.

Error from District Court, Kay County; W. M. Bowles, Judge. Action by C. R. Brown and another against Mrs. Ethel E. Coppadge and another. Judgment for defendants, and plaintiffs bring error.

Error from, District Court, Rogers County; T. L. Brown, Judge. Action by King D. Blackwell and others against Robert T. McCáll, Jr., and others. Judgment for defendants, and plaintiffs bring error. ■

<p> Error from District Court, Rogers County; T. L. Brown, Judge. </p> <p>Action by King D. .Blackwell and others against J. Bartley Milam and another. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from District Court, Nowata County; T. L. Brown, Judge. </p> <p>Action by the Star Brick Company, a corporation, against the United States Fidelity & ■ Guaranty Company. Judgment for' plaintiff, and defendant brings error.</p>

<p>1. HOMESTEAD — Right of Surviving Spouse — Waiver. The fact that the surviving spouse of m decedent, appointed by the county court to administer the estate of such decedent, files an inventory in which the homestead is listed as a part of the assets of 'the estate, files a final account in which such homestead is listed, and procures the approval of said account and an order of distribution, in which order the court determines who the heirs to such estate are and their respective interests therein, does not deprive such spouse of the right to continue to possess and occupy such homestead in accordance with the terms of section 5265, Comp. Laws 1909 (section 6328, Rev. Laws 1910), and does not constitute a waiver or abandonment of such homestead so as to authorize the •partition of such homestead at the suit of another heir.</p> <p>2. JUDGMENT — Decree of Distribution — Conclusiveness — Matter Determined. A decree of distribution, made in the winding up of an estate is conclusive as to matters properly before the county court and involved in such hearing; that is, the determination of, who the legatees, devisees, and heirs to the estate are and their respective interests therein, but is not conclusive as to the right to the possession of real estate belonging to such estate, and does not preclude the surviving spouse of the decedent from ■ asserting the right to possess and occupy the homestead.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Caddo County; J. T. Johnson, Judge. Action by J. V. Stanley against Dean F. Baird and others. Judgment for plaintiff, and the defendant named brings error.

Error .from County Court, Canadian County; . W. A. Maurer, Judge. Action by the El Reno Foundry & Machine Company, a corporation, against the Western Ice Company, a corporation, wherein R. S. Trulock, trustee, intervened, and the Chicago, Rock Island & Pacific Railway Company, a corporation, was garnishee. Judgment for in-tervener, and from an order directing that money garnished be paid over to him, plaintiff brings error.

Error from Superior Court, Oklahoma County;. Edward ifewes Oldfield, Judge. Action by the State Exchange Bank against W. N. Hayes and another. Judgment for plaintiff, and defendants bring error.

<p>APPEAL AND ERROR — Case-Made—Making and Sex-ving — Extension.— Fixing of Order. The syllabus in Town of Okexnah v. Allen, 48 Okla. 757, 150 Pac. 669. is adopted as the syllabus in this cane.</p> <p>(Syllabus by t.he Court.)</p>

<p> Error from District Court, Oklahoma, County; Geo. W. Clark, Judge. </p> <p>■ Proceedings against C. F. Woodward by August Bruhwilder. From the judgment, Woodward brings error.</p>

<p> Error from Superior Court, Grady County; Will Linn, Judge. </p> <p>Action by W. T. Shannon against the Matthews-Linton Grain Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma- County; George W. Clark, Judge. </p> <p>Action by Joseph G. Street and another against the Fairlawn Cemetery Association. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Findings of Fact — Evidence. Where a ease is tried by the court without the intervention of a jury, upon controverted questions of fact, and there is evidence reasonably tending to support the findings of the trial court, such findings will not be disturbed on the weight of the evidence.</p> <p>%. BILLS AND NOTES — Bona Fide Purchaser — Alteration. Under sections 3502, 3593, Wilson’s Rev. & Ami. St. 1903, where a negotiable promissory note under date of December 2, 1905, is executed and delivered, and the payee alters same by erasing the name of one of the makers, which is without the consent of the comakers, and thereafter for value and without notice assigns same, such note is void in the hands of such assignee as 'against all of the comakers.</p> <p>(Syllabus by Watts. C.l</p>

<p> Error from County Court, Woodward County; Clyde H. Wyand, Judge. </p> <p>Action by. Claud Ray against S. C. Aldred. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Hughes County; John Caruthers, Judge. Action by Willie Alexander, by his next friend, Izora Lee, against J. Coody Johnson and others. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by W. R. Moore against the Wynnewood Cotton Oil Company. Judgment for plaintiff, and defendant brings error.</p>

<p>L TROVER AND CONVERSION — Pleading — Evidence — Defense. Where it is admitted by the pleadings that the defendant was in possession of the property alleged to have been converted at the time suit was instituted, evidence of the instructions given to the agent in relation to concentrating the defendant’s property at a given point'is immaterial.</p> <p>2. SAME — Mitigation of Damages — Tender. After the conversion of property has become complete, the defendant cannot escape liability, nor reduce the actual damages recoverable, by a tender back of the property.</p> <p>(Syllabus by Rittenhouse. (1)</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by J. W. Massey against Weston Atwood and others. Judgment for plaintiff, and defendants appeal.</p>

<p>1. MUNICIPAL CORPORATIONS — Limitation on Powera — Notice. •One who deals wth a municipality does so with knowledge of the legal limitations on it or its agents’ powers; and, if .in contracting with a municipality one goes beyond the limitations imposed, he does so at his peril.</p> <p>2. MUNICIPAL CORPORATIONS —Contracts —Validity. In the absence of a compliance by the council of a municipality with the requirements of section 574, Rev. Laws 1910, a contract. entered into by such municipality for planting trees therein, which contract provides that the municipality would pay any balance due for planting such trees, after deducting the amount paid, up to a stated time, by the. property owners of said municipality for , planting said trees, is unenforceable; and such contract imposes no legal liability upon such municipality. •</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Eliza J. Sanford against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. The appeal in this.case is taken from a judgment rendered in favor of the plaintiff by the district court of Oklahoma county in the sum of $1,500.

<p>1. APPEAL AND ERROR — Discretionary Ruling — Amendment to Pleadings. The granting or refusing permission by the trial court to amend pleadings after the trial has commenced rests within the sound judicial discretion of the trial court, and his action thereon will not be reviewed here unless it is shown that he has abused that discretion.</p> <p>2. LANDLORD AND TENANT — Repairs—Duty of Landlord, In the absence of an expressed stipulation to that- effect, the lessor of a building for business purposes is under no legal or implied obligation to keep the leased premises in repairs and tenantable.</p> <p>3. ESTOPPEL — Pleading—Sufficiency. A party entitled to an estop-pel need not in all cases formally plead the estoppel. If the facts constituting the estoppel are in any way sufficiently pleaded, he is entitled to the benefit of the law arising therefrom.</p> <p>4. TRIAL — Instructions—Amount of Recovery" — Evidence. It is not error for the court to instruct the jury what the amount of recovery should be in case they find for the plaintiff when there is no controversy over the amount due, provided they first find the controverted issues in favor of plaintiff.</p> <p>5. NEW TRIAL — Newly Discovered Evidence — Discretion. The granting of a new trial on the grounds of newly discovered evidence is largely within the discnetion of .the trial judge.</p> <p>(Syllabus by Mathews, O.)</p>

<p>1. GUARDIAN AND WARD — Guardian’s Deed — Fraud—Sufficiency of Evidence. The evidence has 'been examined and summarized in the opinion; and it is held that it is sufficient to warrant the court, in the exercise, of its equitable powers, to cancel the deeds .made by the guardian to the lands of the minor, and to ¡annul the order of the county court confirming same.</p> <p>2. JUDGMENT — Jurisdiction to Vacate — Fraud. The district courts of this state, in exercising their equity jurisdiction, have the power to vacate and annul orders or judgments of other courts, in a ■proceeding brought for that purpose, for fraud, inducing and entering into such order or judgment, where such fraud is extraneous ¡to the issues in the proceeding lattached, and especially where the court has been imposed upon by such fraud.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from District Court, Nowata .County; T. L. Brown, Judge. </p> <p>■ Action by Susan E. Adair, a minor, by Samuel Adair, her guardian, against George A. Elrod and others. Judgment for plaintiff, and defendants bring • error.</p>

Error from District Court, Nowata County; T. L. Brown, Judge. Suit by Edna B. Adair, a minor, by Samuel Adair, ber guardian, against George A. Elrod and others. Judgment' for plaintiff, and defendants bring' error.

<p>APPEAL AND ERROR — Cancellation of Instruments — Judgment Defective in Form — Ground for Reversal — Modification. G., a member of the Osage .Tribe of Indians, deeds land in the Osage Indian reservation, which was a part of his surplus allotment, to Creed, who afterwards deeds said land to Conrod. G. then sues C. and C. to recover possession of the land and to have the title thereto decreed to be in him, G., free of any rightful claim thereto of Creed or Conrod, alleging that Creed procured his deed from G. through fraud, and that the order of the Secretary of the Interior, removing his restrictions on the right to alienate the same, had-not become final and effective at the time he deeded said land to Creed, and that Conrod took his deed from Creed with knowledge of all the infirmaties of Creed’s title. Creed and Conrod file their answer to G.’s petition, in which they deny the allegations of G.’s petition which tend to establish G.’s title, sot out their own title, and pray that their own title be confirmed, and for such other relief as may be equitable, lmt the allegations of their answer, as a whole, were not sufficient to constitute a cause of action, entitling them to the affirmative relief granted them by the court, had the alleged facts of their answer been set up in a cross-petition or cross-bill. On the trial of the case the decree of the court, without specifically denying the plaintiff the relief prayed for by him, confirmed defendants’ title to the land land quieted it as against the claims and pretensions of the plaintiff. .</p> <p>Held, that while the decree was affirmative in form, it was, in substance, a denial of the relief prayed for by the plaintiff; that the judgment of the court should not be reversed 'because of the defect in the form thereof, but that said judgment should be so modified in form as to be simply a denial of the relief prayed for by the plaintiff, and affirmed as modified.</p> <p>(Syllabus by Wilson, C.)</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Action by Jim Butler, an infant, by his guardian, and another, against Martha Wilson. Judgment for defendant, and plaintiffs bring error.

<p>1. APPEAL AND ERROR — Death of Party Pending Appeal — Failure to Revive — Abatement of Judgment. Where an appeal has been dismissed by the Supreme Court upon the ground that the defendant in error died during the pendency of the appeal and before the submission thereof, the cause not having been revived during the time allowed therefor by statute, the judgment appealed from abates.</p> <p>2. JUSTICES OF THE PEACE — Appeal Bond — Right of Action-Abatement — Death of Party. The plaintiff having obtained a judgment in the justice court and the defendant appealing from such judgment to the county court, in which court judgment in the same amount is lagain rendered in favor of the plaintiff and against the defendant, the defendant duly perfecting its appeal to the Supreme Court, and thereafter, but before submission of the said appeal, the defendant in error dies and no revivor is had within the time allowed therefor by statute, the cause of action atetes, and the judgment appealed from is extinguished, so that no action can be maintained by the heirs or legal representatives of the deceased to recover upon the bond given by the defendant on. appeal from the justice court to the county court.</p> <p>3. APPEAL AN¿J ERROR — Supersedeas Bond — Abatement. Where the defendant in error dies while an appeal to the Supreme Court is pending, but before submission of the cause in said court, and no suggestion of his death nor motion to revive is filed by the legial representative of such person within the year next following his death, and thereafter plaintiff in error suggests the death of defendant in error and offers to consent to revivor, such offer not being accepted by -the legal representative of the deceased and •the Supreme Court dismissing the appeal on motion of the legal representative of the deceased upon the ground that no revivor was had within the time allowed by law, held, that the plaintiff in error, and sureties on the supersedeas bond were not liable in an action by such legal representative to recover on said bond.</p> <p>(Syllabus by Crow, C.)</p>

Error from District Court, Caddo County; J. T. Johnson, Judge. Action by J. V. Stanley against Dean F. Baird and others. Judgment for plaintiff, and the defendant named brings error.

<p> Error from, County Court, Tulsa County; N. J. Gubser, Judge. </p> <p>Action by R. E. Lynch against D. R. Hampton and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Woodtuard County; James W. Steen, Judge. Action by the New State Bank against Louis Char-voz, Sr., and others. Judgment for plaintiff, and defendant Cecil Charvoz brings error.

Error from District Court, Noble County; W. M. Bowles, Judge. Action by Ettie Michael against the Morrison State Bank and others. Judgment for plaintiff, and the defendant named brings error.

<p> Error from District Court, Murray County; R. McMillan, Judge. </p> <p>Action by Margaret Cromley against Bob Cunningham • and George Cunningham. Judgment for plaintiff against Bob Cunningham, but in favor, of George Cunningham. From an order allowing new trial, George Cunningham brings error.</p>

<p> Error from District Court, McIntosh County; Presley B. Cole, Judge. </p> <p>Action by Charles J. Baugh against William H. Hudson and others. Judgment for defendants, and plaintiff brings error.</p> <p>The cause of action in this case was for the possession of certain land described in the petition. Plaintiff also asked that during the pendency of the action the defendants be restrained from interfering with the peaceable and exclusive possession of the plaintiff, and from developing the same for oil and gas, and that at the final hearing the defendants be enjoined from interfering with the rights of the plaintiff under a certain oil and gas lease set out in the petition. The case was heard upon an application for a preliminary injunction, and much evidence^ both oral and by way of affidavit, was introduced. On the hearing of the application, the court rendered judgment refusing the preliminary injunction, refusing the plaintiff any relief, and dismissing the action, which makes it a final judgment. The plaintiff brings the case to this court by petition in error and case-m'ade, but there is' no motion for a new trial in the record, nor is it certified to by the clerk, so as to constitute a transcript.</p>

<p>BILLS AND NOTES — Corporations—Indorsements—Authority of Corporate Officer. Where a negotiable promissory note payable to the Western. National Insurance Company was delivered before maturity to an innocent bolder for value, there appearing upon the bacli thereof the following writing: “Western National Insurance Company, by B. Q. Blakeney, Treas.” — and also,.“For value received we hereby assign and transfer the within note, together with all my right, title, and interest in and to the mortgage deeds securing the same to C. M. Howard, Wichita, Kansas, without recourse. June 15th, 1910. Western National Insurance Go., by B. Q. Blakeney, Treas.,” held: (1) That the writing over the last signature constitutes a qualified indorsement under the Negotiable Instruments Law (Bev. Laws 1910, secs. 4014-4239), transferring the note to the indorsee unaffected by any equities existing between the original parties thereto: (2) that, even if such writing could be treated as a mere assignment, then by reason of the signature of the payee appearing in two places upon the back of the note, it would not be clear whether such payee intended to sign as indorser or assignor, and payee is therefore deemed an indorser; and. (3) the corporation having ratified the negotiation and received the proceeds of the note, the fact that its treasurer, by indorsing, it, may have acted beyond the scope of his specific powers, will not avail the makers of such note or affect their liability thereon to a holder in due course.</p> <p>(Syllabus by Bleakmo'ie, (’.)</p>

<p>1. MORTGAGES — Purchaser of Mortgaged Property' — Notice — Inadequacy of Price — Evidence. Where a party sues to foreclose a real estate mortgage, which was not put on record until a third person had purchased the land, the material issue is whether the purchaser at or before the timé he purchased had actual knowledge of the existence of the mortgage, or was in possession of such facts as put him on notice, xind inadequacy of price is not an issue in the case, but may be shown by the evidence, only as a circumstance tending to support the issue that the purchaser had • notice of the existence of the mortgage, and took into consideration its payment in fixing the price he paid for the land.</p> <p>2. CONTINUANCE — Grounds—Absence of Witness. Where a cause has been pending for a year and a half, and the plaintiff has had a continuance on account of an absent witness, who is not in the United States, and with whom the plaintiff is not in communication, and plaintiff does not know where he is, and can give no definite assurance as to when he can procure his deposition or presence in court, it is not error to refuse the plaintiff a further continuance under such a showing.</p> <p>3. MORTGAGES — Purchaser From Mortgagor — Evidence. A purchaser of real estate, when sued on an unrecorded mortgage, may show that his vendor told him the land was unincumbered, for the purpose of showing that he used reasonable diligence to ascertain the exact status of his title before accepting it.</p> <p>4. TRIAL — Refusal of Instructions Covered. Where a court instructs' the jury clearly, fairly, and fully upon every material phase of a case, it is not error to refuse to give any and all requested instructions.</p> <p>5. NEW TRIAL — Grounds — Interference With Argument — Interposing of Objections. Counsel h’as the right, to object to the argument of opposing counsel if he thinks it is improper or outside of ■the record. Though it may become annoying, yet it is a matter within the control of the trial court; and there would have to be a great abuse of the privilege to “object” before this court would be justified in granting a new trial on that ground.</p> <p>(Syllabus by Brett, C.)</p>

Error from District Court, Muskogee County; R. P. de GraffenHed, Judge. Mandamus by the Legal Record Publishing Company, a corporation, against W. P. Miller, Mayor, and others. Judgmfent for defendants, and plaintiff brings error.

<p> Error from County Court, Coal County; P. E. Wilhelm, Judge. </p> <p>Action by N. T. Tiner against the Chicago, Rock Island & Pacific Railway Company. ■ Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeovm, judge. </p> <p>Action by Mrs. John Donahue and John Donahue against the American National Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

<p> Error from District Court, Murray County; R. McMillan, Judge. </p> <p>Action by R. H. Earl against the St. Paul Fire & Marine Insurance Company, of St. Paul, Minn., a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by Cora 'B. Terry against the Modern Woodmen of America. A demurrer to defendant’s answer was sustained, and defendant brings error.

<p>Error from County Court, Sequoyah County; . J. G. McComer, Judge.</p> <p>Action by A. H. Henderson against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Garfield County; Dan Huett, Judge. </p> <p>Action by Farmers’ State Bank of Ames, Okla., against Joe Harp and another. Judgment for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Blaine County; James R. Tolbert, Judge. </p> <p>Action by the Roman Nose Gypsum Company against the Oriental Cement Plaster Company. Judgment for plaintiff, and defendant brings error.</p>

Error ■ from District Court, Grant County; W. M. Bowles, Judge. Action by S. J. Caldwell against Ora L. Kuykendall and others. Judgment for plaintiff, and the defendant named brings error.

Error from, District Court, Hughes County; John Caruthers, Judge. Action by Elizabeth Stevens against James E. Whitehead. Judgment for plaintiff, and defendant brings error. This appeal is prosecuted from the district court of Hughes county, Okla., in which court the defendant in error, Elizabeth Stevens, was plaintiff in both actions hereinafter mentioned, and will, for the purpose of this opinion, be styled the plaintiff, as she appeared in the court below.

<p>1.- KEAPPRAISEMENT. 'Section 5177, Rev. Laws 1910, provides that in all cases where real estate is taken on execution and appraised, and twice advertised for sale and remains unsold for want of bidders, it is the duty of the court to set aside such ap-praisement and order a new one.</p> <p>2. EXECUTION — Sale — Appraisement — Invalid Judgment. Where the judgment upon which the execution is issued is invalid and insufficient to support a confirmation of sale, an attempted ap-praisement is also invalid, and is not controlled by section 5177, supra.</p> <p>(Syllabus by Rittenhouse, C.)</p> <p>ON PETITION FOR REHEARING.</p> <p>8. EXECUTION — Sale of Mortgaged Land — Validity—Appraisement. Where, under the provisions of section 5156, Rev. Laws 1910, execution is levied upon land incumbered by mortgage, it is the duty of the appraisers to estimate and return the value of the property subject to the mortgage, which is ¡the value of the rights and interests of the mortgagor debtor in such property, which alone may be sold. -A sale thereof for two-thirds of more of such appraised value is valid.</p> <p>' (Syllabus by Bleakmore, G.)</p>

Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by Charles H. Overton and another against C. A. Bruce and wife. Judgment for plaintiffs, and defendants bring error.

Error from Superior Coitrt, Muskogee County; Farrar L. McCain, Judge. Action by C.arrie A. Moore, administratrix of the estate of John J. Moore, against R. E. Reed. Judgment for plaintiff, and defendant brings error.

<p>TOWNS — Township—Tax Levy — Limit. The total township levy for ' current expenses cannot, without a vote of the people, exceed 3 mills in any one year; and the TO per cent, which the excise botod is authorized to add for delinquent taxes, when added to the sum necessary for current expenses, must not increase the levy beyond the limit of three mills.</p> <p>(Syllabus by Hatchett, C.)</p>

<p>1. ANIMALS — Restraining Stock — Requisites of Notice. Under Comp. Laws 1909, see. 168, also Rev. Laws 1910, sec. 153, tlie notice required to be given by a party restraining stock, to tlie owner thereof, or tlie party having them in charge, need not be in writing.</p> <p>2. SAME — Damages—Notice to Assess — Computation of Time. The 24 hours allowed under the same sections for the giving of notice to the justice of the peace to be and appear on the premises and assess damages must he estimated exclusive of Sunday.</p> <p>(Syllabus by Bowles, O.)</p>

<p>1. SALES — Breach of Warranty — Evidence of Value — Price. In au action involving a breach of warranty in the sale of personal property, the purchase price is competent evidence of the value of the property if-it had been as warranted.</p> <p>2. APPEAL AND ERROR — Harmless Error — Instructions, (riving an instruction which' as au abstract proposition is erroneous, but, when iapplied to the evidence, has the same meaning as it would have had if it were strictly correct, is not reversible error.</p> <p>3. SADIE — Admission of Evidence. Where a written contract of purchase which contains a warranty is already in evidence, the admission of a letter which does not tend to prejudice the jury nor enlarge the warranty, although it is incompetent, is not reversible error.</p> <p>(Syllabus by Hatchett, C.) -</p>

<p>1. INDIANS — Indian Lands — Removal of Restrictions — Order of Secretary. An order of the Secretary of the Interior removing the restrictions upon the alienation of Indian lands, which order provides that same shall not become effective until 30 days- after date, does not have the effect of removing restrictions until the. 30 days have expired.</p> <p>2. 'SAME — Surplus Allotment — Suspension of Order — Operation of Statute. Where the Secretary of the Interior made such order as' to smplus allotment of a full-blood Creek Indian on April 21, 1906, s'arne had not taken effect on April 2G, 1906, and the act of Congress of the latter date, extending restrictions upon the alienation of the allotments of full-blood Indians for a period of 25 years, superseded the order of the Secretary of the Interior, and such order was indefinitely suspended and never took effect.</p> <p>3. SAME — Alienation of Allotment — Validity. A deed made on July 31, 1906, by a full-blood Creek Indian after the Secretary of the Interior had made inn order on April 21, 1906. is absolutely void because of the act of Congress of April 26, 1906; and a subsequent deed executed by the Indian’s vendee, 'as well as a mortgage taken by such vendee to secure a part of the purchase price of the land, are also void.</p> <p>(Syllabus by Hatchett, C.)</p>

<p>1. JUSTICES OF THE PEACE — Appeal Bond —Order of County Judge. A county judge at chambers or duting vacation lias no authority-to order that'a bond given on appeal from a justice of the peace court, shall be strengthened by obtaining additional sureties or that a new bond be executed.</p> <p>2. SAME. In counties where county court is held at more than one place, and an appeal is filed in said court during vacation at one place, the county judge sitting at chambers at another place of holding court has no authority to order a new appeal bond to be executed or the old one amended, and such order, when made, is coram non judice and void.</p> <p>3. SAME — Time for Amendment of Bond — Right. When a motion is made on .the first day of the term to dismiss an appeal from a justice’s court on. account of a defective appeal bond, and the appellant, asks for time in which to cure the objections to the bond, a reasonable time should be granted, and it is an abuse of discretion to forthwith dismiss the appeal.</p> <p>(Syllabus by Hatchett, O.)</p>

<p> Error from District Court, Osage County; R. H. Hudson, Judge. </p> <p>Action by the Farmers’ & Merchants’ Bank of Duke against J. A. Owens. Judgment for plaintiff, and defendant brings error. .</p>

Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by Tom Wooley against the Union Coal Com.pany, a corporation, and others. Judgment for plaintiff, and defendants bring error. This was an action by the defendant in error, plaintiff below, against the plaintiffs in error, defendants below, to hold the defendants liable to the payment of a judgment for $5,697.12 recovered by him against the Adamson Coal & Mining Company.

<p> Error from County Court, Muskogee County; Thos. W. Leahy, Judge. </p> <p>Actíoñ by John Haygood against Burrell Starr and another. Judgment for plaintiff, and defendants bring error.</p>

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

<p>1. APPEAL AND ERROR' — Review—Presumptions. Where the plaintiff 'brings an action and, npon the trial thereof,' loses as to a portion of the relief sought, and, within the statutory time, files a motion for a new trial, and, after the expiration of the statutory time, files a supplemental motion for a new trial, and thereafter' the court, on consideration of said motions, sustains them and grants the plaintiff a new trial, and later the case is again tiled, resulting in a judgment for the plaintiff for the relief sought, and the losing party appeals to this court and seeks a reversal on the ground that the trial court was without authority to entertain said supplemental’motion, because the same was not an amendment of the original motion and was tiled after the expiration of the statutory time, but does not complain of the sustaining of said original motion, held, that the presumption is that the trial court set aside said original judgment on the mo- • tion that it had a right to consider.</p> <p>3. FRAUDULENT CONVEYANCES — Relation of Parties — Husband and Wife. The fact that the parties to a conveyance of real estate are husband and wife does not, of itself, establish fraud in the transfer, as against a creditor of the husband, but their relation may properly be considered in connection with other evidence, facts, and circumstances tending to impeach the transaction. Such transactions should be closely scrutinized.</p> <p>3. SAME — Remedies of Creditor — Evidence. Evidence examined, and held to fully sustain the judgment of the trial court.</p> <p>(Syllabus by Dudley, O.)</p>

<p> Error from County Court, Cleveland County; F. B. Swank, Judge. </p> <p>Action by Mrs. E. L. Boling against T. G. Shields and another. Judgment for plaintiff, and defendants bring error.</p>

<p>1. APPEAL AND ERROR — Harmless Error — Admission of Evidence. Error cannot be based upon the admission of incompetent evidence which tends to prove a fact which is not controverted, but admitted.</p> <p>2. BROKERS — Right to Commission — Procuring Cause of Sale. If the owner of a certain lot lists the same with a firm of real estate agents, and agrees that the listing shall be exclusive as to certain named prospective buyers, and that he would not deal with said, prospective buyers except through said agents, and said agents . enter into negotiations with said prospective buyers, show them the property and interest them in the purchase of the same, and introduce them to the said owner, and the said sale is finally consummated by the owner or another agent, but the aforesaid agents were the active, efficient, and procuring cause of the sale, then said agents would be entitled to the commission.</p> <p>3. SAME — When property has been listed for sale with different real estate agents, the agent who succeeds in bringing the seller and purchaser together and induces them to enter into the contract is entitled to the commission.</p> <p>4. TRIAL — Instructions—Contentions of Parties. Each party to a controversy is entitled to have his theory of the case presented to the jury by proper instruction, provided the same has been properly pleaded and he has introduced evidence tending to support such theory.</p> <p>(Syllabus by Mathews, C.)</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by John Thacker against the Farmers’ Hardware & Implement Company and others. Judgment for plaintiff, and defendant named brings error.

<p> Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. </p> <p>Action by Lydia A. Wollard against the Shawnee-Tecumseh Traction Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action by John Edgar Hill and others against Mattie Hill and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Logan County; A. H. Huston, Judge. Action by G. T. Wadkins and another, partners, doing business as the “Elite Theater,” against A. O. Farquhar-son and another. Judgment for plaintiffs against the defendant named, and he brings error.

Error from Superior Court, Muskogee Comity; Farrar L. McCain, Judge. Action by George S. Wilson and another, trustees, against August Nelson and others. Judgment for defendants, and plaintiffs bring error.

<p>1. APPEAL AND ERROR — Case-Made—Settling and Signing-Ground for Dismissal. Where a case-made fails to show that notice has been given of the time and place of presenting the same for settling and signing, or that defendant in error appeared or was represented at such settling and signing, or waived the right to be there, such failure is good ground for dismissal.</p> <p>2. APPEAL AND ERROR — Technical Irregularities — Affirmance. Where the record shows beyond doubt that defendant is indebted to plaintiff in the amount of the judgment recovered; that defendant .was oh the witness stand and was interrogated with regard to the account, and failed to deny, or offer any evidence in denial of .the fact that he was so'indebted, and offered no other defense or ¡reason why judgment should not be rendered against him, and urges in this court only irregularities of a highly technical character, the judgment will be affirmed, regardless of technical irregularities not involving the merits of the case.</p> <p>(Syllabus by Brewer, O.)</p>

<p> Error from County Court, Comanche County; H. N. Whalin, Judge. </p> <p>Action by W. T. Wynn against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BILLS AND NOTES — Transfer—“Holder for Value” — Consideration — Pre-existing Debt. Where the purchase of a promissory-note is made in consideration that the buyer of such note credit the purchase price of same on an existing indebtedness owing by the seller to the 'buyer of such note, such purchaser is a “holder for value.”</p> <p>2. SAME — Instructions—An instruction that “if the note in question was obtained by plaintiff by giving credit on a debt due from the assignee of said note to the plaintiff, then it would not be a valuable consideration,” is in direct violation of section 4075, Rev. Laws 1910, and reversible error.</p> <p>(Syllabus by Collier, C.)</p>

<p> Error from County Court, Comanche County; H. N. Whalin, Judge. </p> <p>Action by Peter Gevers against Albert Wilken and another. Judgment for plaintiff in the county court on appeal from a justice’s judgment, and defendants bring error.</p>

Error from County Court, Okmulgee County; Mark L. Bozarth, Judge. Action by Charles J. Kappler and another against Fred E. Storm and others. Judgment for defendants, and plaintiffs bring error. This controversy arose under claim by plaintiffs in error, hereinafter designated' plaintiffs, against defendants in error, hereinafter called defendants, for a balance due of $100 for legal services rendered by plaintiffs to defendants.

<p>Error from District Court, Wagoner County; . R. C. Allen, Judge.</p> <p>Action by Josie Perfyman, a minor, by James Johnson, guardian, against Gertrude Moran and others. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Alfalfa County; F. M. Gustin, Judge. Action by the Star Mercantile Company against Ed Smith. Judgment for plaintiff on appeal to the county-court from a justice’s judgment, and defendant brings error.

<p> Error from District Court, Logan County; A. H. Huston, Judge. </p> <p>Action by Oklahoma Farm Mortgage Company, a corporation, against Frankie E. Erwin and others. Judgment for plaintiff, and defendants bring error.</p>

<p>APPEAL AND ERROR — Execution Sale — Proceedings to Confirm— Necessary Parties — Purchasers. Purchasers at a sheriff's sale are necessary parties in this court in a proceeding to reverse an order of the district court confirming sheriff’s sale of lands under execution, and ordering a deed to issue to such purchaser. ■</p> <p>(Syllabus by Devereux, C.)</p>

<p>1. TRIAL — Motion to Direct Verdict — Evidence Considered. A motion to direct a verdict admits all the facts and inferences to be drawn therefrom in favor of the party against whom the motion is directed, and leaves for consideration only such evidence as is favorable to the party against whom such motion is directed.</p> <p>2. MUNICIPAL CORPORATIONS —Action to Recover Statutory Penalty — Burden of Proof. In an action for a statutory penalty, the burden is on the plaintiff to prove all facts necessary to bring the case under the provisions of the statute.</p> <p>3. SAME — In an action for the penalty imposed by section 6777, Rev. Daws 1910, against one not an officer of the municipality, the burden is on the plaintiffi to show that the party receiving the money had notice that the contract under which it was paid was unlawful, fraudulent, or void.</p> <p>4. SAME — Right of Action. In an action by a creditor of a municipal corporation, the burden is on him to show that all provisions of the law were complied with before his contract was entered into, and it is not material that he had no notice of the failure to comply with the statutes, but an action for a penalty under section 6777, Rev. Daws 1910, cannot be sustained, unless the defendant had notice of the vice in the contract under which the money is paid.</p> <p>(Syllabus by Devereux, O.)</p>

<p>1. CROPS — Nature of Property — Crops, unsevered from the soil, are ordinarily part of the realty; but, when severed from the soil, tliéy. become personal property.</p> <p>2. CHATTEL MORTGAGES — Description—Sufficiency. Á description in a chattel mortgage, which is sufficient to put a third person upon inquiry which, when pursued, will enable him to ascertain the property intended to be included in said mortgage, is good.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from Superior Court, Tulsa County; M. A. Breckenridge. Judge. </p> <p>Action by John H. Wilkes against the Tulsa lee Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. PHYSICIANS AND SURGEONS — Revocation of License — Proceedings — Parties. The state is not a necessary party to a proceeding before the State Board of Medical Examiners to revoke the license of a physician.</p> <p>2. SAME — ‘‘Un-Professional Conduct” — “Incurable Disease.” In the second clause of section 6905. Rev. Daws 1910, defining “unprofessional conduct" of, a physician as “ * * * the obtaining of any fee on the assurance that an incurable disease can be permanently cured,” the words “incurable disease” mean any disease which has reached an incurable stage in the patient afflicted therewith, according to the then genera! state of knowledge of the medical profession.</p> <p>3. SAME — Validity of Statute. The second clause of section 6905, Rev. Laws 1910. is valid, and defines an offense against professional conduct on the part of physicians.</p> <p>4. SAME — Proceedings to Revoke License — Complaint. The State Board of Medical Examiners in a proceeding before it to revoke the license of a physician acts in an administrative, and not a judicial capacity, and the same strictness in pleadings and practice is not required before it as before a judicial tribunal. It is sufficient if the accused is informed by the complaint of the wrong charged against him and the particular instances of its perpetration charged, and has an opportunity to defend against proof of such charges, and the proceedings are free from prejudice, fraud, or oppression.</p> <p>5. SAME — Evidence—Advertisement. An advertisement published by a physician held properly admitted in evidence against him upon a charge of obtaining a fee on the assurance that an incurable disease can be permanently cured by him, as tending to prove the assurance of permanent cure where such assurance is denied by the physician.</p> <p>6. APPEAL AND ERROR — Harmless Error — Findings of Faet— Evidence — It is error for the court to make a finding of fact upon a motion upon which all evidence was excluded, but, where the findings of tlie court are supported by tlie evidence, and are sufficient to sustain tlie judgment of tlie court, sucli error is not so prejudicial as to warrant a reversal.</p> <p>7. PHYSICIANS AND SURGEONS — Revocation of License — Sufficiency of Evidence. Evidence considered, and held to sustain the judgment of the court.</p> <p>(Syllabus by Rummons, C.)</p>

<p> Error from County Court, Gh'ady County; N. M. Williams, Judge. </p> <p>Action by J. T. Allen against M. V. Gordon and wife.</p> <p>Judgment for plaintiff, and' defendants bring error.</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by the Board of County Commissioners of Oklahoma County against Hathaway Harper. Judgment for plaintiff, and defendant brings error.</p>

<p> Err07- from District Court, Major County; James W. Steen, Judge. </p> <p>Action by Charles Foltz, administrator of the estate of Sidney Foltz, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment' for plaintiff, and defendant brings error. Revived in the name of Maggie Foltz, as administratrix of the estate of Sidney Foltz, deceased.</p>

Error from Superior Court, Oklahoma County; Eckuard Dewes Oldfield, Judge. Action by the Woldert Grocery Company against J. E. Rose, doing business as the Rose Commission Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Caddo County; J. T. Johnson, Judge. Action by William J. Murphy and another against James G. Depenbrink and another. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Garvin County; R. C. Allen, Assigned Judge. Action by Frost & Saddler, a copartnership composed of N. B. Frost and another, against Robert Dyer and others. Judgment for plaintiffs, and defendant J. A. Rollow brings error.

<p> Error from District Court, Canadian County; John J. Carney, Judge. </p> <p>Action by W. F. Sheets against. the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>EJECTION OF PASSENGER. Syllabus the same as in Chicago, It. I. & P. By. Co. y. Sheets, ante, p. —, 154 Pac. 550.</p> <p>(Syllabus by Bleakmore, C.)</p>

Error from Superior Court, Pottawatomie County; 'George C. Abernathy, Judge.' Action by S. W. King, Jr., and others, a copartnership doing business as King, Collie & Co., against J. A. Farris. Judgment for defendant, and plaintiffs bring error.

<p>Error from District Court, Canadian County; John J. / Carney, Judge.</p> <p>Action by the National Life Insurance Company against M. F. Hale. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from Superior Court, Pittsburg County; W. C. Leidtke, Judge. </p> <p>Action by J. H. Gallagher against James E. Jones. Judgment for defendant for less than claimed, and he brings error.</p>

Error from District Court, Alfalfa County; James W. Steen, Judge. Action by the Midland Savings & Loan Company, a 'corporation, against Orna J. Neighbor and others. Judgment for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — .Case-Made—Summons—Dismissal—Grounds. Where the defendant in error was not served with a notice of the signing and settlement of the case-made, and such notice was not waived, and where the signature of the trial judge who signed the case-made is not attested by the clerk of the court and the seal thereof, and the case-made was not filed in the court below, and where the defendant in error has not waived service of summons, and the summons has not been served, and the time has expired in which the appeal and record can be perfected, this court has no jurisdiction in the premises, and the attempted appeal will be dismissed.</p> <p>(Syliabus by Watts, O.)</p>

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by Charles Page against W. T. Tryon. Judgment for defendant, and plaintiff brings error.</p>

<p> Error from District Court, Garvin County; ■ R. McMillan, Judge. </p> <p>Action by the Board of County Commissioners of Garvin County against Alvin F; Pyeatt. From the judgment, the board brings error.</p>

Error from County Court, Payne County; W. H. Wilcox, Judge. Action by Danciger Brothers, a co-partnership, against N. A. Stitch and another. Judgment for the plaintiff, and defendants bring error.

Error from District Court, Payne County; A. H. Huston, Judge. Action by George S. Rusco and another against James Ryan and another. Judgment for defendants, and plaintiffs bring error.

Eitot from District Court, Ottawa County; Preston S. Davis, Judge. Mandamus by the State, on the relation of E. D. Ficklin, administrator of the estate of James Welch, deceased, and another, against Vern E. Thompson, Judge of the County Court of Ottawa County. From an order granting writ of mandamus, defendant brings error.

<p> Error from County Court, McIntosh County; Ben D. Gross, Judge. </p> <p>Action by the Mauer Mercantile Company, a corporation, against G. S. Chenault. Judgment for plaintiff, and defendant brings error.</p>

<p>1. BILLS AND NOTES — Negotiable Note — Innocent Purchaser— —“Indorsee.” Wlien the payee of a negotiable promissory note transfers it by indorsing thereon “Payment guaranteed. Protest waived,-’ tlie purchaser is an “indorsee,” within the rule pro- • tecting an innocent purchaser of such paper for value and before maturity against defenses good between, the original parties.</p> <p>2. SAME — Commercial Indorsement in Due Course. The tendency of the law, when the status of a party who places his name upon the back of a negotiable instrument is under consideration, is to resolve all doubtful cases toward holding the same -to be a commercial indorsement in due course.</p> <p>3. SAME — Simple Indorsement — Effect. A simple indorsement by the payee of his name upon a note serves the double purpose of transferring the title to the holder and of charging the pavee with the obligation to pay it in event the maker, upon presentation, declines to honor it. ■</p> <p>4. PLEADING — Action on Note — Judgment on Pleadings. Where plaintiff declares upon an indorsed negotiable promissory note., and a copy of the note is attached to the petition showing an undated indorsement, and defendant does not deny such indorsement under oath or fails to plead facts showing that plaintiff took the note with knowledge of such infimiities as would operate to defeat it between the original parties, plaintiff is entitled to judgment upon the pleadings.</p> <p>(.Syllabus by Mathews, C.)</p>

<p> Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. </p> <p>Action by the First National Bank of Chandler against Della M. Owen. From the judgment, Della M. Owen brings error:</p>

<p> Error from District Court, Custer County; James R. Tolbert, Judge. </p> <p>Action by Wesley S. Walker against Addison Walker, Executor of Wm. M. Walker, deceased. From the judgment the executor brings error.</p>

Error from District Court, Kay County; W. M. Botóles, Judge. Action by the A. L. Jepson Manufacturing Company, a corporation, against A. C. Shank and another. Judgement for defendants, and plaintiff brings error.

<p>APPEAL AND ERROR — Failure to File Brief — Reversal of Judgment. The same as the second paragraph of the syllabus in Taylor et al. v. J. H. Wade & Co., 44 Okla, 294, 144 Pac. 559.</p>

<p> Error from District Court, Hughes . County; John Caruthers, Judge. </p> <p>Action by Hiram L. Davis against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. JUDGMENT — Res Adjudicata — “On the Merits.” A judgment rendered upon a demurrer to a petition in a former suit between • the same parties and upon the same facts pleaded in a .subsequent action is a judgment “on-the merits,” and is final and conclusive until reversed on appeal, and is a bar to the, subsequent action.</p> <p>2. SAME — Facts Not Pleaded. In the absence of exceptional facts excusing a failure to do so; a party should plead all the material-facts that constitute his claim or defense, and failure so to do cannot lie made the basis of another action.-</p> <p>(Syllabus by Bleakmoré, O.)</p>

<p>1. CHATTEL MORTGAGES — Possession of Property — Right—“Conversion.'’ Where a chattel mortgage, contains a clause giving the mortgagee the right, upon default by the mortgagor in making payments provided for, to take possession of the property and sell i(. upon such default the. mortgagee has the right to take peaceable possession, and although he has not the right to use foice in taking possession', yet the mere fact that the. mortgagor refused to consent to the taking does not. constitute “conversion.”</p> <p>2. SAME — Foreclosure—Evidence—Purchase at Receiver’s Sale. Where the judge has appointed a receiver and ordered the property sold and the sale has been effected, it is error for the court, upon the trial of the cause to foreclose the mortgage, to peremptorily discharge the receiver and set aside his acts under the receivership and to exclude the evidence of the purchase of the property by the plaintiff at the receiver’s sale.</p> <p>3.- SAME — Instructions—Damages. It is error for the. court to instruct'the jury that the defendants, the mortgagors, are entitled to recover the value of the property from the plaintiff when the plaintiff took possession of it,- under a chattel mortgage autlioriz-ing it to do so upon default by tlie mortgagors, when the taking did not constitute a conversion.</p> <p>(Syllabus by Hatchett, C.)</p>

<p> Error from County Court, Kiowa County; . J. W. Mansell, Judge. </p> <p>Action by J. D. Lankford, Bank Commissioner, against S. D. Bailey. Judgment for plaintiff, and defendant brings error.'</p>

Error from County Court, Okmulgee County; George A. Johns, Judge. Action by Harry A. Kirkhart against Dallas B. Linkhart. Judgment for plaintiff on appeal from a justice’s judgment, and defendant brings error.

<p>1. CARRIERS — Shipment of Cattle — Pleadings—Issues—Evidence. It is error for the court to allow • the introduction of evidence tending to support an issue not raised by the pleadings, where objected to on that ground.</p> <p>2. INTERSTATE SHIPMENT CONTRACT — Waiver of Provisions. Quaere: Under'the rules of decision of the Supreme, Court of Hie United States, in construing the Carmack Amendment (Act Cong. June 29. .1906. c. 3591. sec. 7, pars. 11, 12. 34 Stat. 584, 595. amending Act. Cong. Feb. 4, 1887, c. 104, sec. 20, 24 Stat. 379, 386. [U. S. Comp. St. 1913, sec. 8592]), can a waiver of the provisions of a contract for an interstate shipment of live stock, requiring notice in writing of any damage to the stock before their removal from the placo of destination, etc., be shown in any other way than that named in the contract, viz.: “The written notice herein provided for cannot and shall not be wai ral by any perdón, except a general officer of the company and he only in writing”?</p> <p>(Syllabus by "Brewer, C.)</p>

<p> Error from County Court, Craig County; S. F. Parks, Judge. </p> <p>Action by A. P. Goforth against the M. J. Spaulding Implement Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Adair County; John H. Pitchford, Judge. Action by J. A. Wright and others, co-partners, as Wright & Brigance, against the North British & Mercantile Insurance Company, a corporation. Judgment for plaintiffs, and defendant brings error.

<p>COUNTIES — Construction of Courthouse — Contract With Architect— Damages — liability of County. On (he '5th of November. 1908, the county commissioners of Coal county, having decided to erect a courthouse for that county upon the “rental plan,” entered into a contract with W. to prepaie plans for same and superintend 'its construction, for which ho was to be paid 5 per cent, of the sum expended in construction. For legal reasons, the project was abandoned. Afterwards bonds to provide funds for the'construction of the courthouse were voted. W. offered his services as architect as provided in the original contract. The same was refused, the original contract ignored, and the county commissioners employed other architects. Held, the county was ’not liable to W. for damages sustained.</p> <p>(Syllabus by Mathews, O.)</p>

<p>TROVER AND CONVERSION — Conversion of Mortgaged Chattels— Evidence. Where a stock of merchandise is traded for land, notes secured by chattel mortgage are executed for the. difference between the two properties, and the mortgagor sells at public sale such chattel property, and the mortgagee, acting as clerk of such sale, retains the proceeds and is sued for conversion thereof, held, that evidence of the entire transaction between the parties is competent.</p> <p>(Syllabus by Rittenhouse. C.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>■ Action by C. D. Osborne & Co. against Fannie White. Judgment for defendant, and plaintiff brings error.</p>

Error from County Court, Oklahoma County; John W. Hayson, Judge. Action by Solomon Hamberger and Israel Hamberger, partners doing business as Hamberger' Bros. Shoe Company, against Fannie White. Judgment for defendant, and plaintiffs bring error.

<p> Error from County Court, Muskogee County; c, Thomas W. Leahy, Judge. </p> <p>Action by A. T. Ingram against Sarah McClure. Judgment for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Failure to Prosecute — Dismissal. Dismissed ior failure to prosecute under rule 1 (38 Okla. vi, 137 Pac. ix).</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by A. M. Loftis against Norman Lee. Judgment for plaintiff; and defendant brings error.</p>

<p> Error from District Court, Craig County;. . Preston S. Davis, Judge. </p> <p>Injunction by Charles E. McClellan against E. D. Ficklen. Judgment for defendant, and plaintiff, brings error.</p>

Error from, District Court, Sequoyah County; John H. Pitchford, Judge. Action by Ora Pressley and another, infants, by Emmett N. Ellis, as guardian, against the Incorporated Town of Sallisaw; a municipal corporation, and another. Judgment for defendants, and plaintiffs bring error.

Error from County Court, Tulsa County; Conn Linn, Judge. Action by the Western Supply Company, a corporation, against the St. Louis Cordage Mills, a corporation. Judgment for plaintiff, and defendant brings error.

Error from District Court, Comanche County; J. T. Johnson, Judge. Action by E. O. Gillam against- George Marker, and, defendant dying, Albert Marker, administrator of his estate, was substituted. Judgment for plaintiff, and defendant brings error.-

<p>1. OFFICERS — Removal of Appointee — Appointing Power. Where an officer holding under appointment is guilty of malfeasance or maladministration in office, as a general rule the appointive power carries with it the inherent power of removal, unless prohibited by law.</p> <p>2. MUNICIPAL CORPORATIONS — Officers—Power to Remove. Where a city charter provides for an officer known as city engineer of said city, and also provides that “said engineer shall be appointed by the mayor, by and with the consent of the board of city commissioners, and shall hold his office for a term of two years, unless sooner removed, as provided in this charter,” and said charter contains no provision for the removal of officers, held, that the fact that the charter fails to provide for the removal of city officers is by implication an inhibition upon the power of the mayor and board of -commissioners to remove the city engineer of such city from office.</p> <p>3. OFFICERS — “De Facto Officer.” An “officer de facto” is one' whose acts, though not those of a lawful officer, the law, upon principles of policy and justice, will hold valid, so far as they involve the interests of the public and third persons, where such duties and functions of the office are exercised by one who was in actual possession of it, under color of title.</p> <p>4. MUNICIPAL CORPORATIONS — Officers—“De Facto Officer”— Person Illegally Appointed. Where one person is holding an office by legal appointment, and claiming to be such officer de jure, the mere fact that another person may take possession of said office, and perform some of the duties and functions of said office, under a pretended appointment by an- officer or public board, or body acting against a plain provision of the statute, and without any color of right, power, or jurisdiction' to remove the de jure officer, or to appoint such pretending officer, such pretended appointee is not a de facto officer, for the, reason that, under such circumstances, there cannot lie two different officers, de jure and de facto, in possession of an office at the same time, where one incumbent only is provided by law.</p> <p>5. OFFICERS — De Jure Officer — Right to Salary — Payment to Usurper. The rule that, where the salary of an officer is paid to a de facto officer, this defeats the right of the de jure officer to recover the legal salary of such office, does not apply to a mere usurper of said office or one pretending to hold such office without any color of title thereto.</p> <p>6. PLEADING — Allegations not Denied Under Oath — Appointment and Authority of Officer — Admissions. In all actions allegations of appointment or authority of a public officer shall be taken as true unless the denial of the same' be verified by the contending party, his agent or attorney, and such allegations will be construed as stating that such officer is a duly and regularly authorized officer, with full power, right, and authority to perform the duties and functions of such office; and the failure to deny such allegations under oath will be ialceu as an admission of the title to such office as alleged, with full power and authority to peiform the duties and functions thereof.</p> <p>(Syllabus by Robberts, O.)</p>