Volume 57 — Oklahoma Reports

<p>1. PLEADING — Objections and Waiver — Agreed Statement. Where parties submit an issue ',.o the court upon an agreed state of facts, generally such action waives any error in the action of the court in its rulings on the pleadings.</p> <p>2. INDIANS — Dower—Nature of Rights — Statutory Provisions. Under .the laws of Arkansas, which were in force in the Indian Territory prior to statehood, a surviving widow is entitled to dower in the lands held by her husband for allotment at the time of his death; said lands subsequently being selected in allotment by an administrator.</p> <p>8. INDIANS — Lands—Wilis—Devise Prior to Allotment. A member of ifhe Cherokee tribe of Indians has no such interest prior to allotment ini the lands belonging to such tribe of Indians as is subject to be devised by will. A will made by such member whose death occurred prior to the selection of am allotment, purporting to devise .the real estate held for an allotment, vests no title to such real estate in the devisee.</p> <p>4. SAME — Dower—Waiver—Accepting Provisions UnderWill. After the death of the decedent the defendant, as surviving widow and as administratrix, selected the .lands in allotment in the name of the decedent and caused the will to be probated. She remained in possession of said land, claiming title under the will until the trial of this cause. Held, the will being ineffectual to vest any title in the real estate, the widow did not waive her right to, nor estop herself from, claiming, dower.</p> <p>5. DOWER. — Assignments—Jurisdiction of District Court. A district court of this state, possessing equity jursdict.ion, in a proper action when it has jurisdiction over parties and subject-matter, is authorized to assign dower when the facts justify such action.</p> <p>(!. INDIANS — Dower—Judgment—Scope of Relief. The trial court denied relief to plaintiff and adjudged the defendant, as the surviving widow of decedent, the right of occupancy of the premises during her life. Held error. Held, further, the judgment should be reversed, 'with directions to the trial court to assign dower.</p> <p>(Syllabus by Dinn, C.)</p>

<p> Error from District Court, Hughes County; John Caruthers, Judge. </p> <p>Action by Jennie Davis against H. G. Beard and Walter W. Waddell. . Judgment-for plaintiff, and defendant Beard brings error.</p>

<p> Error from Superior Court, Muskogee County; H. C. Thurman, Judge. </p> <p>Action by Louis Duncan against Connell Rogers, Treasurer, and others. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Ottawa County; Preston S. Davis, Judge. </p> <p>Suit by H. R. Gill against the Town of Afton and others. From a judgment for plaintiff, defendants appeal.</p>

<p> Error from,■ District Court, Muskogee County; R. D. de Graffenried, Judge. </p> <p>Action by Sarah Henley, nee Taylor, against Fred W. Davis and others. Judgment for defendants, and plaintiffs brings error.</p>

Error from District Court, Hughes County; John Caruthers, Judge. Petition by Florence A. Barber against A. J. Rogers, the Keet & Roundtree Dry Goods Company, and another. From the judgment, the defendant company brings error.

<p>1. BAIL — Judgment Forfeiting • Recognizance — Vacation—Grounds. It is a sufficient cause ifco vacate a judgment forfeiting a recognizance under section 7112, Comp. Laws 1909 (section 6110, Rev. Laws 1910). that the performance of the conditions of such recognizance was rendered impossible by an act of God, an act of the obligee, or an act of the law.</p> <p>2. COURTS — Habeas Corpus — {State and Federal Courts — Jurisdiction — Criminal Law — Bail. A party charged with a criminal offense under the state laws and admitted to bail, may. while out oil bail, be arrested by the federal authorities without violating the comity existing between the two jurisdictions, but the state court, if it so desires, may insist upon the jurisdiction previously obtained and procure the principal from the possession of ;the federal authorities for the purpose of trial. The principal and his sureties, however, do not enjoy this same privilege; they cannot elect that the principal be tried by the state courts and thereby oust the federal court of its jurisdiction.</p> <p>8. BAIL — Judgment of Forfeiture — Vacation—Grounds—Incarceration in Federal Jail. Where a party executed a recognizance in a state court and was subsequently arrested by the federal author- ■ ities and confined in the federal jail within the same state at the time his recognizance was forfeited in 'the state court, it 4s not a sufficient excuse for his absence that he was incarcerated in such federal jail; as he must further show that he was incarcerated through no fault of his own.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p>APPEAL AND ERROR — Record—Case-Made—Time for Serving. To authorize the making of an order extending the time for serving a case-made, under section 5246, Rev. Laws'1910, after the ¡time allowed by law, or a former order extending the time, has expired, notice must be given the opposite party of the application for such order, and a showing made to the court or judge that the failure to serve ¡the ease within the time previously allowed, and then expired, was because of “accident or misfortune which could hot reasonably have been avoided.”</p> <p>(Syllabus by Brewer, C.)</p>

<p>PLEADING — Vendor and Purchaser — Action on Purchase-Money Notes —Failure of Title — Offer to Reconvey — Demurrer to Evidence. (a) Where land has been sold and conveyed to a party with covenants of warranty and notes taken in payment for same, for the ■vendee to defend against an action for the collection of the notes on the ground of failure of title, the answer must contain an offer to reconvey, (to) Where the answer does not contain an offer 'to reconvey, the same is so defective, when challenged on that account for 'the first time by an objection ¡to the introduction of evidence, it is error not to sustain the objection.</p> <p>(Syllabus by Mathews, O.)</p>

Error from District Court, Haskell' County; W. H. Brown, Judge. In the matter of the estate of Cornelia Folsom, deceased. From a judgment dismissing an appeal from an order of the county court denying revocation of probate of a will, Saul J. Folsom brings error.

Error from District Court, Ellis County; G. A. Brown, Judge. Action by Anna Dean and others against the Fidelity Mutual Life Insurance Company of Philadelphia, Pa., a corporation. Judgment for plaintiffs, and defendant brings error.

<p>1. INSURANCE — Hail Insurance Policy — Conditions Precedent to Recovery. Section 3552, Rev. Laws 1910, provides that, whenever a policy holder sustains loss 'by hail, he shall have his claim for such amount as 'the company is liable for set’off against any note which the company may hold, provided, however, that whenever a loss occurs under any policy, the assured shall give notice within five days after the hail, as a condition precedent to establishing any claim or liability. Held, that where this statute was in force at the time the application for insurance was made, and the policy thereunder issued, said statute entered into and became a part, of the insurance contract as fully, and to the same extent, as though it had been written in the body of the contract ; and held, further, that where the insured sustained loss by hail, he cannot maintain an action therefor, unless he has complied with the terms of said statute in regard to giving the notice provided for therein, or otherwise shows that such notice was waived by the insurance company.</p> <p>2. INSURANCE — Waiver of Conditions — Proof—Act of Agent. Where a waiver of conditions in an insurance policy is relied upon by the insured, he must show that the company, with knowledge of .the facts that occasioned’ the waiver, dispensed with the observance of tbe condition, and .where tbe waiver is relied on as the act of an agent, the assured must prove, by a preponderance of the evidence, either that the agent had express authority from ithe insurer to make the waiver, or that the insurer subsequently, with knowledge of the facts, ratified the action of the agent in making such waiver.</p> <p>(Syllabus by Robberts, O.)</p>

<p> Error from. County Court, Woodward County; Clyde H. Wyland, Judge. </p> <p>Action by the Central Exchange Bank against O. D. Williams. Judgment for defendant, and .plaintiff - brings error.</p>

<p>USURY — Remedies—Recovery of Interest Paid. A petition filed for the purpose of recovering alleged usurious interest, under section 1005, Rev. Raws 1910, ¡by -the party contracting for the payment of the same, should allege that the interest had been paid; and. where this averment is lacking, it is error to overrule a. demurrer thereto.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from District Court, McCurtain County; Summers Hardy, Juctge. </p> <p>Action' by J. B. Adkins against A. J. Waldoek. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Texas County; W. C. Crow, Judge. Action by M. G. Wiley, administrator of the estate of Mary J. Wiley, deceased, against E. J. Albright and others, on a promissory note and to foreclose a mortgage. Judgment by default for plaintiff, and defendants bring error.

<p>1. PRINCIPAL AND SURETY — Subrogation—Payment by Surety— Effect to Cancel Note. A note was -signed -by a principal and three sureties. One of the sureties paid the note after maturity and had the same assigned to’ his wife, who instituted suit thereon against flap, pi-mcipal. and' the other two sureties. Held, as between the parities, the note was not canceled upon payment by one of the sureties, -and that .the action was properly instituted upon the note itself.</p> <p>2. SUBROGATION — Payment by Sureties — Effect to Extinguish Note — Intent—Presumption. Whether payment of the note by a surety operates as an extinguishment of the note or a mere purchase thereof is a question of intention. If the assignment is taken in the name of a third party, this is a strong indication that it was the intention to keep the note alive.</p> <p>(Syllabus by Matthews, C.)</p>

<p> Error from District Court, Major County; James B. Cullison, Judge. </p> <p>Action by A. W. Anderson against Alva W. Kelley and another. Judgment for defendants, and plaintiff brings, error.</p>

<p> Error from District Court, Muskogee County; R. P. de Graffenried, Judge. </p> <p>Action by Tams Bixby against R. R.' Cravens and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Presenting Questions in Trial Court — Necessity. Plaintiff, in Ms verified petition, alleged that he entered into a contract, which was the basis of the action, with the secretary of 'the School Land Commissioners. Defendants answered that the said secretary had no authority to make said contract. ' This answer was not verified. Upon the issues thus joined trial was. had and the court found that the evidence failed to show that the secretary was authorized to make the said contract. On appeal 'the plaintiff contends that the 'burden was upon the ' defendants to show ¡that the secretary was not authorized to make said contract. Held, that, as the plaintiff did not in the trial court challenge the sufficiency of the answer for the reason that it was not verified in any way, he waived that point and cannot urge it here.</p> <p>(Syllabus by Mathews, C.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by the Theodore Maxfield Company against H. B.' Lockett. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. </p> <p>Action by the Moneyweight Scale Company against the Hale-Halsell Grocery Company. Judgment for defendant, and plaintiif brings error.</p>

<p>1. JUSTICES OF THE PEACE — Garnishment—Effect. An order of a justice of the peace directing a garnishee to pay money into court simply gives to the creditor the same right to enforce the payment of the money from the garnishee 'that the debtor previously had. It merely assigns the claim from the debtor to the creditor.</p> <p>2. GARNISHMENT — Proceedings to Support — Action Against Garnishee. In an action by the plaintiff against the garnishee for a failure to comply with the order made by the justice directing the payment of money into court, the plaintiff is entitled to recover if he' shows a valid judgment in his favor against his debtor, a garnishee summons, an answer of the garnishee, an order of court directing the money to be paid into court, a refusal, and a liability to the debitor by the garnishee at the time of the service of garnishee summons.</p> <p>3. JUSTICES OF THE PEACE — Garnishment—Liabilities Subject-Negotiable Instrument. Where a garnishee answers and admits a liability, undenied, by a promissory note, and fails to disclose its negotiability, an order made by the justice directing ¡the money to be paid into court is not void, notwithstanding section 4836, Rev. Laws 1910, provides no judgment can be rendered upon a liability of a garnishee arising by reason of his having made a' negotiable note.</p> <p>4. GARNISHMENT — Proceedings to Enforce — Action Against Garnishee. The record examined, and it is held, that the trial court was in error when it directed a verdict in this case.</p> <p>(Syllabus by Hooker, 0.)</p>

<p> Error from Superior Court, Pittsburg County; W. C. Liedtke, Judge. </p> <p>Action by Jonas Johannessen against J. E. Cavanagh. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by Florence M. Brooks against the Chicago, Rock Island & Pacific Railway Company and others. Judgment for plaintiff against the defendant Railway Company, and it brings error.

<p> Error from. County .Court, Marshall County; J. I. Henskaiv, Judge. </p> <p>■ Action by S. G. Wood against P. W. Miller. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from Superior Court, Pottawatomie County; George C. Abernathy, Judge. </p> <p>Action in ejectment by G. L. Ryan against John Provens. Judgment for plaintiff, and defendant brings error:</p>

Error from District Court, Carter County; S. H. Russell, Judge. Action by J. S. Mullen and others against J. S. Reed and another. Judgment for plaintiffs, and defendants bring error.

<p>VENDOR AND PURCHASER — Remedies of Purchaser — Recovery of Price Paid — Pleading'. A petition, alleging a cause of action for money liad and received, seeking to recover the purchase price of real estate conveyed to plaintiff by defendants because of a total failure of the consideration by reason of the failure of title to said real estate, which fails to allege an offer to reconvey said real estate, is fatally defective and is vulnerable to. a general demurrer.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Stephens County; Frank M. Bailey, Judge. Action by L. V. Mullen and another against Anderson Gardner and- another. Judgment for defendants, and plaintiffs bring error.

<p>APPEAL AND ERROR — Briefs—Effect of Failure to File. Where defendant in error files no brief, and the brief of plantiff in error reasonably sustains his contention, the court will not examine the record to find some theory upon which to affirm the judgment, but same may be reversed and remanded.</p> <p>(Syllabus by Hooker, C.)</p>

<p>INDIANS — Enrollment—¡Conclusiveness—The enrollment records of the Dawes Commission are conclusive evidence as to the age of all allottees whose names appear thereon as to conveyances made after Act Congress May 27, 1908, chap. 199, 35 Stat. 312, became effective.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. VENDOR AND PURCHASER — Construction of Contract — Sales in Gross. Sales of real estate in gross are properly divided into four classes: First, sales strictly and essentially by tract, without reference in the negotiation or in the consideration to any estimated or designated quantity of acres; second, sales of the like kind, in which, though a supposed quantity by estimation is mentioned or referred to in the contract, the reference was made only for the purpose of description, and under such circumstances or in such manner as to show that the parties intended to risk the 'contingency of quantity, whatever it might he, or how much so ever it might exceed or fall short of that which was mentioned in the contract; third, sales in which it is evident from extraneous circumstances of locality, value, price, time, and 'the conduct and conversations of the parties that they did not contemplate or intend to risk more than the usual rates of excess or deficit in similar cases, or than such as might be reasonably calculated on as within the range of ordinary contingency; fourth, sales which, though technically deemed and denominated sales in gross, are, in fact, sales by the acre, and so understood by the parties. Contracts belonging to either of the two first-mentioned classes, whether executed or executory, should not be modified by the chancellor when there has been no fraud.</p> <p>2. SAME — Remedies of Purchaser — Nature and Form. A person induced by false and fraudulent representations to purchase or exchange for property has three remedies. He may; First, upon discovery of the fraud, rescind the contract absolutely, and sue in an action at law. and recover the consideration parted with upon the fraudulent contract, and in such case he must restore, or offer to restore, to the parties sued whatever he has received by virtue of the contract; or, second, he may bring an action in equity to rescind the contract, and in such case it is sufficient for plaintiff to‘-restore, or make offer in his petition to restore, everything of value which he has received; or, third, he may affirm the contract, retain that which he received, and bring an action* at law to recover the damage sustained by reason of his reliance upon the fraudulent representations.</p> <p>3. APPEAL AND ERROR — Presenting Question in Lower Court— Form of Action. -Where the imrties treat the action in the court below as one at law, on appeal tbe case will be treated as one at law by the Supreme Court.</p> <p>4. TRIAL — Tailing Case From Jury — Direction of Verdict. In an action at law, where there are controverted questions of fact necessary for a determination of the case, it is error to direct a verdict.</p> <p>5. EVIDENCE — Documentary Evidence — Authentication. Same as Comanche Merc. Co. v. McCall, 52 Okla. 782, 153 Pac. 675.</p> <p>(Syllabus by Burford, C.)</p>

Error from District Court, Caddo County; J. T. Johnson, Judge. Action by M. C. Reddington against the Oklahoma Fire Insurance Company on an insurance policy for loss by tornado. Judgment for plaintiff, and defendant brings error.

<p>1. NEGLIGENCE. — Actions—Evidence. The mere fact that an injury occurs carries with it no presumption of negligence. It is an affirmative fact for the injured party to establish that the defendant has been guilty of negligente.</p> <p>2. RAILROADS — (Operation—Injuries to Person Near Track — Evidence. The record examined, and held, that the evidence adduced at the trial reasonably tends to establish negligence on the part of the defendant, and that this negligence was the proximate cause of the injury complained of.</p> <p>3. TRIAL — Reception of Evidence — Discretion of Court. The question of admissibility of statements as part of the res gestae should, in a great measure, be left to the determination of the trial court.</p> <p>(Syllabus by Galbraith, C.)</p>

<p> Error from District Court, Seminole County; Tom D. McKeown, Judge. </p> <p>Action by Peggy Kelley against Sam Norton. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Oklahoma, County; W. R. Taylor, Judge. </p> <p>Action by Calvin D. Andrews against Fannie Dubois. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from County Court, Okmulgee County; Mark L. Bozart, Judge. </p> <p>Action by W. W. Campbell and others against Wright Thornburgh and others. Judgment for defendants, and plaintiffs bring error.</p> <p>A motion to dismiss this appeal was filed on the ground that after a demurrer to the petition was sustained the defendant took time to plead over. The record shows two orders. The first, made on the 14th day of May, 1914, recites:</p> <p>“This cause coming on to be heard on this 14th day of May, 1914, on a demurrer of the defendants to the petition of the plaintiff heretofore filed, and after hearing argument of counsel, both for and against said demurrer, and being fully advised in the premises, the court finds that the first, second, fifth, sixth and seventh grounds of the demurrer should be sustained, and that the third and fourth grounds of the demurrer should be overruled. It is, therefore, ordered, adjudged and decreed that the first, second, fifth, sixth and seventh grounds of the demurrer are hereby sustained, and the third and fourth grounds of the demurrer be and the same are hereby overruled, to which action of the court the plaintiff excepts. It is further ordered, adjudged, and decreed that the plaintiffs/be and they are hereby given twenty days in which to file an amended petition. Exceptions allowed.”</p> <p>On the 28th day of May, 1914, another order was entered as follows:</p> <p>“This cause coming on for hearing on this 28th day day of May, 1914, being a regular term day of the April, 1904, term of this court, and plaintiff appearing and refusing to plead further, and electing to stand on their petition heretofore filed, to which the demurrer was heretofore . sustained on the 14th day of May, 1914, it is ordered, considered, and adjudged that the petition be dismissed at plaintiff’s costs, to which action of the court the plaintiff excepts, etc.”</p> <p>In the reply to the motion to dismiss it is stated that counsel for the plaintiffs had no notice of the filing of the first order and asked no further time to plead, but this statement is denied by the defendants in error. There is nothing in the record to show that the plaintiffs were not present. In fact, the first journal entry recites that the demurrer was argued on that date, and that exceptions were saved to the ruling of the court on that date, and then follows the order allowing the plaintiffs time to' file an amended petition. The question now presented is on the motion to dismiss.</p>

<p>1. INSURANCE — Liability of Insurer — Extent. Under what we call the ordinary or commercial loss payable clause, attached to policies of insurance, in substance, that “loss, if any, payable to -, mortgagee, as his interest may appear at 'the time of loss,” where no other stipulations appear, defining the interest of the mortgagee, there is a contract created-between the insurer and the mortgagee, but it is merely collateral to the principal undertaking to pay the mortgagor; the mortgagee is merely an appointee of the fund, with rights dependent upon, and no greater than, those of the insured. If the policy becomes void, so it cannot be collected by the insured, the rights of the mortgagee likewise fail.</p> <p>3. SAME. The clause, attached to an insurance policy, usually called the “Union” or “Standard” mortgage clause, providing, in substance: “Loss, if any, payable to-1, mortgagee, as hereinafter provided: it being hereby understood and agreed that this insurance as 'to the interest, of the mortgagee only herein, shall not be invalidated by any act or neglect of the mortgagor or owner of the property insured. * * provided, that in case the mortgagor or owner neglects or refuses to pay any premium, * * * then, on demand, the mortgagee shall pay same * * ” — creates an independent contract of insurance for the separate protection and benefit of the mortgagee. The fact that it is ingrafted on the contract, of insurance contained in the policy issued to the owner and mortgagor does not affect its independent nature, except that reference will be had to the main body of the policy, to make the clause certain and effective. Under such clause, the mortgagee may maintain a suit, in his own name to recover for a loss covered by the policy, and such cause of action cannot be defeated by “any act or neglect of the owner or mortgagor of the property insured.”</p> <p>3. INSURANCE — Contracts—Requisites. Where pursuant to agreement between the agent of an insurance 'company, who has power to countersign and issue policies, and a mortgagee of the property insured, 'a “Union” or “Standard” mortgage clause is executed and signed by the agent and recorded in the record of the particular policy in the policy registry book of the company, such clause is effective as between tlie company and tbe mortgagee, al-thougli it is not physically attached to the policy delivered to the owner or mortgagor.</p> <p>(Syllabus by Brewer, C.)</p>

<p> Error from County Court, Alfalfa County; F. M. Gustin, Judge. </p> <p>Action by the Gould Balance Valve Company against William B. Updegrove. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by the Cora Exploitation Company, a corporation, against Beulah M. Zinn and others, in which James Haney and others of the defendants file cross-petitions. From the judgment and an order denying motion for new trial, defendant named and Alfred B. Roberts bring error.

<p> Error from District Court, Grant County; W. M. Bowles, Judge. </p> <p>Action by E. F. Quigley against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.</p>

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Actions by Hays & Son against the Springfield Fire & Marine Insurance Company and others. Judgment for plaintiffs, and défendants bring error.</p>

<p> Error from District Court, Osage County; R. H. Hudson, Judge. </p> <p>Action by M. E. McCracken, guardian, etc., against the Travelers’ Insurance Company of Hartford, Conn. •Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Berner County; R. H. Loofbourrow, Judge. Appeal by Fred Taintor to the district court from the action of the Commissioners of the Land Office in awarding grazing leases to J. R. Sutherland and Alta Barby. Judgment in part for Taintor, and Sutherland and Barby bring error.

Error from. County Court, Jackson County J. M. Williams, Judge. Action by J. M. Daniels against James M. Nye and others. Judgment for plaintiff, and Y. V. Moorehead and another, defendants, bring error.

Error from, Superior Court, Muskogee County; Farrar L. McCain, Judge: Action by Wash McQueen against P. E. Heckman to have certain instruments declared mortgages. Judgment lor plaintiff. On his death Mamie A. McQueen and others, his heirs, were substituted as plaintiffs. Defendant brings error.

Error from County Court, Le Flore County; P. C. Bolger, Judge. ■ Action by M. C. Lowrey • against National Bank of Poteau, to recover the sum of $117.75, interest, and costs. Trial was had before a justice of the peace, and the defendant appealed to the county court. A jury was waived, and the cause submitted to the court on a written agreed statement of facts. Judgment for plaintiff, and defendant brings error.

<p> Error from District Court, Kiowa County; Jas. R. Tolbert, Judge. </p> <p>Action by T. B. West against Tillie Tilley. Judgment, for defendant, and plaintiff brings error.</p>

<p>1. INSURANCE — Fraternal Benefit Insurance — Initiation of Applicant — Necessity. When deceased has been accepted for membership by the local camp, and his application for insurance has been accepted by the head camp,, and benefit certificate issued, and same has been delivered to the member and his dues collected thereon, the lodge is estopped to deny that he is a member, and will not be heard to object that he has not been initiated.</p> <p>2. SAM®. — Contract—“Good Health.” The phrase, “in good health,” is a comparative term, and the fact that deceased was suffering with a slight cold at the time the benefit certificate was delivered to him, which afterwards developed into pneumonia, and caused his death, will not defeat a recovery upon the. benefit certificate under the .stipulation that the insured be “in good health” when the policy is delivered to him.</p> <p>(Syllabus by Watts, C.)</p> <p>ON REHEARING</p> <p>3. SAME — Extent of Liability. A beneficiary certificate issued by the order of the AVoodmen of the World, contained a 'clause that the order would pay the sum"of $100 for the erection of a monument to the memory of the member to whom the certificate was issued. • Held, in default of the erection of said monument, the beneficiary named in the policy or certificate was not entitled ito a personal judgment for the said $100.</p> <p>(Syllabus by Mathews, C.)</p>

<p>1. INSURANCE — Actions — Issue and Proof — Waiver—Estoppel. Where a cause of action is instituted upon a contract of insurance and it is claimed in tlie petition that proof of. loss was furnished to the company as provided by the contract, evidence is improperly received, where it is objected to, seeking to establish a waiver or estoppel.</p> <p>2. SAME. A waiver should be pleaded by the one relying thereon.</p> <p>(Syllabus by Hooker, C.)</p>

<p> Error from District Court, Texas County; W. C. Crow, Judge. </p> <p>Action by the Midland Savings & Loan Company against J. C. Sheil and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Okfuskee County; John Caruthers, Judge. Action by Clarence William Doyle, a minor, by A. D. Doyle, his next friend, against R. G. Davenport and others. Judgment for plaintiff, and defendants bring error. •

Error from District Court, Jefferson County; Frank M. Bailey, Judge. Action by E. J. Kelly against M. J. Moore and others. Judgment for plaintiff, and defendants bring error. The parties hereto will be designated as in the trial court.

<p> Error from County Court, Alfalfa County; F. M. Gustin, Judge. </p> <p>Action by L. A. Salter against James F. Noel. Judgment for plaintiff, and defendant brings error. •</p>

<p>JUDGMENT — Conclusiveness—Matters Concluded. Where, in an action . for the possession of trespassing animals distrained and being held until damage occasioned by them is paid, defendant answers, setting forth such trespass, distraint, and damages, and seeks recovery therefor against plaintiff, and it is pleaded and proved that pending such action, in a separate suit, defendant had recovered judgment against plaintiff for .the same trespass and damage, held, that ithe former judgment in the independent action is conclusive ' between the parties pf the fact and amount of such damage, and a bar to further recovery.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. VENDOR AND PURCHASER — Remedies of Vendor — Action for Price — Conditions Precedent. Where it appears from a contract for the sale of land that it was the intention of the parties that the payment, of the purchase price should precede the delivery of a deed, or that time for payment was fixed, and no time for conveyance, the covenant to pay and the covenant to convey are independent, and an offer to convey or fender before suit is not required.</p> <p>2. SAMEi — ¡Direction of Verdict. Evidence examined, and held insufficient ito take case to jury.</p> <p>(Syllabus by Day, C.)</p>

<p>CORPORATIONS — Powers and Liabilities — Effect of Sale. A purchasing corporation does not become liable for the prior debts or obligations of the vendor corporation, in the absence of litlier express contract or statutory provisions therefor. The defendant bank herein assumed none of the liabilities of the Oklahoma City National Bank except deposit liabilities, and no other liability oí the constituent corporation- has been imposed, upon it by law.</p> <p>2. BANKS AND BANKING — Sale of Assets — Actions—Evidence. No part of the claim of plaintiff sued on in this action was deposit liability of the Oklahoma City National Bank.</p> <p>?. CORPORATIONS — Powers and Liabilities — Effect of Sale. The liability of the purchasing corporation is very similar to the liability of an individual who purchases the assets of a debtor, and it does not, by reason of the purchase merely, become liable for the debts of -the selling corporation.</p> <p>4. . SAME. It is a general rule that, in order to render the purchasing company personally liable for the debts of the selling corporation. it must appear that: (a) There be an agreement to assume such debts; (b) the circumstances surrounding 'the. transaction must warrant a finding ithat there was a consolidation, of the two corporations; (c) that the purchasing corporation was a mere continuation of the selling corporation; or (d) that the transaction was fraudulent, in fact. No fraud was pleaded or proven in this cause.</p> <p>(Syllabus by Davis. O.)</p>

<p> Error from District Court, Woodward County; James W. Steen, Judge. </p> <p>Action 'by Salmon C. Aldred against George M. Wer-line. Judgment for plaintiff, and defendant brings error.</p>

<p>1. INSURANCE — Action Against Domestic Insurance Company — Venue. By virtue of section 4674. Rev. Raws 1910, an action against a domestic insurance 'company may be brought in the county whore the cause of action or some part thereof arose.</p> <p>2. SAME. This provision of the code applies not only to actions upon insurance contracts, but all character of actions.</p> <p>3. VENUE — Action on Supersedeas Bond — Place of Accrual of Cause. Where an insurance company executes a supersedeas bond in a cause tried in Muskogee county in the district court, and such bond is approved by the clerk of the court in itliat county and duly tiled in said court, and liability accrues upon said bon'd, the same’ is held to arise in Muskogee county, and action on the bond may be maintained in Muskogee county, although the company and its sureties reside and are summoned in other counties.</p> <p>(Syllabus by Hooker, O.)</p> <p>APPEAL AND ERROR — Liabilities on Bonds — .Entry of Judgment. Where supersedeas bond is filed, and on appeal to this court the judgment of the lower court is affirmed, on motion of defendant in error, under chapter 249, Sess. Laws 1915, judgment will be entered in this court against 'the sureties on the appeal bond.</p> <p>(Syllabus by Rittenhouse, 0.)</p>

<p>1. APPEAL AND ERROR — Record—Case-Made—Time for Service. The entry of the figures “60 — 10—5” in an order of the court overruling a motion for a new trial are not construed as allowing time by the court to the plaintiff in error ito make and serve a ease-made.</p> <p>2. SAME. A purported order of the trial judge made at chambers extending the time to make and serve a case-made is without force, where the case-made fails to show affirmatively that such order was entered in the journal of the court pursuant to section 5317, or section 5324, Rev. Laws 1910.</p> <p>(Syllabus by Mathews, C.)</p>

Error from Superior Court, Tulsa County; M. A. BrecJcenridge, Judge. Action by Elizabeth Goodman, administratrix of the estate of Charles D. Goodman, against L. W. Lindsey and another. Judgment for plaintiff, and defendants bring error.

<p> Error from County Court, Jefferson County; J. M. Adams, Judge. </p> <p>Action by the First National Bank of Addington against Mrs. J. M. Shell. Judgment for defendant, and plaintiff brings error.</p>

Error from. District Court, Carter County; Stühvell H. Russell, Judge. Action by the First State Bank of Hewett, Oklahoma, against the Globe Surety Company on an employee’s bond. Judgment for plaintiff, and defendant appeals.

<p> Error from District Court, Garvin County; R. McMillan, Judge. </p> <p>Action by the First State Bank of Pauls Valley, Oklahoma, against J. B. Garvin and others. Judgment for plaintiff, and defendant W. H. Paul brings, error.</p>

<p>1. JUSTICES; OF THE PEACE — Jurisdiction—Title to Realty. Under the Constitution and statutes of Oklahoma a justice of the peace court has no jurisdiction to try title to real estate.</p> <p>2. SAME — Appeal. In an action of unlawful detainer filed in a justice court, where it becomes necessary to try the title to real estate in order to decide the right of possession, the justice loses jurisdiction of said action, and neither the county court nor this court on appeal acquires jurisdiction to try the title to the property iuwolved.</p> <p>(Syllabus by Hooker, C.)</p>

<p> Error from District Court, Washington County; R. H. Hudson, Judge. </p> <p>Action by the Great Western Hay & Grain Company against C. B. Brown and another. Judgment for plaintiff, and defendants bring error.</p>

<p> Error from District Court, Wagoner County; R. C. Alien, Judge. </p> <p>Action by Gracie Jones against Lewis Jones. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Okfuskee County; ( John Caruthers, Judge. Action by Bettie Durant and another against Fred Effenberger and others. Judgment for plaintiffs, and defendants Fred Effenberger and another bring error.

Error from District Court, Okmulgee County; Wade S. Stanfield, Judge. Action by John Freeman against Edward Oates and others. Judgment for plaintiff, and defendants bring error. This was an action to quiet title to the northwest quarter of section 7, township 13 north, range 15 east. On May 4, 1899, this land was allotted to Louis Freeman, a three-quarter blood Creek Indian, and certificates of allotment were duly issued to him.

Error from District Court, Pontotoc County; . Tom D. McKeown, Judge. Action by John Thomas Ro'bnett and another against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.

<p> Error from District Courtt Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by the Moline Elevator Company against the Loewen Real Estate & Investment Company, and others. From a judgment for defendant M. E. Galvin, administrator of the estate of John W. Galvin, defendant M. J. Frantz brings error.</p>

<p> Error from District Court Creek County; Wade S. Stanfield, Judge. </p> <p>Action by the State against Josiah G. Davis and others. Judgment for defendants, and plaintiff brings error.</p>

<p>APPEAL AND ERROR — Assignment of Error — Sufficiency. Where the assignment of error is so indefinite and. general ’ as not to point out the errors complained of, and does not direct the court’s attention to any facts showing cause for reversal, the Supreme Court will not consider the same.</p> <p>(Syllabus by Rittenhouse, C.)</p>

<p> Error from Superior Court, Custer County; J. W. Lawter, Judge. </p> <p>Action by'the Boring-Kim Produce’ Company against the Chicago, Rock Island & Pacific Railway Company. Judgmént for plaintiff, and defendant brings error.</p>

<p>APPEAL AND ERROR — Briefs—Effect of Failure to File — Reversal. Where plaintiff in error has completed his record and filed it in this court, and has served and filed a brief, in compliance with the rules of this court, and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which the judgment may be sustained; and, where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with -the prayer of the plaintiff in error or the rights of the, parties.</p> <p>(Syllabus by Hooker, O.)</p>

Error from District Court, Pawnee County; Conn Linn, Judge. Prohibition by Isom Readdy against A. B. Mallory and others. Writ of prohibition quashed, petition dismissed, and petitioner brings error.

<p>MASTER AND SERVANT — Mines and Minerals — Mining Liens — Statutory Provision. One employed by a mining company as a watchman and to collect accounts due the company is not entitled to a lien on the property of the company to secure the payment for his services under section 3852 or section 4007 of the Revised Laws of 1910.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Seminole County; Tom D. McKeown, 'Judge. Action by Charley, a minor, by his legal guardian, John Cordell, against Sam Norton and another. Judgment for plaintiff, and defendants bring error.

<p> Error from District Court, McIntosh County; Preslie B. Cole, Judge. </p> <p>Action by Willie Hope against W. T. Foley and others. Judgment for defendant T. R. H. Smith, and plaintiff brings error.</p>

<p>1. USURY — Rate of Interest — Recovery—Statute. Section 1004, Rev. Laws 1910, provides that by contract parties may agree upon, any rate of interest uot to exceed 10 per cent, per annum; therefore, where by contract the borrower agrees to pay and the lender agrees to take a sum in excess of 10 per cent, per an-num, and whore such excessive amount has been paid, the contract is usurious as defined by section 1005, Rev. Laws 1910, and the party paying such usurious interest may recover in a proper action twice the amount of the entire interest so paid, as usury, instead of twice the amount of the interest paid over and above the rate allowed by law.</p> <p>2. SAME — Request for Return of Interest — Amount. When the contract is usurious as above set forth, and the borrower makes a written demand requesting the’return of the whole interest so paid, instead of twice the interest paid over and above -the rate allowed by law, such borrower is within his rights.</p> <p>(Syllabus by Watts. 0.)</p>

<p>Error from Superior Court, Grady County; Will Linn, Judge.</p> <p>Action by Z. T. Bailey against J. C. King and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1. INFANTS — Lease of Realty — Validity. 'A lease of real estate, belonging to a minor, made by the father of such minor, who was not the administrator, executor, guardian, or curator of the minor, and which was not approved by the county court, or judge, having jurisdiction of the estate, is void.</p> <p>2. INDIANS — Inherited Allotment — Lease by Guardian — Validity. A lease, made by the guardian or curator of a full-blood Choctaw minor Indian, on the 12th day of April, 1906. of an inherited Indian allotment, belonging to such minor, and not approved by the county court, or judge, having jurisdiction of the estate of said minor, is void, as in violation of section 1 of the Indian Appropriation Act of 1905 (Act of Congress, March 3, 1905, c. 1479, 33 Stat. 1060; Fed. Stat. Ann. vol. 10, p. 142). which-provides -that no lease by any administrator, executor, guardian, or curator (of certain minor Indians) shall be valid or enforceable without the approval of the court having jurisdiction of the proceedings.</p> <p>3. INDIANS — Lands — Conveyances — Validity. Littie Hickman, a full-blood Choctaw Indian, died in 1903, intestate, before allotment, leaving one child, the only heir, plaintiff herein, also a full-blood Choctaw. The government census card shows that she was seven years old on the 20th day of April, 1S99, The administra- ’ tor. who was also a full-blood Choctaw, at the instance of defendant Fox, filed on an allotment for the deceased, on the 21st day of December, 1904, and the plaintiff herein became the sole owner thereof, by inheritance. On the same day the allotment " was filed on, the administrator made a five-year lease of the land to Fox, and at the same time a contract of sale was made whereby Fox was to buy the land for $1.050. Oil -the 12th day of April, 1906, when the plaintiff was under 16 years of age. Fox obtained a deed to the land from her, for the stated consideration of $1,550. After that, Fox had the administrator appointed curator of the estate of plaintiff, and on the 17th clay of November, 1906, took a new lease from the curator. On the 20th day of April, 1910. the day plaintiff arrived at her majority, by the census card, although the evidence clearly shows she was not that old, Fox took another deed from her, paying her at. that time $500, and taking a receipt for $1,672.39, which included the money he claimed to have previously paid on the leases; but the amount was denied by plaintiff’s father, who was the administrator and curator, above referred to. At that time the laud was worth $2,500 to $4,000. None of the foregoing leases,' contracts, or deeds were approved by the county court, or judge, having jurisdiction of the estate. Immediately after receiving the last deed from plaintiff, Fox conveyed the land to defendant Oarlock, by quitclaim deed, and on the 7th day of Juno, 1910, Oarlock obtained another deed from plaintiff without paying her any further or other consideration, and procured'the last deed to be approved by the county court. Held that, although executed at different times, all the leases, contracts and deeds, made with and to defendant Fox, were one and the same transaction, and for the same consideration, and were fraudulent and void, as violative of the several acts of Congress relative thereto. And held, further, that the conveyances to defendant Fox being absolutely void, his deed to defendant Oarlock was also void and conveyed no title tq the land; and, held, further, that the plaintiff having arrived at her majority, as evidenced by the government census card, on the 10th day of April, 1910, the action of the county court in attempting to approve the deed from plaintiff to defendant Oarlock, made on the 7th day of June, 1910, without consideration, was without jurisdiction and void.</p> <p>(Syllabus by Robberts, C.)</p>

<p>1. SHERIFFS AND CONSTABLES — Liability—Misapplication of Funds. A constable and his sureties are liable for the misapplication of funds derived from a check seized under an order of attachment, where -the constable in levying such attachment serves a copy thereof and takes possession of the property, though the constable fails to properly complete the levy and return as required by statute.</p> <p>2. APPEAL AND ERROR — Presenting Question in Trial Court — Requests for Instructions. Error assigned upon instructions offered and refused upon the trial will be considered by this court, although the statutory indorsements upon such instructions were not signed by the trial judge, where it clearly appears from the record that such instructions were offered at the proper time, were refused, and exceptions to the refusal thereof duly taken.</p> <p>3. TRIAL — Instructions—Applicability to Case. Instructions are properly refused which, though correct as abstract statements of law, are .not applicable' to the facts of the case as pleaded.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. EVIDENCE — Res Gestae — Statements. In an action for personal injuries, resulting in the death of a servant, from falling down an elevator shaft of the master in the nighttime, testimony of eye witnesses to the accident that just as he was about to step off he stated to deceased, “Be sure it is there,” and deceased replied, “Yes; It is here,” is competent as a part of the res gestae indicating the impression on the mind of the deceased at the moment of stepping off that the elevator was there.</p> <p>2. EVIDENCE — Opinion Evidence — (Competency of Expert. The testimony of a skilled electrician as to the diffusion of light from lamps similar to those shown to have been used- in lighting the vicinity of an elevator shaft where the servant' fell and was killed, and as to the shadow .or other effects produced -thereby, due to the kind, condition, and location, is competent, on the question of proper or sufficient lighting of the place where the injury occurred.</p> <p>3. MASTER AND SERVANT — Injuries to Servant — -Fellow Servants —Concurring Negligence. The master is liable for injuries due ’ to the concurring negligence of himself and a fellow servant in cases where the injury would probably not have occurred but for the negligence of the master.'</p> <p>4. NEGUGENCE — “Proximate Cause.” Strictly defined, an act is the proximate cause of an event when in the natural order of things, and under the particular circumstances surrounding it, such an act would naturally produce that event.</p> <p>5. MASTER AND SERVANT — Injuries to Servant — Actions—Safe Place to Work — Question for Jury. Where there is an apparent choice of routes between two points, and no rule or recognition requiring the longer route to be used, instead of the shorter, which leads across an elevator, usually left at night at a point where' it might be, and frequently is, used to cross an elevator shaft, as a means of access to a point where-the servant has duties to perform, and where it appears that others use it similarly, and that it had been so used for several months, the question as to whether notice of such use will he implied on the part of the master, and consent thereto likewise implied, is for the jury, even though it must follow that the master would owe the duty of making such passage and use reasonably safe by adequate lighting.</p> <p>6. SAME — Appliances and Place to Work — Duty of Master. It is the undelegable duty of the master to exercise ordinary care 'to provide the servant a reasonably safe place to work, reasonably safe tools and materials with which to work, and reasonably safe and competent fellow servants with whom to work, and a failure in one or more of these duties will subject the master to liability "for all damages proximately resulting therefrom, through injuries ■to the servant, even though the negligence of the fellow servant should contribute therewith to the injury, if the injury would probably not have occurred but for the negligence of the master in the performance of his duty.</p> <p>7. SAME — Place to Work — Lighting, Where a servant is required to work at night in a place or required to pass in the nighttime from one point in the premises where employed to another, it is the duty of the master to sufficiently light the locality of his work and the course of his passage to enable him to discover and avoid danger due to conditions that may be variable at different times.</p> <p>8. NEGLIGENCE — Actions—Question of Law or Fact. What is or what is not negligence is ordinarily a question for the jury, and not for the court. Where the standard of duty is not fixed, but variable, and shifts with the circumstances of the case, it is incapable of being determined as a matter of law, and, where there is sufficient evidence, it must be submitted to the jury to determine . whether the duty of the master has been complied with. Oil the other hand, when the standard and measure of duty is defined by law, and is the same under ail circumstances, its omission is negligence, and may be so declared liy the court. It is only in eases where the facts are such that all reasonable men must draw the same conclusions that (he question of negligence or the want of negligence becomes one of law for the court, and then only when no recovery can be had upon any view which can properly he taken of the facts which the evidence tends to establish.</p> <p>'9.- SAME. Negligence is so much a mixed question of law and fact —principally fact — that courts are seldom justified in saying that all reasonable men will agree with them on the question of whether a given state of facts constitutes the exercise of ordinary care.</p> <p>(Syllabus by Robberts, O.)</p>

<p> Error from District Court, Kingfisher County; Jamies B. Cullison, Judge. </p> <p>Action by the Farmers’ State Bank of Greentop, Mo., against T. T. Ratliff and others. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Action by Jacob A. Bearman against Josiah N. Ship-pey and others for equitable contribution. Judgment for plaintiff, and defendants bring error.

<p>1. APPEAL AND ERROR — Review—Questions of Fact — Finding by Court. When a, case is tried by the court the findings upon disputed questions of fact will be given the same weight and effect as a verdict of a jury, and where the same are reasonably ' supported by the evidence, they will not be disturbed on appeal,</p> <p>2. CONTRACTS — Construction—Practical Construction by Parties. Where a contract or any clause thereof is uncertain or indefinite and the parties 'thereto by their subsequent conduct or acts construe it alike and within the purview of constructions permissible by the language used, the courts will ordinarily follow such construction as the parties themselves make as the correct one.</p> <p>3. SALES — Remedies of Purchaser — Breach of Contract — Evidence. The record in this case supports the judgment of the lower court, _and this cause -is affirmed.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. CORPORATIONS — Foreign Corporations — Powers. A foreign corporation cannot exercise in this state.any greater or different rights, powers, and privileges than are conferred on similar domestic corporations.'</p> <p>2. BUILDING AND LOAN ASSOCIATIONS — Foreign Companies— Authority. A foreign building and loan association, under article 9, section 44. Constitution, must comply with the same requirements for fixing premiums upon loans made by it as a domestic building and loan.association.</p> <p>3. SAME — Loans—Effect. A building and loan association lending money without complying with the laws regulating loans made by such associations, is not protected in such loan as a building and loan association, but the transaction becomes a simple loan of money.</p> <p>4. SAME — Application of Payments. Where a foreign ■building and loan association lends money without requiring bids for the pref-"i-puee in obtaining the loan, as provided in section 1490. Comí Laws 1909 (section 1297, Rev. Laws. 1910), it has no right to charge premiums: and premiums, dues upon stock, and fines paid under a loan agreement so made will be. applied to the satisfac-tion of the loan.</p> <p>5. SAME — Loans—Interest. Where a loan made by a building and loan association is held not 'to be usurious, but loses the protection .of a building and loan contract because of failure to comply with the law governing the letting of loans as to premi- ‘ urns, and therefore becomes a simple loan, the association is entitled to interest at the contract rate, the same being within the legal contract rate of interest.</p> <p>(Syllabus by Rummona, C.)</p>

<p> Error from District Court, Pontotoc County; Tom D. McKeown, Judge. </p> <p>Action by the Midland Savings & Loan Company against Nathaniel A. McCurry and others. Judgment for plaintiff for an amount less than prayed for, and he brings •error.</p>

Error from County Court, Okmulgee County; Mark L. Bozarth, Judge. Action by James S. Moore and another against Lucy Childs to recover a real estate commission. Judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Harper County; W. C. Crow, Judge. </p> <p>Action by Frank S. Rogers against Godlieb B. Yauk. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court,. Bryan County; A. H. Ferguson, Judge. </p> <p>Action by Lula Dobyns against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error. On rehearing.</p>

<p> Error from. District Court, Nowata County; W. J. Campbell, Judge. </p> <p>Action by Marion Dawson against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Delaware County; John H. Pitchford, Judge. </p> <p>Action by H. S. Samples against J. W. Oaks. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pontotoc County; Tom D. McKeown, Judge. Action by the Leeper Bros. Lumber Company against F. O. Harriss and Mamie Harriss, his wife. Judgment for plaintiff, and defendant Mamie Harriss brings error.

<p>1. APPEARANCE) — What Constitutes — Motion to Vacate Judgment. Where the defendants are served by publication in an action to quiet title and a decree is entered according to the prayer of the petition, an appearance by motion to vacate and set aside the decree, based upon both jurisdictional and nonjurisdictional grounds, will be deemed and held a general appearance, and any * defects in the service are waived, and the decree entered thereon validated.</p> <p>2. JUDGMENT — Default Judgment — Sufficiency of Pleading. Where the court has jurisdiction of the person and subject-matter, a decree entered upon default is not void if the petition contain sufficient allegations to challenge a judicial examination.</p> <p>3. SAME! — Vacation—Time for Proceeding, Under section 4728, Rev. Laws 1910, the motion to vacate the decree and the notice served upon the adverse parties should be done and performed within three years after ithe date of such decree in order to.comply with the requirements of such section.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p> Error from District Court, Custer County; James R. Tolbert, Judge. </p> <p>Action by Daniel Gray and others against Spencer Gray and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Custer County; James R. Tolbert, Judge. Action by Willis Graham and others against Nancy Emma Graham and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Carter County; Stilwell H. Russell, Judge. Action between D. F. Gilliam and others and the Guaranty State Bank and others. From the judgment, Gilliam and others bring error.

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by Mitchell Harjo, by C. A. Wallace, guardian, against the Eastern Oil Company. From the judgment, the Oil .Company brings error.</p>

Error from County Court, Creek County; Warren H. Brown, Judge. Action by Cora B. McKee, executrix of the estate of James G. Unger, against D. L. Grimm and others. Judgment for defendants, and plaintiff brings error.

<p> Error from Superior Court, Pottawatomie County; George C.. Abernathy, Judge. </p> <p>Action by E. A. Schands aga'nst the Chicago, Rock Island &' Pacific Railway Company for personal injuries. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Carter County; Stillwell H. Russell, Judge. Action by Tennie Mobley and another against the Home Insurance Company of New York on a fire., insurance policy. Judgment for plaintiffs and defendant brings error.

<p> Error from County Court, Caddo County; C. Ross Hume, Judge. </p> <p>Action by Mintora S. Brown and others against Isaac Williams and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>BILLS AND NOTES — Indorsement—Nonnegotiable Note — Rights of Purchaser. A subsequent holder and owner of a nonnegotiable promissory note is not, liable to the maker thereof for damages sustained as the result of an independent and separate contract between the original payee and maker of such note, where such liability had in no way become attached to the note while the same was yet in the hands of the original payee.</p> <p>(Syllabus by Rittenhouse, O.)</p>

<p>APPEAL AND ERROR — Assignments of Error — Sufficiency. Where plaintiff in error fails to assign as error, in his petition filed in this court, the overruling of a motion for-a new trial, no question which seeks to have reviewed errors alleged to have occurred during the progress of the trial in the court below is properly-presented to this court, and such alleged errors cannot therefore be considered.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Kiowa County; James R. Tolbert, Judge, Action by W. P. Lewis and another, partners doing business under the firm name of W. P. Lewis & Son, against W. W. Blair. Judgment for plaintiffs, and defendant brings error.

<p>Original action by the Board of County Commissioners of Cleveland County against Jim Stogner, Court Clerk of Cleveland County, for writ of mandamus.</p>

<p> Error from District Court, Alfalfa County; James W. Steen, Judge. </p> <p>Action by F. A. Morton against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. TOWNSHIPS — Contracts—Execution, One member of a township board cannot bind such township to pay for the construction of a highway without first having been authorized to perform such work by a majority of said board while in session.</p> <p>2. SAM® — Claims—Statutory Authority. One who demands payment of a claim against a township for the construction of a highway must show some statfite authorizing it, or that it arises from a lawful contract; it is not sufficient to show that the labor performed, for which payment is demanded, was beneficial.</p> <p>(Syllabus by lilt-teahouse, 0.)</p>

<p>1. APPEAL AND ERROR — Brief—Specification of Error — Instruction. Where plaintiff in error complains of the court’s instructions . but does not set out in his brief the portions thereof complained of, nor point out wherein the defect lies, he fails to comply with rule 25 138 Okla. x, 137 Pac. xil of this court, and such instructions will not be considered, but assumed correct.</p> <p>2. APPEAL AND ERROR — Review—Questions of Fact. Where there is a conflict in the evidence, and the issues determined by a jury under proper instructions, and approved by the trial court, this court will not disturb the verdict on the weight of the evidence.</p> <p>.3. ATTACHMENT — Proceedings — Cross-Action. Prior to section 4855, Rev. Laws 3910, becoming effective, May 16, 1913, a cross-action by defendant for wrongful attachment could not be maintained in the same proceeding.</p> <p>(Syllabus by Day, 0.)</p>

<p> Error from County Court, Jackson County; J. M. Williams, Judge. </p> <p>Action by J. H. Milliken and another against E. C. Thorne. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. LIMITATION OF ACTIONS — Computation of Period — Absence from State. Where a note was made in Oklahoma by a resident of Kansas and a mortgage on real estate given to secure it, the maker returning to his homo in Kansas, and 18 years thereafter the holder of the note and mortgage seeks to foreclose the mortgage, and offers evidence to toll the statute to the effect that the maker had resided in Kansas continuously since making the note,' but ’does not show that' said maker had at all times been absent from the State of Oklahoma since the note became due, held, that this evidence is not sufficient to toll the statute; for the reason that the statute clearly makes the personal absence of the debtor, and not the place of his residence, the test.</p> <p>2. LIMITATION OF ACTIONS — Bar of Debt as-Affecting. A mortgage given to secure a note must stand or fall with the note. If there is no debt that can be legally collected, the mortgage cannot be enforced.</p> <p>(Syllabus by Brett, C.)</p>

<p> Error from County Court, Woodward County; Clyde H. Wyand, Judge. </p> <p>Action by Frank Fithen and another against George Ruark. From the judgment, Ruark brings error.</p>

<p>1. COUNTIES — Claims—Presentation—Estoppel. , Where a claim against a county is presented to its board of county commissioners, and is by such board allowed in part and a warrant drawn for the sum allowed, and the warrant thus issued is accepted, the party accepting such warrant is thereby estopped from a recovery for that part of the claim which was disallowed by the board.</p> <p>2. COUNTIES — County Board — Proceedings. Article 9, e. 16, Rev. Laws 1910, which provides for a board of county commissioners, also makes provision for the time and place of the meeting of such board, how they shall transact business, and the record they shall keep of all transactions had on behalf of the county. Under such law the only way by which the county could be bound upon a contract was by action taken by the board while it was in session. And the evidence of what was done is the records kept by the board. Under this law a board of county commissioners ~ could only act to bind the county while they were sitting as a board.</p> <p>(Syllabus by Mathews, C.)</p>

Error from. District Court, LeFlore County; W. H. Brown, Judge. Action by J. B. Pope, trustee of the estate of J. R. Olive, bankrupt, against' Charles Futoransky. From a judgment for plaintiff, defendant brings error.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by Will Duncan, by his next friend, L. A. Wiseman, • against the Harriss-Irby Cotton Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Hughes County; John Caruthers, Judge. Action by John L. Bruce, for partition of real estate, against Rosa McIntosh or Starr and Lee A. Voorhees; cross-petition by Voorhees claiming title to all of same. Judgment for defendant Voorhees, and plaintiff brings error.

Error from District Court, Le Flore County; W. H. Brown, Judge. Action by the State, on the relation of the County Attorney of Le Flore County, against John H. Hinton and others. Judgment for relator, and defendants bring error.

<p>APPEAL AND ERROR — Briefs—Failure to File — Reversal. Where the plaintiff in error has perfected an appeal and filed briefs and defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record to find some theory upon which judgment may be sustained; and where the brief filed appears reasonably to sustain the assignments of error, the court may reverse the judgment in accordance with the prayer of the plaintiff in error.</p> <p>(Syllabus by Clay, C.)</p>