Volume 58 — Oklahoma Reports

<p> Error from District Court, Muskogee County; R. C. Allen, Judge. </p> <p>Action by Virginia Hancock against the City of Muskogee and another. From a judgment for plaintiff, the City brings error.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. Suit by John D. Mitchell against Charles B. Shaffer and another, wherein Bessie Tyrrell, nee Offutt, and another were made parties plaintiff by an amended petition. From an interlocutory order, appointing W. A. Wise receiver of the lands and leasehold estate in controversy to operate the property for oil and gas purposes, defendants bring error.

<p>PROHIBITION — Nature of Remedy — Acts of Judicial Officer. Where plaintiff, in an original action against a county judge in this' court, alleges certain facts which entitle him to a, writ of prohibition, and where defendant admits the facts alleged by answer and in open court gives assurance that the matters complained of have been discontinued and will not again occur, and that the rights of plaintiff will be recognized and fully accorded him, the writ will not issue unless it should hereafter be made to appear that plaintiff’s rights have been further denied.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Custer County; J. W. Lawter, Judge. .Action by Ellis Lamb and another, doing business under the firm name of Lamb & Tyner, against the Chick-asha Cotton Oil Company. Judgment for plaintiffs, and defendant brings error. •

<p>Original petition by B. M. Parmenter and another for writ of certiorari to Robert J. Ray, as County Judge of Comanche County, to review an order appointing J. Conner special administrator of the estate of Abraham F. Kindt, deceased.'</p>

Error from District Court, McClain County; R. McMillan, Judge. Action by J. W. Hocker and others against B. 0. White and others. Judgment for plaintiffs, and defendants bring error.

<p> Error from County Court, McCurtuin County; E. E. Cochran, Judge. </p> <p>Action by E. L. Spriggs against James E. Whitehead. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grady County; J. T. Johnson, Judge. Action by Dennis O’Brien and others against the City of Chickasha and others. Judgment for plaintiffs, and defendants bring error.

<p>1. STATES — Effect of Admission of State — Appeal from Justice-Summary Judgment Against Sureties — Jurisdiction. Section 6398. Comp. Jjaws Okla. 1909, in force in the Territory of Oklahoma at the time of the admission of the state into the Union, not being repugnant to the Constitution or locally inapplicable, was extended over and put in force in the state by section 2 of the Schedule of the Constitution, and conferred upon the county courts of the state the same jurisdiction to enter a summary judgment "against a surety upon an appeal bond in a cause appealed from a justice of the peace to the county court formerly exercised by the district courts of the territory.</p> <p>3. APPEARANCE — General Appearance — Proceedings to Vacate Judgment. Where a party against whom a judgment is rendered files a motion to vacate the judgment upon the ground that the court has no jurisdiction of the defendant, and said motion is based upon nonjurisdictional as well as jurisdictional grounds, held, that thereby said party enters a general appearance, as though said appearance had been made at the trial.</p> <p>(Syllabus by the Court.)</p>

<p>1. PLEADING — Exhibits—Effect. Where suit is brought on an instrument in writing, for the payment of money, and a copy of such instrument is attached to the petition and made a part thereof, such copy should be considered as a part of the petition when construing the allegations thereof on demurrer.</p> <p>2. CONTRACTS — Validity—Public Policy. The county commissioners of C. county accepted from D., H., and T. their bond, conditioned that, if the courthouse about to be erected in said county should be located on a certain block in the county seat, they would pay the county the excess cost thereof over and above $8,000, but not to exceed the penal sum of $15,000. The commissioners, relying thereon, acquired title to said block by purchase and condemnation proceedings at a total cost of $10,391.05, and thereupon instituted action against the makers of said bond to recover $2,391.05, the amount alleged to be due thereon. Held, that the bond was a valid obligation and not violative of public policy, there being no charge that the commissioners were improperly influenced, or that the public welfare was made subordinate to personal considerations or private gain, or that the location was made in disregard of the public interests.</p> <p>(Syllabus by the Court.)</p>

<p>RAILROADS — Construction of Railroad Crossings — Restoration of Highway — Question for Jury. In a suit in damages for personal injuries, based upon the theory that defendant had failed to restore a highway to its former state or to such a condition that its usefulness would not be materially impaired, in violation of Comp. Laws 1909, sections 1360, 7498, evidence, examined and held, that, as there was evidence reasonably tending to prove the condition of the highway at the place of the accident, prior to the construction of the crossing at which the injury occurred, and that the same had not been restored, the court did not err in submitting to the jury the question of whether it had been restored. Held, further, that sedtion 7498, supra, was applicable to a railway crossing constructed prior to its enactment.</p> <p>NEGLIGENCE — Imputed Negligence — Automobile Accident— Negligence of Driver. The contributory negligence of the chauffeur cannot be imputed to one who is traveling in the vehicle with him by invitation of the owner of the car. To render one liable for the negligence of the chauffeur, either the relation of master and servant or principal and agent must exist, or the parties must be engaged in a joint enterprise, whereby responsibility for each other’s acts exists.</p> <p>3. NEGLIGENCE — Imputed Negligence — Joint Enterprise. Parties cannot be said to be engaged in a joint enterprise, within the meaning of the law of negligence, unless there be a community of interests in the objects or purposes of 'the undertaking, and an equal right to direct and govern the movements and conduct of each other with respect thereto. Each must have some voice and right to be heard in its control or management.</p> <p>4. RAILROADS — Injuries at Crossings — Automobile Accident— Proximate Cause. In a suit in damages for personal injuries, where the evidence discloses that, at the place of the injury, defendant’s track ran practically east and west and intersected the public highway at right angles on about a five-foot grade; that 'the highway was carried over the railroad on a crossing., and sloped back on both sides of the track for a distance of some 20 feet; that about that distance south and parallel to the track, and some three or four feet under the surface of the highway, defendant had placed a culvert, consisting of pipe about 18 inches in diameter and about 25 feet long, for the purpose of conveying the water from the hills south and east of the railroad into a creek some 40 or 50 feet from its wesit end; and that, at the time of the injury the water, in flowing through the culvert and falling from the west end of the pipe, had made a hole some 20 or 30 feet in diameter down to the level of the water in __ the creek, a distance of some 18 feet, and had caused the dirt over that end of the pipe to sink and encroach upon the highway to such an extent that, while the wagon track of the highway ran straight from the crossing up to the hole, it deflected to the left around the hole, which was obscured by weeds and undergrowth; and that, on the day of the injury, deceased and two others were riding as guests of -the owner in the back seat of an automobile, going south along this highway; that over the chauffeur, in 'the front seat, he had no control; that the ear mounted the crossing between the rails of defendant’s railroad ■slowly and a little to the west of the traveled way; that, after the front wheels had crossed the south rail,' the. chauffeur, having • dropped the magneto key on the floor of the car, with his right hand still grasping the steering wheel, reached to pick it up and that, while so doing, he deflected the car so far to the right as to run to the edge of the hole, where it slipped on the crumbling earth and fell into the hole, and in falling turned over and killed deceased — held, that the negligence of the defendant in leaving the hole in the highway was the proximate cause of the injury.</p> <p>5. NEGLIGENCE — “Proximate Cause” — Concurrent Act. Where the negligence of defendant and the act of a third person concur to produce the injury complained of, so that it would not have happened in the absence of either, the negligence is the proximate cause of the injury.</p> <p>6. RAILROADS — Injuries at Crossings — Action for Damages — Instructions on Care Required. That part of the charge which made it the absolute duty of defendant to keep the hole in question “free from weeds, brush, or other obstruction, or.to erect such barriers as would reasonably be calculated to prevent the driving or falling in such hole by persons traveling that highway,” was not error in that it placed too high a degree of care on defendant.</p> <p>' 7. NEGLIGENCE — Imputed Negligence — Contributory Negligence— Question of Law. On the undisputed facts in this case, the question of imputed negligence was one of law for the court, and not a question of contributory negligence required to be left to the jury as a question of fact, by Const, art. 23. sec. 6.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by the State of Oklahoma, on the relation of C. Caldwell, County Attorney in and for Craig County, and others, against D. B. Stutsman and another. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by Emma Noble against O. A. Harriman and ai. other. On the death of plaintiff, her administrator, V. R. Noble, was substituted as plaintiff. Judgment for defendants, and plaintiff brings error.

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by D. King against the Williamson-Halsell-Frasier Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Original application for mandamus by the Board of County Commissioners of Creek County and another against W. L. Alexander, State Treasurer.</p>

<p> Error from District Court, Oklahoma County; W. R. Taylor, Judge. </p> <p>Action by Ellen D. Cabell against the American Surety Company of New York. Judgment for plaintiff, and defendant brings error.</p>

<p>BUILDING AND LOAN ASSOCIATIONS — Transactions Invalid— What Law Governs. A contract between a building and loan association and one of its members made in this state, to be performed in the State of Colorado, is governed by the laws of the place of performance; and, if valid under the laws of that state, when executed, cannot lie attacked in this state, where the land mortgaged to secure the contract debt is situated, for usury exacted in violation of Constitution, art. 14. sec. 3. and Rev. Laws 1910. sections 1004, 1005.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Cherokee County; John H. Pitchford, Judge. </p> <p>Action between Jeff Keener and Charles Buttler. From the judgment, Keener brings error.</p>

Error from Superior Court, Pittsburg County; W. C. Liedthe, Judge. Action by Dorano Dansby and another against W. P. Donnell, as administrator of the estate of Sam Lewis, deceased, and another. Judgment for plaintiffs, and defendants bring error.

<p>Í. Original application by Rose Haney for writ of certi-orari to. Henry De Long, Justice of the Peace in and for the city of Pawnee, Pawnee county.</p>

Error from District Court, McIntosh County; Preslie B. Cole, Judge. Condemnation proceedings by the City of Eufaula against Kate S. Ahrens and others. On motion of defendants the report of the commissioners was set aside and a new appraisement ordered, and plaintiff brings error.

<p> Error from District Court, Ottawa, County; Preston S. Davis, Judge. </p> <p>Action by D. W. Rousney against M. L. Patterson. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Suit by R. N. Dunagan and others, taxpayers of the incorporated town of Red Rock, against the Town of Red Rock and others, to enjoin the execution, issuance, and delivery of $22,000 in municipal bonds, voted at a special election for waterworks purposes. From a judgment for defendants, plaintiffs bring error.

Error from District Court, Atoka County; Robert M. Rainey, Judge. Action by Angeline Porter and another against F. E. Adams and another. Judgment for plaintiffs, and defendants bring error.

Error from, District Court, Bryan County; Jesse M. Hatchett, Judge. Action by the Bennington Lumber Company against H. W. Attaway and others. There was a judgment for defendants, and plaintiff brings error.

<p>FRAUDULENT CONVEYANCES — Transactions Invalid — Bulk Sales Law. Section 2903, Rev. Laws 1910, providing that the transfer in bulk of a stock of goods shall be presumed to be fraudulent and void against the creditors of the transferor unless the proposed transferee shall make inquiry for and notify the creditors of the transferor, does not require him to do this as to creditors of one who had sold to his transferor.</p> <p>(Syllabus by the Court.)</p>

Original action by the State, on the relation of Charles H. Nichols and others, for mandamus to Hal Johnson, County Judge. Heard on application for rub to show cause.

<p> Error from District Court, Muskogee County; R. P. de Graffenried, Judge. </p> <p>Action by.John S. Halliday-against Harry Hibbard. Judgment for plaintiff, and defendant -brings error.</p>

<p>1. BANKS AND BANKING — National Banks — Liquidation—Actions. Where a national bank is placed in voluntary liquidation and a liquidation agent appointed, the corporate existence of the bank continues until the duties of the liquidating agent have been performed and the affairs and business of the bank completely settled, and during this timé the bank is capable of suing and being sued in its corporate capacity, and creditors have the right to enforce their claims against the bank or determine the validity thereof by suit in the proper court.</p> <p>2. PROCESSi — County to Which Issued. Where an action is rightfully commenced in any county, summons may issue to any other county and be there served upon one or more of the defendants.</p> <p>3. GUARANTY — Requisites—Notice to Guarantor. Where a guaranty is made in response to an offer by the guarantee, its delivery to the guarantee completes .the. contract, and notice of its acceptance by the guarantee and of. an'intention to act thereunder is not necessary.</p> <p>4. BANKS AND BANKING — National Banks — Liabilities. A national bank which, in pursuance of an agreement with its debtor that he will apply the proceeds of a loan upon his indebtedness to the bank, guarantees the payment of said loan at maturity, is liable to the lender for the amount received by it in the execution of its agreement, even though such guaranty be beyond its powers under the National Banking Act (Act Cong. June 3, 1864. c. 106, 13 Stat. 99).</p> <p>(Syllabus by the Court.)</p>

Error from. District Court, Murray County; F. B. Swank, Judge. Action by Bird Ashton against the Board of County ' Commissioners of the County of Murray and others. Judgment for defendants, and' plaintiff brings error.

<p> Error from District Court, Oklahoma County; Geo. W. Clark, Judge. </p> <p>Action by W. P. Haley against George W. Binning and another. Judgment for plaintiff, and defendant National Surety Company brings error.</p>

<p>Original application by S. G. Wood for writ of habeas corpus.</p>

Error from District Court, Carter County; A. Eddleman, Judge. Action by Geo. E. Pinkston and others against J. W. Marlow. Motion of defendant for new trial sustained, and plaintiffs bring error.

<p>1- SUFFICIENCY OF EVIDENCE. Record examined and held, that the verdict is supported by the evidence.</p> <p>2. PLEADING — Demurrer—Waiver of Error. Where the trial court, upon overruling a demurrer to the petition of the plaintiff, grants ■the defendant time to file an answer and he does so within the time granted, he thereby waives any error the court may have committed in overruling his demurrer.</p> <p>3. STATES — Territorial Courts — Transfer of Jurisdiction on Admis- - sion of State. The county courts of the State of Oklahoma must be deemed to be the successors ■ of the probate courts of the Territory of Oklahoma.</p> <p>4. GARNISHMENT — Undertaking by Defendant — Effect. Where an undertaking is executed by the defendant pursuant to the provisions of section 4838, Rev. Laws 1910, by virtue of which a garnishment proceeding against him is discontinued, he is thereby estopped from questioning the regularity of ¡the garnishment proceeding.</p> <p>5., STATES — County Court — Jurisdiction. A creditor is entitled to proceed by garnishment in the county courts of the state, under . section 4822, Rev. Laws 1910, said section being applicable' by . virtue of section 1563, Stat. Okla. 1893. which was extended over and put in force in the state by section 2, art. 25, of the Schedule to-tlie Constitution.</p> <p>6. INSTRUCTIONS NOT ERRONEOUS. Record examined, and held, thait no reversible error was committed by the trial court in the instructions given or in refusing to give certain instructions requested.</p> <p>(Syllabus by the Court.)</p>

<p>PLEADING — Judgment on Pleadings — Reply—Sufficiency. In an action upon a promissory note the petition was substantially in the statutory form, alleging briefly the execution of the note, that certain payments had been made, which were indorsed thereon, and that there was still due and owing the plaintiff from the defendant a certain stated sum. The answer of the defendant admitted, the execution of the note, and by way of affirmative defense alleged in substance that subsequent, to the execution and delivery of the note, and prior to the commencement of the action, the plaintiff, for a valuable consideration, entered into an oral agreement with the defendant and other joint and several makers of the note, to the effect that each of said makers should be liable severally for a certain specified and definite amount of said note, and that upon payment of such amount by any of said makers the liability of such maker should cease and be extinguished; that, the defendant upon the date shown by the indorsement of payments upon a copy of the note attached to plaintiff's petition made payment in full according to the terms of the latter agreement and thereby became discharged from any further liability upon said note. The reply is in words and figures as follows: “Plaintiff for reply to the answer of Sam 0. Lambert denies each and every allegation therein contained inconsistent with the allegations of plaintiff’s petition; and alleges that ithe matters and things set up therein are no defense to plaintiff’s cause of action.”' Thereafter motion for judgment on the pleadings was filed by the defendant, upon the ground that neither the answer filed by the defendant nor the reply filed by the plaintiff thereto raised or joined any issue to be tried in this case, which motion on the same day was overruled by the court. Thereafter, and on the same day, said cause came on for trial by the court, the plaintiff offering in evidence the original note sued on in said action, and which was the only evidence offered or introduced at said trial. Said defendant electing to stand upon his motion for judgment upon the pleadings, offering no evidence in support of the allegations contained in his answer, the court rendered judgment in favor of the plaintiff and embodied in the journal entry of judgment his ruling upon the motion for judgment on the pleadings. Held* that the reply, in absence of a motion to make more definite and certain, or other attack which, if sustained, would afford the pleader an opportunity to amend, was sufficient to put in issue the allegations of de-fensiye new matter contained in the answer.</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Brycm County; J. L. Rappolee, Judge. </p> <p>■Action between the Incorporated Town of Caddo and the J. S. Terry Construction Company. From the judgment, the town brings error.</p>

<p>1. INSURANCE — Fraternal Benefit Insurance — Proofs of Death. In an action on a benefit certificate of a fraternal insurance association, the plaintiff! must prove a reasonable compliance with the requirements of the association as to the furnishing of proofs of death.</p> <p>2. SAME. A member of a fraternal insurance association, in his application for membership, agreed that no claim by his beneficiary should be valid until proofs were made and filed, establishing such claim in accordance with the laws, rules, and regulations of the association in force at the time such claim was made. Upon the death of the insured, and after proofs were received, the association requested that the proofs be made in a manner not ■provided for in the laws, rules, and regulations. Held, that the officers of the association were without power to impose further duties upon the beneficiary as to the manner of making the proofs of death; that the beneficiary could not be required to comply with such unwarranted request; and that from the record it appears that the proofs of death reasonably complied with the laws, rules, and regulations of the association.</p> <p>3. SAME — Waiver of Objections. Where proofs of death are received and retained without condition or objection, except to demand compliance with certain requests of the association, which requests it had no authority to make, the association will be held to have waived any objections thereto which it might otherwise have urged.</p> <p>4. SAME — Actions—Conditions Precedent. The failure of a fraternal insurance association to comply with the provision of its by-laws, in regard to the disapproval of death claims, excuses the beneficiary from complying with the further and related provision that all claims must be submitted to the proper tribunals within the order before commencing a suit in law or equity, and permits such beneficiary to maintain an action on the benefit certificate in the courts of this state, without first having sought relief in the tribunals of the association.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Seminole County; Tom D. MeKeown, Judge. </p> <p>- Action by Richmond Davis and others against J. A. Gafford. Judgment for plaintiffs, and defendant brings ' error.</p>

<p> Error from District Court, Okfuskee County; Tom D. McKeown, Judge. </p> <p>Action by Roley Sands against Harvey Gregory Malot and others. From the judgment in favor of plaintiff, defendant William H. Dill brings error.</p>

<p> Error from District Court, Custer County; ■ T. A. Edwards, Judge. </p> <p>Action by J. W. Lawter against the Board of County Commissioners of the County of Custer. Judgment for plaintiff, and defendant brings error.</p>

<p>1; LIMITATION OF ACTIONS — Pleading—Demurrer. Where a petition upon its face does not show that the cause of action is barred by the statute of limitations, a demurrer thereto, urged especially upon that ground, should be overruled.</p> <p>2. PLEADING — Motions—Mailing More Definite and Certain. Where a motion to make more definite and certain a paragraph of the petition seeks to raise a question presentable only by demurrer, the same should be overruled. - '</p> <p>3. APPEAL AND ERROR — Review—Harmless Error — Pleading. Petition examined, and held, that it was harmless • error, if any, to overrule a motion to strike as surplusage certain allegations complained of in the petition.</p> <p>4. CANCELLATION OF INSTRUMENTS — Conditions Precedent-Restoration of Consideration. Where, in a suit to rescind a contract for the sale of stock and to cancel certain deeds purporting to convey certain lands executed in payment therefor and certain mortgages and a deed subsequently executed by the grantee in the first deeds, it appeared that the sale was fraudulent and the stock -of no value and that plaintiffs had parted with their title and possession thereto and they could not restore, Rev. Laws 1910, sec. 986. construed, and held, that, as it is “everything of value” only that need be restored, the court did not err in decreeing a rescission and cancellation' of the deeds and mortgage complained of.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Hughes County; 'John Caruthers, Judge. </p> <p>Action by Kizzie Long and others against R. M. Me-Farlin and others. Judgment for defendants, and plaintiffs bring error.</p>

<p> Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. </p> <p>Suit for divorce by Jack Copeland against Obie Copeland. There was a judgment for plaintiff, and the husband was granted exclusive care and custody of a minor child of the marriage. The order was subsequently modified, and plaintiff brings error.</p>

<p>1. CONSTITUTIONAL LAW — Constitutionality of Statutes — ¡Determination of Question. The Supreme Court will not pass upon the constitutionality of an act of the Legislature, nor of any of its provisions, until there is presented a proper case in which it is made to appear that the person complaining by reason thereof has been or is about to be denied some right or privilege to which he was lawfully entitled or who is about to be subjected to some of its burdens or penalties.</p> <p>2. TAXATION — Collection—Injunction.' Section 4881, Revised Laws 1910. which authorized the issuance of an injunction to restrain the illegal levy and collection of a tax, has been modified in respect to matters of taxation by section 7 of chapter 107, p. 149, Session Laws 1915, where an effectual remedy has been provided in such cases.</p> <p>3. SAME — Remedies. It was within the power of the Legislature to enact said section 7, and the remedy therein provided is plain, speedy, and adequate, and is exclusive.</p> <p>4. INJUNCTION — Existence of Other Remedy. By section 1, c. 117, Session Laws 1915, p. 169, any person aggrieved at the actmn of the board of county commissioners in allowing and ordering paid any claim against the county may appeal from the decision of the county commissioners to the district court upon filing a bond as therein required, and such remedy is plain, speedy, and adequate, and equitable relief by injunction against the apprehended action of the commissioners in the premises cannot be had.</p> <p>(Syllabus by the Court.)</p>

<p>1.‘ CONSTITUTIONAL LAW — Power to Regulate Commerce — Liberty of Contract. The constitutional guaranty of liberty of the individual to enter into private contracts does not limit the power of Congress so as to prevent it from legislating upon the subject of contracts in restraint of interstate or foreign commerce.</p> <p>2. MONOPOLIES — Validity of Contracts — '“Restraint of. Trade.” A contract of absolute sale, made by a manufacturer of its various manufactured preparations, in which the purchaser agrees to sell the goods purchased “at regular retail prices to be indicated by it (.the manufacturer),” where its entire product is sold throughout the country only by means of like restrictive contracts, operates as a “restraint of trade,” unlawful as to interstate commerce under the Anti-Trust Act of July 2, 1890 (26 Stat. 209, c. 647; IT. S. Comp. St. 1901, p. 3200).</p> <p>3. ■ SAME. Where commodities have passed into -the channels of trade and are owned by dealers, the validity of agreements to fix and control the price paid therefor by the consumer is not determined by the circumstance whether they were produced by several manufacturers or by one, or whether they were previously owned by one or by many. The manufacturer having sold its product at prices satisfactory to itself, the public is entitled to whatever advantage may be derived from competition in the subsequent traffic.</p> <p>4. SAME. The defense that a contract is in violation of the act of Congress, of July 2, 1890 (26 Stat. 209, c. 647), to protect trade and commerce against unlawful restraints and monopolies, which makes illegal every contract, violative of its provisions, may be set up by a private individual when sued thereon, and, if proved, constitutes a good defense to the action.</p> <p>(Syllabus by the Court.)</p>

<p>1. JURY — Suits in Equity — Quieting Title. A suit to clear title to ' 120 acres of land, part of her allotment, by a citizen of tbe Creek Nation, on tlie ground that her deed thereto was procured by fraud and was also executed in violation of section 19 of an act of Congress approved April 26, 1906 (chapter 1876; 34 Stat. 144) which provides: “And every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions, be and the same is hereby declared void” — is, pursuant to Bev. Laws 1910, sec. 4994, properly triable by the court, subject to its power ¡to order any issue or issues of fact tried by a jury.</p> <p>2. APPEAL AND ERROR — Presenting Questions in Trial Court— Mode of Trial. Where, without objection;- such cause is tried to a jury and a general verdict returned upon which a judgment was rendered and entered by ¡the court as in a suit at law, held, that such was error; but, being uncomplained of in the trial court, it is too late to complain of it here for the first time.</p> <p>3. APPEAL AND ERROR — Disposition of Cause — Rendition of Judgment. Where such is the state of the record, this court on appeal will consider the whole record and weigh the evidence, and, where the same is uncontroverted, render, or cause to be ' rendered, such judgment as the trial court should have rendered.</p> <p>4. INDIANS — Lands—Conveyances—Validity. A citizen of the "Creek Nation received $300 of the recited consideration of $3,600, and on July 2, 1907, prior to the removal of her restrictions, made, executed and delivered a deed to a part of her allotment, void under section 19 of an act of Congress approved April 26, 1906.. At the same time she took back from the grantees therein their two promissory notes, one for $1.700, payable August 9, 1907, the other for $1,600, payable August 9, 1908, and agreed to meet them at the same place on August 9, 1907, which she did. There on that day, her restrictions in the meantime being removed by operation of law, they took up both notes, paid her .the note for $1,700, and took from her another deed for the same land, which recited the same consideration, and that $2,000 of it was that day cash in hand paid, and executed and delivered to her their note for $1.600. payable one year thereafter. Held, that, although executed at different times, both deeds were evidence of or part of one and the same transaction, and should be construed together; that, the first deed being void as in fraud of the statute, not only in that for the making of which an agreement was entered into before the removal of restrictions, but in that a part of the consideration of the first entered into the consideration for the second deed, the taint of illegality in that deed tainted the second, and that both are void. Held, further, that, being void, the subsequent purchaser of the land took no title.</p> <p>5. CONTRACTS — “Agreement.” An “agreement” is a coming together of parties in opinion or determination; the union of two or more minds in a thing done or to be done; a mutual assent to do a thing.</p> <p>6. INDIANSi — Lands—Restrictions on Alienation — -^‘Transaction.” As “transaction” is derived from the Latin words “trans,” meaning across, and “agere,” to drive, evidence examined, and held that the transaction here involved was putting, or driving, across ■tlie title to tlie land from plaintiff to tlie defendant grantees, and that the two deeds executed for that purpose were evidence of or part of that transaction, and should he construed together, not only to determine what the contract or agreement evidenced thereby was, but with what intent it was made.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Muskogee County; H. C. Thurmcm, Judge. Action by L. B. Brown and others against M. S. Wilson and others. Judgment for defendants, and plaintiffs bring error.

<p>1. GIFTS — Inter Vivos — Gift by Husband. A married man may, during bis lifetime, give away his separate property, and such gift will be valid and binding against his widow, where she is not a creditor within the contemplation of the statute against fraudulent conveyances.</p> <p>2. SAME! — Delivery of Gift. A gift of chattels is complete and valid as an executed gift by deed alone and without an actual delivery of the chattels.</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Julia A. Friend against the Southern States Life Insurance Company. From a judgment sustaining a demurrer to the petition and dismissing the cause of action, plaintiff brings error.

<p> Error from County Court, Lincoln County; H. M. Jarrett, Judge. </p> <p>Action by J. M. Sensebaugh against the First National Bank of Wellston. Judgment for plaintiff, and defendant brings error.</p>

<p>1. APPEAL AND ERROR — Review—Questions of Fact — Sufficiency of Evidence. Where a verdict cannot be justified upon any hypothesis presented by the evidence, it will not be allowed to stand. The jury are not permitted to disregard the law and the evidence .and decide a case merely upon their own whim or according to what their notion of equity between the parties may be.</p> <p>2. SAME. I-t is only where the verdict cannot be justified upon any hypothesis presented by the evidence that it should be set aside on the ground that is is a compromise verdict.</p> <p>3. SALES — Action for Price — Sufficiency of Evidence. Evidence examined, and held to support the verdict.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Oklahoma County; George W. Clark, Judge. ,</p> <p>Action by the Curtis & Gartside Company against the ¿Etna Life Insurance Company. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Lincoln County; Chas. B. • Wilson, Jr., Judge. Action by Mary A. Mullen against John J. Gayman, county treasurer, and others. Judgment for plaintiff, and defendants bing error.

<p>• Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.</p> <p>Action ^y P. M. Powell against John J. Gayman, County Treasurer, and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by J. C. Weathers and another against John J. Gayman, County Treasurer and others. Judgment for plaintiffs, and -defendants bring error.

<p>■ Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge.</p> <p>Action by G. L. Thompson against John J. Gayman,, County Treasurer, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>1. INJUNCTION — Bond—Construction—“Defendant”. In an action upon an undertaking, given under section 4182. Stat. 1S93, as amended by Laws 1905. p. 319 (section 4877, Rev. Laws 19,10) to make' effective a temporary restraining- order,, running to “the defendants,” instead of. as required by said section of the statute, to secure the parties injured, the term “defendants” includes not only the nominal defendants, but all other parties against whom injunetional relief is asked and obtained to their . direct and immediate or necessary and natural injury.</p> <p>2. SAME — Parties—“Agents, Employees, or Persons Working by, Through, or Under Them.” Where, in an action upon an undertaking, given under section 4132. Stat. 1893, as amended by Laws 1905, p. 319 (section 4877, Rev. Laws 1910), to make effective a -temporary restraining order, the prayer of 'the petition and the order made are against certain specifically named defendants, their agents, employees, or any person or persons whomsoever acting or working by or through, or under them, and where such order is served upon and obeyed by independent contractors, who are not specifically named as defendants, but who are engaged in the work sought to be enjoined, this court, following the construction of the parties themselves thus-placed upon such order, will hold that ' such independent contractors are, within the meaning of the terms of such order, parties against whom injunctional relief is asked and obtained</p> <p>(Syllabus by the Court.)</p>

Error from District Court, Grady County; Will Linn, Judge. In the matter of the assessment of the First National Bank of Chickasha. From a, judgment of the district court, on appeal from an order of the County Board of Equalization of Grady County, such County Board and Board of County Commissioners of Grady County and the State bring error.

<p>Error from District Court, Kay County; Wm. M. Bowles, Judge.</p> <p>Action by the White Sewing Machine Company against the McCarty Furniture Company. Judgment for defendant, and plaintiff brings error.</p>

Error from District'Court, Creek County; Tom D. McKeown, Assigned Judge. Petition by the State, on relation of Chas. West, Attorney General, for mandamus to the City of Sapulpa and another. Judgment for defendants, and relator brings error.

<p> Error from District Court, Carter County; A. Eddleman, Judge. </p> <p>Action by Florence Lowery and another against Max Westheimer and others. - Judgment for defendants, and plaintiff Florence Lowery brings error.</p>

<p>Original application by the State, on relation of Lillie May Tuttle, for mandamus to George C. Crump, Judge of the District Court of Hughes County, Okla.</p>

<p> Error from District Court, Wagoner County; R. P. de Graffenried, Judge. </p> <p>Action between the Southern Surety Company and J. M. Turnham and others. From the judgment, the Surety Company brings error.</p>

<p> Error from County Court, Marshall County; J. I. Henshaw, Judge. </p> <p>Action between the St. Louis & San Francisco Railroad Company and W. N. Taliaferro. From the judgment, the railroad company brings error.</p>

<p> Error from District Court, Cleveland County; R. McMillan, Judge. </p> <p>Action by Lucinda Shipp, against I. B. Sale, sheriff of Cleveland county. Judgment for plaintiff, and defendant brings error.</p>

<p>1. COURTS — Judgment—“Jurisdiction” — Elements. The elements of jurisdiction are: (1) A court created by law, organized and sitting; (2) authority given such court by law to hear and determine causes of the kind in question; (3) power given such court by law to render a judgment such as it assumes to render; (4) authority over the parties to ithe case, acquired by their appearance or the service of process on them, if the judgment is to bind them personally and not merely as a judgment in rem; (5) authority over the thing adjudicated, upon by its being located within the court’s territory, and by actually seizing it if liable to be carried away if the judgment is to be in rem; and (6) authority to decide the question involved, which, if the other essen-‘i»l elements of jurisdiction exist, is acquired by the question being submitted to it by the parties for decision.</p> <p>(a) An order or decree of a court of general jurisdiction, or of .such jurisdiction of the particular subject in question, with the power to malee such order or decree under any possible state of facts in the case in which it was made, imports absolute verity and is not subject to collateral attack, except for fraud in its procurement, unless it affirmatively appears from the record of the action or proceeding in which the same was made that such court was without jurisdiction in respect to one or more of the above-stated elements essential in such case.</p> <p>(b) Where the record in a ease affirmatively discloses the facts to bo such that such court is without power in such case to make the order or decree it assumes to make, the same is void, and therefore subject to collateral attack for want of jurisdiction to the extent, at least, that such court is without power to make the same.</p> <p>2. JUDGMENT — Requisites—Effect of Partial Invalidity. If a judgment or decree includes a' decision of an independent and separable subject-matter or question within, and an independent " and separable subject-matter or question beyond, its jurisdiction, the same is valid as to the former and a mere nullity as to the latter, and is not void in toto.</p> <p>3. MORTGAGES — Validity—Effect of Partial Invalidity. When the consideration of a mortgage is made up of two or more distinct transactions, including one or more that are illegal and one or more that are legal, and the legal part of the mortgage can be separated from the illegal part of the same, it may be upheld and foreclosed to the extent of such distinct legal part.</p> <p>(a) 'Such illegal part does not necessarily invalidate the mortgage in toto when it does not enter into and taint the legal part of the same.</p> <p>4. GUARDIAN AND WARD» — Indians—Indian Lands — Mortgage—■ Collateral Attack. Under section 4, Act. Cong. May 27, 1908, e. 199, 35 Stat. 312, effective on and after July 27, 1908. for the removal of restrictions upon alienation from a part of the lands of the allottees of the Five Civilized Tribes of Indians, such lands are not subject to and cannot be held liable for any form of personal claim or demand against a Cherokee Indian minor allot-tee of one-eighth Indian blood arising or existing prior to July 27, 1908.</p> <p>(a) A county court can acquire no jurisdiction under Laws 1895, p. 37. as amended .by Laws 1901, p. 38, as amended by Laws 1905, p. 185 (section 6364, Rev. Laws 1910), and under said act of Congress, to determine whether the allotted lands of such Cherokee Indian minor of one-eighth Indian blood should be mortgaged to pay an existing claim or demand to which neither such hnuls, nor any part thereof, is, by reason of the laws oí this state or by reason of said act of Congress, then legally liable; and an order of such court, authorizing such mortgage, and the mortgage itself, to the extent of such claim or demand, are void and subject to collateral attack, without allegation or proof of fraud in their procurement.</p> <p>». SAME — Invalidity of Judgment. Where a guardian’s applica-lion for, authority to mortgage allotted lands of a Cherokee Indian minor, under Laws 1895, p. 37. as amended by Laws 1901. p. 38. as amended by Laws 1905, p. 185 (section 6364, Rev. Laws' 1910), shows upon its face that the total indebtedness of his ward’s estate is $1,312.98, of which a portion is not subject to be paid or secured by means of such mortgage, and, without alleging any necessity for mortgaging said real estate for more than the indebtedness subject to be paid or secured by means of such mortgage, prays for an order authorizing him to mortgage the same for $1,800, as a means to pay said indebetedness of $1,312.98, the county court acquires no jurisdiction to determine whether the same should be mortgaged for more than the amount of the indebtedness subject to be paid or secured by means of such mortgage under said statute, and under section 4 of the act of Congress of May 27, 1908, effective on and after July 27. 1908, relating to such lands, with interest thereon, and its order authorizing such mortgage for any excess of such amount, as well as the mortgage given in pursuance thereof, is, to the extent of such-excess, void and subject to collateral attack without allegation or proof of fraud.</p> <p>6. SAME — Validity of Order. An order, authorizing a guardian to mortgage his ward’s estate to pay existing indebtedness, to which the same is liable, under Laws 1895. p. 37, as amended by Laws 1901, p. 38, as amended by Laws 1905, p. 185 (section 6364, Rev. Laws, 1910), made on the same day that application therefor was filed, and without notice, although irregular, is not void, and is therefore not subject to collateral attack without alleging and proving fraud in its procurement.</p> <p>7. ' SAME — Correction of Orders — Nunc Pro Tunc. Where a guardian makes application under Laws 1895, p. 37, as amended bv Laws 1901, p. 38, as amended by Laws 1905. p. 1S5 (section 6364). Rev. Laws 1910). for an order authorizing him to mortgage his ward's real estate to pay existing debts, to which the same is liable, correctly describing sucli real estate in sucb application, and the court grants such application, but erroneously describes such estate as being situate in another township, where such ward owns no real estate, and such mortgage is executed by the guardian in pursuance of such order, but correctly describing such real estate, and where, upon application of an assignee of such mortgage more than two years thereafter, and after \such ward has attained her majority, such court enters a nunc pro tunc order, correcting such error, over the objections of such former ward, who. however, does not deny such error, such error will be regarded as merely clerical and subject to be so corrected.</p> <p>(Syllabus by the Court.)</p>

<p>1. BILLS AND NOTES — Legality of Consideration — Railroad Bonus Notes. A note given to a construction company made and delivered in the Indian Territory, to aid in the construction of.a line of railroad into á certain town, -on condition that said road be completed and in operation into said place by a date specified in said note, is not illegal or against public policy.</p> <p>2. SAME. Such note may be accepted and enforced by the construction company even though it be engaged in the construction of said road at the time the note was executed and delivered, and payment thereof cannot be defeated on the plea of want of consideration.</p> <p>3. PARTIES — Change of Parties — Transfer of Interest. Where the interest of a party in .the subject-matter of an action is transferred, it is not error for the court to permit the person to whom such interest is transferred to be substituted for the original party to the action.</p> <p>4. BILLS AND NOTES — Action—Parties—Transfer of Railroad Bonus Notes. Where a bonus note to aid in the construction of a line of railroad was executed and delivered to a construction company, and said line of railroad was completed by the construction company according to the conditions of said note, and thereafter the construction company was placed in the hands, of a receiver, who, upon order of the court in which such receivership proceedings were pending, assigned and delivered said note to the receiver of the railway company, and thereafter by order of the court the assets of the railway company, including said bonus note, were sold to one Q., who purchased on behalf of, and afterwards conveyed and delivered to, plaintiff railroad company, which sale was confirmed by the court ordering same, held, that plaintiff railroad company was entitled to maintain an action oil said note.</p> <p>5. APPEAL AND ERRDR — Briefs—Requisites. Assignments of error based upon the admission of testimony will not be considered, where the full substance of the testimony the admission of which is complained of, with the specific objections thereto, is not set out in the briefs of plaintiff in error in compliance with rule 25 of this court (38 Okla. x, 137 Pac. xi).</p> <p>(Syllabus by the Court.)</p>

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by Mrs. T.< L. Cox against the O. K. Bus & Baggage Company and others. From action of the county court in overruling motion to reinstate their appeal, the O. K.' Bus & Baggage Company and others bring error.</p>

<p> Error from District Court, Oklahoma County;Geo. W. Clark, Judge. </p> <p>Action by Sarah E. Niblo against Drainage District No. 3 and the Board of County Commissioners of Oklahoma County. Judgment. for defendants, and plaintiff brings error.</p>

<p> Error from District Court, Creek County; Wade S. Stanfield, Judge. </p> <p>Action by the' Midland Savings & Loan Company against Roxie H. Summers and another. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Hughes County;' • J. Ross Bailey, Judge. Action by M. F. Maine and another, doing business as Equitable Manufacturing Company, against C. R. Ed-monds. Judgment for defendant, and plaintiffs bring error.

<p> Error from County Court, Oklahoma County; John W. Hayson, Judge. </p> <p>Action by B. Levyson against H. Kapp. Judgment for plaintiff, and defendant brings error.</p>

<p> Error from District Court, Okfuskee County; Geo. C. Crump, Judge. </p> <p>Action between Israel Long and J. S. Bearden and others. From the judgment, Long brings error. Action between the United States Fidelity & Guaranty Company and Israel, Long and others. From the judgment, the Fidelity & Guaranty Company brings -error. Causes consolidated in Supreme Court.</p>

Error from. District Court, Woodward County; James B. Cullison, Judge. ■ Action between Essie Hart and others and the New State Bank. From the judgment, Essie Hart and others bring error.

<p>1. APPEAL AND ERROR — Review—Harmless Error — Statutory Provisions. The Supreme Court, in every stage of action, is required by statute (sections 4791 and 6005, Rev. Laws 1910) to disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party.</p> <p>2. CONTRACTS — Fraud—Effect. Contracts induced by fraud are not void, but voidable. The defrauded party may elect, with knowledge of the facts concerning the frau^l, to treat the contract as valid, and if he does so, he cannot thereafter change his position and insist that it is invalid.</p> <p>3. FRAUD — Actions—Evidence. A wide latitude is allowed in cases , of fraud, and circumstances altogether inconclusive, if separately</p> <p>considered, may, by their number and joint operation, especially when corroborated by moral coincidences, be sufficient to constitute conclusive proof.</p> <p>4. FRAUD — Elements in General. To constitute actionable fraud, it must-be made to appear: (1) That defendant made a material representation; (2) that it was false; (3) that when he made it he knew that it was false, or made it recklessly, without any knowledge of its truth and as 'a positive assertion; (4) that he made it with the intention that it should be acted upon by plaintiff; (6) that plaintiff acted in reliance upon it; (6) that •■he thereby suffered injury; and (7) all these facts must be proven with a reasonable degree of certainty, and all of them must be found to exist; the absence of any of them would be fatal to a recovery.</p> <p>5. BILLS AND NOTES — Actions—Questions for July. Evidence examined, and held, that there was sufficient evidence adduced at tlie trial to take the case to the jury on the questions of fraud, and whether the defendant with knowledge thereof executed the promissory note sued upon.</p> <p>(Syllabus by the Court.)</p>

<p> Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. </p> <p>Action by M. K. Owenby against Sam Harris. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pittsburg County; R. W. Higgins, Judge. Primary election contest by the State, on the relation of J. 0. Pierce, against Ernest Whitaker. Judgment for relator, and defendant brings error.

<p>APPEAL AND ERROR — Ease-Made—Amendments. Tire time witMn which to suggest amendments to a case-made begins to run after the expiration of the -time allowed within which to make and serve same, and not after the actual service thereof, and a case-made signed and settled before the .expiration of the time within which to suggest amendments is a nullity.</p> <p>(■Syllabus by the Court.)</p>

Error from District Court, Okmulgee County; Ernest B. Hughes, Judge. In the matter of location of a courthouse in Okmulgee county. From, a judgment dismissing an appeal from a decision of the board of county commissioners locating the site for a county courthouse, the county and certain taxpayers bring error.

<p>1. FRAUDS, STATUTE OF — Operation and Effect — Waiver. Under/ section 847, St. 1890 (section 941, Rev. Laws 1910), a special promise contract to answer for the debt, default, or miscarriage of another is invalid, at the option of the promisor, unless the same be in writing and be subscribed by him or his agent, but such invalidity is waived where oral evidence of such contract is admitted without objection1 upon the ground of such invalidity and the trial is concluded without the interposition of this statute as a defense.</p> <p>2. TRIAL — Action for Price — Instructions. Where the court first instructs the jury to the effect that, if plaintiff sold and delivered certain material to defendants and the latter agreed to pay a stipulated price therefor, he is entitled to recover that amount for them, and in a second, instruction to the effect that he is entitled to recover the fair value of said material as against such defendants, if any, as may be found to hav.e used the same, and in a third instruction to the effect that no recovery could be had against H. and W., two of the four défendants, unless they agreed personally with plaintiff to pay for said’ material, these instructions, construed together, aré not subject to the objection that they authorize a recovery against H. and W. for said material upon the ground of its use alone, especially in view of a state of evidence clearly showing its use by another defendant and less clearly tending to show its use by all the four defendants.</p> <p>3. APPEAL AND ERROR — Pleading — Amendment of Pleading — Amendments Regarded as Made. The amendment of a plea which ought to have been allowed, if- leave to make it had been asked in the trial court, .to conform it to.the evidence adduced without objection or by the adverse party will be regarded in this court as having been made.</p> <p>(a) Where the evidence adduced -by a defendant, to refute ' the theory upon which plaintiff seeks to recover, would sustain a verdict and judgment against-him upon a theory which might have been presented by the plaintiff in another count of his petition, the trial court ought, to allow an amendment, if asked, alleging such other count.</p> <p>4. SAME — Review—Harmless Error., Under section 6005, Rev. Laws 1910, no judgment will be set aside or new trial granted by this court on the ground of misdirection of the jury or the improper admission or rejection of evidence, or .as to error in any matter of pleading or procedure, unless, in the opinion of this court, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional' or statutory right.</p> <p>(a) After an examination of the entire record in this case it does not appear that any error complained of has probably resulted in a miscarriage of -justice, or constitutes a substantial violation of any constitutional or statutory right.</p> <p>(Syllabus -by the Court.)</p>

<p>INDIANS — Lands—Descent and Distribution. Where an allottee, a . Choctaw Indian, duly enrolled as such, died January 23, 1913, intestate, after receiving, his allotment, leaving him surviving no father nor mother, but brothers and sisters cf the whole blood and a brother and sister of the half blood, Rev. Laws 1910, secs. 8417, S41S, S427, construed, and held that he died seised of an ancestral estate, and that the brothers and sisters of the whole blood are entitled to take the allotment to the exclusion of a brother and sister of the half 'blood.</p> <p>(Syllabus by the Court.)</p>

Error from Superior Court, Muskogee County; ' Farrar L. McCain, Judge. Action by A. S. Overmyre, administrator of the estate of Guy E. Overmyre, against the Missouri, Oklahoma & Gulf Railway Company. Judgment for plaintiff, and defendant brings error.

<p>1. VENDOR AND PURCHASER — Remedies of Purchaser — Action to Recover Payments — Parties. In an action to rescind a contract for the purchase of land and to recover advanced payment made thereon upon the ground that defendant had failed ■to convey the character of title which he agreed to convey to a portion of the premises, the only necessary party defendant is the party to the contract against whom the decree of payment will operate.</p> <p>2. SAME. — Suit to Rescind — Restoration of Consideration. A person, induced by false and fraudulent representations to purchase real estate, may, upon discovering the fraud, bring an action in equity to rescind the contract, and in such cases should restore, or make an offer in his petition to restore,.everything of value which he has received under the contract.</p> <p>3. SAME — Performance of Contract — Title to Property. One who contracts to convey a certain character of title to real estate should be prepared and able to convey to the grantee an estate or interest therein substantially corresponding with that bargained for and agreed to be sold.</p> <p>4. SAME — Part Performance. G. contracted to convey to S. certain lands in fee simple and to deliver preference leases on certain school lands. He executed warranty deed 'to the lands to be conveyed in fee simple, but failed to deliver preference leases on a portion of the school lands. Held, that S. was not required to take a title different from that agreed to be delivered, and was entitled to rescind the contract.</p> <p>5. SAME — Remedies of Purchaser — Rescission—Lien. Where a vendor cannot convey the interest which he agreed to convey in all of the property, hut only to a part of it, the purchaser,, upon rescinding the contract, is entitled to a lien upon, the land of the vendor to secure repayment of purchase money advanced by him.</p> <p>(Syllabus by the Court.)</p>

<p> Error from District Court, Lincoln County; Tom D. McKeown, Assigned Judge. </p> <p>Action between the First National Bank of Wellstón and Milton H. Reed. From the judgment, the bank brings error.</p>

<p>HABEAS CORPUS — Discharge—Review on Appeal. Where, upon judgment of conviction for a felony and sentence to a term of imprisonment, the amount of appeal bond to be given by defendant in the judgment is fixed and time allowed in which to execute and file same, and defendant tenders an appeal' bond within the time allowed which the clerk refuses to approve and no complaint of tne action of the'" clerk is presented 'to the trial court, or judge thereof, but a petition for writ of habeas corpus is filed in the Criminal Court of Appeals which- is denied, and afterwards a petition for writ of habeas corpus is presented to the Supreme Court upon the same state of facts, and it appears that the conclusion reached by the Criminal Court of Appeals is correct, ithe writ will be discharged and petitioner remanded to the custody of the respondent.</p> <p>. (Syllabus by the Court.)</p>

<p> Error from District Court, Tulsa County; Geo. C. Crump, Assigned Judge. </p> <p>Action between Andrew Hertzel and, Luyanda Chambers and others. From the judgment, Hertzel brings error.</p>

Error from. County Court, Grady County; N. M. Williams, Judge. Action by W. T. Phillips and O. S. Penny, partners, doing business under the firm name of Phillips & Penny, and others against the Chickasha Investment Company, a corporation. There was a judgment for plaintiffs, and defendant brings error.

<p> Error from District Court, Tulsa County; L. M. Poe, Judge. </p> <p>Action by James Egan against John. M. Ingram and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by George D. White against James W. Lusk and • others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants bring error.