Volume 6 — Oklahoma Reports

<p>1. Appeal — Compliance with Statute. When a criminal cause is brought here upon writ of error or appeal^ in such a manner that the court cannot pass upon the substantial rights of the parties, the provisions of the statute relating thereto must be strictly complied with.</p> <p>2. Agreement op Attorneys — 'Will not Prevail Against Statute. An agreement of attorneys prescribing the time or manner of taking such appeal or bringing such writ of error here, cannot be substituted in lieu of the provisions of the statute.</p> <p>(Syllabus by the Court.)</p>

<p> Original Proceeding in Habeas Corpus. </p> <p>The facts are stated in the opinion.</p>

Error from the District Court of Cleveland County; before Frank Dale, District Judge. Action on account by Hill, Fontaine & Co., against Thomas E. Berry and A. A. Berry. Judgment rendered in favor of plaintiffs. Defendants appeal. Judgment of the lower court affirmed. The facts are stated in the opinion.

Error from the District Court of Grant County; before A. G. G. Bierer, District Judge. Action brought by W. T. Carter and E. A. Carter, partners as W. T. Carter & Bro., plaintiffs, against the Missouri Mining and Lumber company, in the probate court of Grant county, to recover a certain lot of lumber. Decision by the probate court in favor of the plaintiffs, from which judgment the defendant therein appealed to the district court.

Error from the District Court of Noble County; before A. G. C. Biérer, District Judge. Action by injunction commenced on petition of H. B. Bullen, et al. v. J. B. Wallace, as treasurer, the board of county commisioners, and the sheriff of the county of Noble, to restrain the defendants from collecting certain taxes. On behalf of the defenadants below the case is brought to this court by petition in error. STATEMENT OF FACTS.

Error from the District Court of Woodward County; before Frank Dale, Distinct Judge. STATEMENT OF THE CASE. The material parts of tbe record for consideration are the petition filed in the case on August 22, 1895, which is as follows: “In District Court in and for County of Woodward, Territory of Oklahoma. J. E. Love and J. T. Word, doing business under the firm name of Love & Word, Plaintiffs, v. Frank Garst, Defendant.

Error from the District Court of Roger Mills County; before Jno. L. McAlee, District Judge. Injunction proceedings to restrain certain county officers from issuing bonds for the payment of certain warrants. Perpetual injunction allowed by lower court.

<p>1. Provisional City — No Lawful Authority Possessed By. The so called provisional city of Guthrie was not a de jv/re nor de facto municipal corporation, and had no power to contract or bind itself or others, and its de facto or de jure successor or successors cannot be held liable upon its contract or for its torts.</p> <p>2. Municipal Corporations — Legislative Authority For. Prior to May 2, 1890, there was no law in the Territory of Oklahoma authorizing the creation or existence of municipal corporations. Where there is no law authorizing de jure municipal corporations a de facto corporation cannot exist. Muncipal corporations can only exist under and by virtue of legislative enactment. (1 Okla., 293.)</p> <p>3. Organic Act — De Facto Corporations. The Organic Act of May 2, 1890, made provision for 'the organization of Municipal corporations adopting and extending the Statutes of Nebraska over this Territory. The passage of said act did not eo mstanti convert the provisional government of the city of Guthrie into a de facto municipal corporation. The provisions in said statute relating to the organization of villages requiring a majority of the taxable inhabitants of such village to present a petition to the county commissioners of the county, praying that they may be incorporated into a village, designating the name they wish to assume and the meets and bounds of the proposed village and requiring said commissioners to enter an order of incorporation upon their records designating the metes and bounds thereof and declaring the said proposed village incorporated and appointing trustees therefor, were conditions precedent to the vesting of any municipal authority in such village corporation. The inhabitants of the so-called provisional city of Guthrie, having failed until the first of August, 1890, to attempt to comply with these conditions, did not, before that date become a corporation de jxwe or de facto. To establish a corporation de facto, the existence of a law authorizing its formation; proceedings taken for that purpose, professed compliance with the law, and acts of subsequent user are essential. A de facto corporation is one where the proceedings for its organization is irregular or defective when by regularity of proceedings to incorporate, it might be one de jure.</p> <p>(Syllabus by the Court.)</p>

Error from the- District Court of Canadian Countyj before Jno. H. Burford, District Judge. The appellant brought an action of replevin in the district court of Canadian county to recover possession of two promissory notes. Upon the trial, after the introduction of plaintiff’s testimony, defendant demurred, which demurrer was sustained. To reverse the ruling upon the demurrer plaintiff below appeals.

<p>1. Landlord and Tenant — Repair of Premises. In the absence of stipulation or covenant on the subject in a lease of a building no obligation on the part of the landlord is implied nor any war-rantee that the premises are, or will continue to be, suitable for the lessee’s use or business or safe from exposure to danger from the elements through the landlord’s omission to make repairs. This rule also extends in like manner to parts of the premises not expressly demised to the tenant, but which may be necessary to his convenience or protection as, in this case, the common roof.</p> <p>2. Covenant for Quiet Enjoyment. Where a lease contains no express covenant for quiet enjoyment, the law implies such a covenant from the contract of leasing. Whether a lease contains a covenant for quiet enjoyment or not, is, so far as the rights of the tenant are concerned, immaterial, as in all cases, unless otherwise expressly provided, the law implies such a covenant; and for a breach of such covenant, occasioned through the fault of the lessor, the lessee has his remedy for such damages as result to him therefrom.</p> <p>3. Damages — Counier-Glaims. Where the lessee is damaged by the disturbance of his possession by the lessor, the courts will not drive the lessee to his action for trespass for the recovery of such damages. The damages resulting from the breach of the covenant for quiet enjoyment arise out of the contract of leasing and in an action by the lessor upon the lease for rents due, such damages may be recovered by way of counter-claim.</p> <p>(Syllabus by the Court.)</p>

<p>Motion — Practice. The Statutes 'of 1893 do not include a motion as part of 'the pleadings in the cause, and make no provision for for bringing here for review, an order made upon a motion to dismiss an appeal in the district court, by a transcript of the record.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the Probate Court of Oklahoma Comity; before Won. P. Hao'per, Probate Joidge. </p>

<p> Error from the District Court of Oklahoma County; before James R. Keaton, District Judge. </p>

Error from the District Court of Oklahoma County; before A. 6r. C. Bierer, District Judge. This case is brought up by the county attorney of Oklahoma county, and involves the decision of the trial judge upon a demurrer to a complaint. The opinion states all the facts necessary for a determination of the question involved.

<p> Error from the District C-ourt of Canadian County; before John C. Tarsney, District Judge. </p> <p>STATEMENT OF FACTS.</p> <p>Action for damages for trespass. Judgment was had for plaintiffs for the sum of $11,040.50, from which defendants appeals.</p> <p>This case grows out of an alleged forcible entry by the city of Oklahoma City, through its officers, upon lots 40 and 41, in block 23, in the city of Oklahoma City. The forcible entry and detainer case brought by the Hills was before this court and decided in 4 Okla. 521, where many of the facts of the case are stated. This case was brought as an action for damages, and was filed in the district court of Oklahoma county on the 29th day of December, 1893. A change of venue was taken in the case to Canadian county on account of the alleged bias and prejudice of the people of Oklahoma county against the plaintiffs. Two amended petitions were filed. The original and first amended petitions made the mayor of the city, three councilmen and the police judge defendants with the city in the case, and charged a conspiracy and combination with AY. S. Field, who, it appears, was employed as an attorney for the city, Frank McMasters, R. E. Kelley and John Fightmaster, sheriff of Oklahoma county and his deputies, with others, to .forcibly, illegally and wrongfully oust the plaintiffs from these lots and the buildings thereon, and obtain possession thereof for the city. The trial was had on the second amended petition, and this laid the action against the city of Oklahoma City alone, and omitted the charge of conspiracy contained in the former pleadings, and alleged that plaintiffs were, on the 31st day of October, 1893, in the lawful and peaceable possession of the lots, and the buildings and improvements thereon, which they had erected at a cost of four thousand dollars, and that they had occupied these lots ever since the 23rd day of April, 1889, and that their occupancy was under claim of right as settlers upon and occupants of said lots for town-site purposes. That on the 31st day of October, 1893, the defendant, the city of Oklahoma City, through and by its officers, unlawfully and forcibly entered upon the lots and took possession of the same, ousted plaintiffs therefrom, and broke up and destroyed their business, which was that of a saloon business, in which they were engaged in the saloon building on the front end of one of the lots, it being the lot on the corner of the block in which these lots were located.</p> <p>This petition contained three counts for damages: First, for the rental value of the lots; second, for the recovery of the buildings or the value thereof; and third, for damages sustained on account of loss of stock and injury to their furniture and fixtures, and loss of profits of their business, the entire sum sued for amounting to $35,000.</p> <p>The defendant answered in nine paragraphs, in the first seven of which it admitted its corporate existence, and that the lands were public lands of the United States’ on April 22, 1889, and were on that day settled upon for townsite purposes, and have since been used by virtue of the townsite laws of the United States for townsite purposes, and that plaintiffs on said 22nd day of April, 1889, settled upon and improved these lots, and occupied the same until October 31, 1893; and denied the alleged trespass, or that the plaintiffs had suffered any damages.</p> <p>In the eighth paragraph defendant alleged that the plaintiffs did, in violation of the laws of the United States and a part of the provision contained in the acts of congress of March 1 and 2, 1889, enter the Territory of Oklahoma and occupy a portion of the Oklahoma lands subsequent to the president’s proclamation and prior to twelve o’clock, noon, of April 22, 1889, and that by such act the plaintiffs were disqualified from occupying any of said lands or acquiring any rights therein, and on the' 3rd of September, 1890, the trustees, duly appointed by the secretary of the interior for that purpose, did make entry of the lands occupied as a townsite at Oklahoma-City, and of which these lots were a part; that plaintiffs' made application for a deed to these lots, and that other parties also applied for deed thereto, and that the town-site trustees, upon the trial, held that the plaintiffs were disqualified from acquiring title to said lots by reason of their aforesaid unlawful entry into the Oklahoma country and upon these lots and that there being no other occupants of the lots and the same being vacant for want of a legal occupant, the lots should be set aside for the use and benefit of the defendant, the city of Oklahoma City, and that in pursuance of this decision, on the 18th day of October, 1893, the townsite board executed, acknowledged and delivered its deed to the defendant for these lots, and that it has since been the legal and equitable owner thereof. That plaintiffs appealed from this decision of the townsite trustees to the commissioner of the general land office, and the commissioner of the general land office affirmed the decision of the trustees, from which ruling the plaintiffs appealed to the secretary of the interior, who affirmed the decision of the commissioner of the general land office, set aside the said lots to the defendant as a site for public buildings, and caused the townsite trustees to execute to defendant a second deed for that purpose.</p> <p>The ninth paragraph alleged that the plaintiffs, on the 31st day of October, 1893, were conducting a saloon business in the corner room of said buildings, and in a room immediately above the saloon were conducting a gambling buisness, and that the room upstairs was connected with the saloon room by an open stairway on the inside of the building, and that on said day a complaint, under oath, was filed with one J. W. Davis, a justice of the peace in and for the city, charging the plaintiffs with a violation of the laws of the Territory in conducting said unlawful business of gambling, and also a complaint under oath was made before said justice charging plaintiffs with keeping blinds at the windows of said saloon, where intoxicating liquors were sold, in violation of law, and also keeping a billiard table in the same room where intoxicating liquors were sold. That warrants were issued upon these complaints to the sheriff of Oklahoma county, commanding him to arrest plaintiffs and all persons in their employ engaged in conducting such unlawful business, and to seize and take into his possession “all of the gambling devices and paraphernalia contained in said room, used by plaintiff for gambling; also all liquors and vessels containing the same, and all furniture pertaining to said saloon business of the said plaintiffs of every nature and description,” and that the sheriff executed these warrants and left the corner room of the building and upstairs vacant and unoccupied,- and defendant thereafter finding the building vacant and unoccupied went peaceably and quietly, without force, into the possession of said rooms and building; that defendant had nothing to do with removing said furniture from said building; and that defendant took possession thereof peaceably. During the trial of the case the court sustained a demurrer to the eighth and ninth paragraphs of.this answer, to which defendant excepted. •</p> <p>On the trial, the testimony of the plaintiffs tended to prove that plaintiffs settled on these lots on the 22nd of April, 1889; that they erected buildings covering all the corner lot, and on the front end, and extending back about fifty or sixty feet on the next lot. That they had had sole and exclusive possession of these lots ever since soon after April 22, 1889. ' That they were running a saloon business in the corner building, and that the other rooms and buildings were leased to tenants. That on the morning of October 31, 1893, the sheriff arrested plaintiff! Joe Hill, and his bar-keepers and attendants, and removed the stock of liquors and cigars, and his furniture and fixtures, from the building. The city mai-slial and several policenjen had arranged to be present, and were present at the time, and immediately after, and even during tlie time the sheriff was removing plaintiffs’ goods and furniture, proceeded to take possession of the corner building. The plaintiffs claimed, and offered some evidence tending to prove, that the marshal and policemen assisted the sheriff in the arrests and seizure. The police judge immediately removed into the upper room where the gambling had been conducted, and held police court therein, and the city council shortly thereafter moved its chambers into this room, and that the city had ever since held possession of this building, and collected the rents from the tenants in the other buildings. That the sheriff held the goods and furniture 'of plaintiffs for about two months, and then delivered the same back, with part lost and destroyed, and that which was returned in a damaged condition. Proof of the amount of damage was offered.</p> <p>Defendant, in support of its defense, offered in evidence the deed from the townsite board issued on October 18, 1893, which offer was denied and exceptions saved. The decision of the secretary of the interior in the case of Hill Brothers, and others, applicants for the lots, of date March 28, 1895, was offered in evidence, refused as evidence, but the court admitted it into the case on the theory that the court took judicial notice of such decision, so that this item of evidence was practically in. The defendant also offered to prove the allegations of the ninth paragraph of the answer, but this was refused, and at this time the demurrer to this paragraph was sustained, exceptions being taken to both rulings. The defendant also offered in evidence the second trustees’ deed, made and executed on August 1, 1895.</p> <p>The court instructed the jury, among other things, that if the officers of the city of Oklahoma City entered into a conspiracy with the sheriff of the county and his deputies to forcibly eject plaintiffs from the property, the city was liable for the damages resulting therefrom. Also, that although the plaintiffs had entered the Oklahoma lands in violation of the act of congress of March 2, 1889, until the final determination of their application for these lots they were entitled to retain possession thereof, and could recover damages from the defendant for an unlawful dispossession, and that the measure of damages would be. the value of the use of the premises from the time of the ouster to August 1, 1895, which was the date of defendant’s second deed. And also for damages for injury to the stock of goods and to the furniture, and for the loss of profits, and also for the value of their liquor licenses for the remaining portion of the quarter from October 1st to December 31, 1893, the latter date being the expiration of the shortest one of plaintiffs’ licenses from the government, county and city.</p> <p>The defendant asked instructions that the city could not be held liable for the torts of its officers; also on the theory of the case presented by the eighth and ninth paragraphs of the answer, which were refused, and defendant saved exceptions to the instructions given, and also to those refused. Plaintiffs saved no exceptions to the instructions.</p> <p>The jury found for plaintiffs in the sum of $11,040.50 and upon the special questions submitted by defendant found the items of damage-to be first,-for loss of business $600, second, for loss of personal property of plaintiffs $900, third, for the use of the saloon building, for the first two months, nothing, as they allowed for the loss of profits oí business for those two months, for the remaining nineteen months $2,375 and for the remaining rooms, 21 months, $3,622.50. The general verdict was for $11,-040.50, which was $3,543 in addition to the items covered by the special findings.</p> <p>Defendant moved for a new trial, which was overruled and exceptions saved, and to reverse the judgment rendered on the general verdict this appeal is taken. Some other facts appear in the opinion. . ___ ___</p>

<p> Ei:a: from the District Court of Canadian County; before Jno. R. Burford, District Judoe- </p> <p>The facts are stated in the opinion.</p>

Error from the District Court of Logan Countyj before John H. Burforcl, District Judge.

<p>1. Trust Estate — Administration of — Judge a/nd Receiver Interested Parties. Evidence examined and held sufficient to show that both the receiver anti the judge who appointed him sustained such relations to the insolvent bank and its president, at the time .of such appointment, as to be interested in the administration of the trust estate, and therefore improper persons to supervise the settlement and distribution of same.</p> <p>2. Receivers — Compensation of — Expenditures—When Proper Charges AgaAmst Trust Estate. Receivers of insolvent institutions should only be allowed adequate compensation for the amount and character of the services performed by them for the trust estates placed in their charge, and useless and extravagant expenditures made by them should oe disallowed.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Oldahoma County; before-Henry W. Scott, District Judge. </p> <p>STATEMENT OP PACTS.</p> <p>The following are the material facts in this case,, to-wit:</p> <p>1. On February 15, 1890, Jefferson L. Byrne sold to plaintiff in error a span of horses, fraudulently representing that the said horses were his (Byrne’s) property,, when, in fact, they were owned by one J. A. Little who, on the 27th day of January, 1891, legally took the possession thereof from said plaintiff in error.</p> <p>2. The said plaintiff in error, on the 3rd day of February, 1891, brought an action in the district court of Oklahoma county for damages, in the sum of five hundred. dollars, against the said Byrne, on account of the fraudulent sale to him of the said horses and the failure of the title thereto, and in said action, on said date, caused an .attachment to issue out of said court against the property of the said Byrne, which said writ of attachment was forthwith levied upon the southeast quarter of section 30, township 14, north, range 1, west I. M., and the said Byrne was duly served in said action, and, subsequently thereto, entered his appearance therein.</p> <p>3. On January 31, 1893, the said cause of John J. Flanagan v. Jefferson L. Byrne was regularly called for trial in said court and the said court and the said' Byrne failed to appear but made default therein, and thereupon the •said Flanagan introduced his evidence in said cause upon which judgment was rendered in his favor for the sum •of $415 and costs of said suit, and the attachment theretofore issued out of said court and levied upon said above •described tract of land was duly sustained, and an order •of sale made directing that so much of said tract as was necessary be sold and the proceeds derived therefrom applied to the payment of said judgment and costs.</p> <p>4. Some time prior to the sale of said span of horses to ■said plaintiff in error by the said Jefferson L. Byrne, he (Byrne) entered the said tract of land, so levied upon and ordered sold under said writ of attachment, as a homestead under the laws of the United States,and,on August 11, 1890, made final proof therefor at the United States land office at Oklahoma City, O. T., and received from the receiver of said land office at final or patent receipt for said tract of land, and a patent therefor was duly issued to him by the United States on November 3, 1891, and the complete legal and equitable title to the said land remained in said Jefferson L. Bryne up to the time of the rendition of the said judgment against him and in favor of the plaintiff in error.</p> <p>5. On July 12, 1893, the said Jefferson L. Byrne, for a valuable consideration, by deéd, conveyed all his right, title and interest within and to said above described tract of land to H. 0. Forsythe, the defendant in error herein, who, on August 23, 1893, and before any execution had been issued on the judgment hereinbefore mentioned and set out, commenced an action in the district court of said Oklahoma county, Oklahoma Territory, to restrain the said plaintiff in error from causing execution to issue on said judgment against the said above described tract of land, to cause the said judgment to be vacated, annulled and set aside in so far as it affected in any .way the title to said land, and to have his own title thereto quieted and all clouds removed therefrom. Plaintiff in error answered by general denial, and further alleging that his judgment lien was prior and superior to any title acquired by said defendant in error from said Byrne by reason of said deed of conveyance.</p> <p>6. On the 17th day of October, 1891, the said cause of E. 0. Forsythe v. John J. Flanagan, et al., was called for trial and, after agreement of parties thereto, was, by the court, referred to L. B. Treadwell, Esq., an attorney of Oklahoma City, “to hear and determine the same on both questions of law and fact,” and the said referee, after several hearings and contradictory reports in said cause, and re-references thereof, finally decided the same in favor of the said H. O. Forsythe, defendant in error herein, and recommended that a judgment be entered in his favor for the relief demanded in his said petition; thereafter, and on January 30,1895, the court entered judgment in said cause, affirming the last report of the said referee, and the said John J. Flanagan, after his motion for a new trial had been duly filed, overruled, and the ruling of the iouit thereon excepted to, brings error for the purpose of reversing said judgment.</p>

Error from the District Court of Logan County; before Frank Dale, District Judge. STATEMENT OP THE CASE. Tbis action was 'brought by the plaintiff in error, who was also plaintiff below, to recover damages against the defendant railway company, alleged by him to have been sustained while driving across the track of the company in Noble county.

Error from the District Court of Lincoln County; before Frank Dale, District Judge. David M. Rhea, the defendant below, was indicted and tried for breaking and entering a building used, in part, as a United States post office and was convicted of sáid offense, and from the judgment of conviction appeals. The facts are stated in the opinion.

<p>Error from the District Court of Oklahoma County; before Henry 17. Scott, District Judge.</p> <p>STATEMENT OF FACTS.</p> <p>In the early part of the year 1893 the defendant in error, the board of education of the City of Oklahoma City, proposing- to construct school buildings and to purchase building sites therefor at an estimated cost of $70,000, submitted to the people of Oklahoma City a proposition for authority to issue bonds of the school district in that amount for that purpose. The proposition was carried at the election called for that purpose. The bonds remained unsold until January 8, 1894, at which time the contract sued on in this case was made. Upon that date, the plaintiff in error,.the plaintiff below, and the defendant, defendant in error here, entered into the contract sued on, which recites that the plaintiff corporation agreed to furnish to the defendant warming, ventilating and dry closet apparatus for thirty-two or more school rooms, divided into such school buildings as the board of education might choose, and to be erected during the year 1894. In setting out the plans and specifications of the apparatus, the price was fixed at so much per room, and apportionate payments were to be made during the progress of the work, and a final payment of twenty per cent, to be made when the work was completed.</p> <p>It was provided that in case the plaintiff was called to work upon the buildings or to inspect .them, and they were not in a condition for the work to be done, or if it was needlessly delayed, the defendant to have reasonable damages, and in case any sum was not paid when due it should draw interest and the defendant should pay the costs of collection.</p> <p>Afterward, on the same day, George Peck and A. W. Williamson, as individuals, and the plaintiff corporation, made another and separate contract with the defendant fo.r the purchase of the $70,000 of bonds.</p> <p>This contract provided that the defendant was to secure a record to be made in the district court that the bonds 'were valid, and was to have the bonds printed through the agency of the purchasers, the purchasers reserving the right to pay the whole sum and receive the entire $70,000 at any time and to be allowed a commission of four per cent out of the first bonds delivered.</p> <p>Thereafter an action was brought in the district court to restrain the board of education of the city of Oklahoma City from issuing $70,000 in bonds, upon the ground that when this sum was paid out of the existing indebtedness, the debts of the school district would be in excess of the four per cent, of the assessed valuation of the property of the preceding year, in violation of the act of congress of 1896, prohibiting such a contract. Upon the hearing of the injunction the district court found the last assessment to be $1,916,000; that four per cent, upon this sum was $76,640; that the existing indebtedness was $30,133.19, and that only $45,640 in bonds could be lawfully issued.</p> <p>Thereupon the defendant applied to the plaintiff for a modification of the contract, which was refused, the plaintiff declaring that it proposed to stand upon its rights under the original contract. Thereupon the parties entered upon the performance of both contracts, and the defendant proceeded to remit the bonds contracted for to the plaintiff, with directions to sell, and agreed to the four per cent, commission thereupon. Upon June 25, 1894, the defendant had remitted upon the total commission of four per cent, upon sales of bonds, the sum of $2,680.50. Contracts were let for the construction of two school houses to contain sixteen rooms and the discussion of location, plans, etc., for other buildings continued, and in August the site for a high school was selected by the board of education, and the plaintiff notified of the fact, and also of the fact that the military reservation consisting of 160 acres, adjacent to the city of Oklahoma City had, by an act of congress passed August 8, 1894, been donated to the city. (28 U. S. Statutes, 264.)</p> <p>By that act certain portions of the reservation became immediately subject to sale for the use of the school district, and upon the 24th of October, the plaintiff was notified by the defendant in error “to forthwith set said warming, ventilating and dry closet apparatus and put the same into said buildings as per your contract with said board of education.” Under the decree of the court the issuing of $70,000 worth of bonds was restrained, the isuing of $45,500 was authorized. The contract as originally made was not executed. Two school houses were constructed in lieu of four school houses containing thirty-two rooms, as originally contemplated, and provided for in the contract. These bonds to the amount of $45,500 had been placed in bank in Oklahoma City to become an indebtedness upon the city as they were issued to the purchasers. The last delivery of them, amounting to $11,000 was made upon November 17, 1894.</p> <p>Upon this state of facts a controversy arose between the plaintiff and defendant upon three points: (1) the payment of a claim of plaintiff on account of needless delay; (2) and that the defendant refused to pay the sums of $430 each claimed by the plaintiff to be due respectively for placing the apparatus agreed upon in the two buildings, which had been constructed; and (3) when the fact that the other sixteen rooms had not been constructed and no effort was made to construct them was called to the attention of the board of education, and tender of performance of the contract requested of the defendant that it took no action in the matter.</p> <p>On January 4, 1895, the plaintiff filed its suit, setting up five cases of action: First, a claim of $430, balance due for placing apparatus in one of the buildings constructed, known as the North building; second, a claim of $430, balance due for placing apparatus in the other building constructed, known as the South building; third, a claim for damages for breach of contract in failing and refusing to construct the other rooms provided for by the contract. The measure of damages was claimed to be the difference between tbe cost of performance and tbe contract price, which, by the evidence, is shown to be $3,000; fourth, a claim of $100, for damages occasioned by delay. This is an item arising in November and December, after the agreement to settle a similar item for $75 for the payment of which the money was placed in the bank, but after-wards the defendant refused to allow it to be paid over. When this refusal was made, this part of the petition was amended to cover both items, claimed to amount to $318; and, fifth, a claim for the expenses of collecting, provided for by the contract, and fixed at $500.</p> <p>A demurrer to the petition was overruled, and leave given to answer.</p> <p>March 11,1895, the defendant answered, pleading, first, that it was not indebted to plaintiff; second, that it had paid the claim; and third, that when the debts of the school district existing at the time of making the contract sued upon should be added to the debts the board of education was proposing to incur in the issue of bonds and construction of buildings the total debt would exceed the limit of four per cent of the assessed valuation.</p> <p>To this answer the plaintiff filed a general demurrer, directed particularly at the third defense, and which was as to the said third defense1 sustained.</p> <p>On September 23,1895, the defendant filed an amended answer, which sets up first, that it is not indebted to the plaintiff as alleged; second, that it has paid divers sums which have been accepted in satisfaction of all sums legally due; third, that adding what the board of education is -proposing to contract to expend what the school district already owes, the indebtedness would become excessive; and fourth, that the school board had elected to buy sites and build bouses to cost $70,000, and bad no money for that purpose, but tbe people bad voted bonds in that sum; that plaintiff knew this; that to induce tbe defendant to make tbe contract sued on, George Peck and A. W. Williamson and tbe plaintiff contracted to buy tbe bonds; and that aférwards tbe defendant was enjoined -from issuing tbe $70,000 of bonds, and permitted to issue only $45,64-0, and tbe plaintiff bad notice of tbe fact; that the plaintiff bad lithographed tbe $70,000 bonds which defendant, at suggestion of plaintiff, destroyed; that tbe plaintiff then bad printed the $45,500, according to tbe decree; that defendant notified plaintiff it could not furnish tbe $70,000 in bonds and could not erect tbe thirty-two rooms; that afterwards tbe defendant did furnish tbe $45,500 in bonds which plaintiff accepted and placed its apparatus in tbe rooms constructed at tbe contract price; that defendant vras prevented by tbe order of tbe court from issuing tbe $70,000 in bonds and constructing tbe thirty-two rooms; and that by accepting tbe $45,500. in bonds and furnishing tbe apparatus in tbe rooms constructed “tbe plaintiff consented to tbe new conditions as imposed by the order and decree of tbe court, waived its void supposed contract herein declared upon, and is estopped to claim tbe fulfillment of tbe said contract of purchase of said bonds or of said contract as to furnishing apparatus for thirty-two or more rooms in tbe said supposed contract mentioned.”</p> <p>To this amended answer tbe plaintiff filed á general demurrer, which was overruled.</p> <p>On December 18, 1895, tbe plaintiff replied, first, denying generally, and denying specifically that tbe defendant had paid tbe several sums in full satisfaction of tbe claims of plaintiff; and alleging that defendant had full authority to make the contract sued upon, and that the indebtedness thereby incurred, together with that existing was less than four per cent of the assessed valuation, and alleging that under the contract sued on defendant was to erect such number and character of buildings as it might choose, divided into not less than thirty-two rooms, that plaintiff is not a beneficial party to the bond contract, of which defendant had notice, and received and paid for no bonds or the purchase price thereof and was entitled to no profit and subject to no loss arising from the bond purchase; admitting that the lesser number of bonds were issued and delivered to George Peck and A. W. Williamson, denying that lithographing was ordered and paid for by plaintiff; denying that plaintiff was ever notified that defendant would not or could not construct the thirty-two school rooms contracted for; alleging that the contract extended to the last of the year 1894, and the payments were due only as the work was done, and long before the time expired the defendant had means and property with which to keep the terms of the contract without incurring further indebtedness, and was without any lawful excuse for refusing to keep the contract; denying that plaintiff consented to the alteration or recission of the contract sued on or waived any rights thereunder, or is in any manner estopped from claiming a fulfillment of its terms.</p> <p>December 26,1895, the parties stipulated in writing that a jury be waived and the cause tried by the court; that either party may submit to the court questions for special findings of fact, subject to the same rules upon which such questions might be submitted to a jury, and that the court should answer as a jury would be required to do, and that the special findings so made should have the same relation to the general conclusions of the court as a special to a general verdict. To this the court assented in writing.</p> <p>Upon, these pleadings and this stipulation the case went to trial before the court on January 6, 1890." After the evidence was submitted, the plaintiff, in accordance with the stipulation, requested findings, and the court found specially, as follows:</p> <p>• “Question 1. Has the defendant ever paid the balance of $430 claimed by plaintiff in the first cause of action, and if so, when and to whom? .Answer. Yes, by payment to Peck and Williamson, who are shown to have been joint purchasers with the plaintiff of the bonds issued by the defendant.</p> <p>“Q. 2. Has the defendant ever paid the balance of $430, claimed by the plaintiff in the second cause of action, and if so, when and to wrhom? A. Yes, by payment to Peck and Williamson, who are shown to have been joint purchasers with the plaintiff of the bonds issued by defendant.</p> <p>“Q. 3. Has the contract sued on ever been rescinded, altered or modified; if so, when, how and to what extent? A. This question is held to be incompetent, and immaterial under the issues in this case and in view of the evidence.</p> <p>“Q. 4. Has either party heretofore failed or refused to keep the terms of the contract sued on, or violated the terms of the contract; if so, which party and in what? A. Neither party has failed or refused to keep the terms of the contract. Defendant has executed its contract, except in so far as inhibited by the law.</p> <p>“Q. 5. What was the loss to plaintiff on account of the failure to carry out the terms of the contract sued on? A. This question is held to be incompetent.</p> <p>“Q. 6. What would have been the expense to the plaintiff to place, its apparatus in sixteen rooms had they been constructed according-to the contract, and what would it have been entitled to receive therefore? A. This question is held to be incompetent.</p> <p>“Q. 7. What was the assessed valuation of the propérty in the Oklahoma City school district for the year 1893? A. One million, eight hundred and fifty-five thousand, eight hundred and forty-nine dollars.</p> <p>“Q. 8. What was the indebtedness of said school district on January 8, 1894, before the contract sued on was made and how much was the indebtedness increased by the making of said contract? A. The indebtedness of said school district on January 8, 1894, was thirty-two thousand to thirty-three thousand dollars. The remaining clause of said question is held to be incompetent.</p> <p>“Q. 9. Upon any day when any sum became due under the contract sued on, adding such sum falling due to the existing indebtedness of the district, did it make such indebtedness exceed four per cent, of the assessed valuation of 1893 ? A. This question is held to be incompetent and immaterial.</p> <p>“Q. 10. Was the cost and character of the school houses into which the plaintiff was to place its apparatus agreed to or understood as a part of the contract; if so, what was to be the cost, character and number of such houses? A. As answer to the first clause of said question: Yes, the cost and character of the school houses were discussed by the plaintiff and defendant at the time of the making of said contract. The second clause of said question, as put, is immaterial, except as to the cost, which the evidence shows would have exceeded the legal limitation of indebtedness of said school district.</p> <p>“Q. 11. Are the two contracts, the one sued upon and the one sent up by the amended answer, between the same parties, or related to the same subject matter? A. Plaintiff and defendant were both parties to both of those contracts, and b'oth contracts must- be construed together in order to find the effect and meaning and proper interpretation of said contracts.</p> <p>“Q. 32. What interest had the plaintiff in the contract for the purchase of the bonds, and what part of the commission did it or was it to receive? A. The amount of interest that the plaintiff had in the contract for the purchase of the bonds and the commission it was to receive are held to be immaterial.”</p> <p>As a general conclusion the court found that the plaintiff was entitled to recover $75, which represents the sum the plaintiff, by compromise, agreed to accept on account of delay in the early part of the work.</p> <p>The plaintiff moved for judgment, for the reason that the special findings are inconsistent, with the general conclusion, a .motion authorized specially by the stipulation already mentioned. This motion was denied.</p> <p>The plaintiff then filed its motion ‘for a new trial, setting forth numerous grounds. This was denied.</p> <p>The court rendered judgment for $75 and costs in favor of the plaintiff. .</p>

<p>1. Answer — Amendment Of By Adding General Denial — When Such Amendment Does Not Change Defense Substantially. In an action for damages, an amendment of defendant’s answer by incorporating therein a general denial in addition to the matter formerly set up as a defense, does not change substantially such defense where the former answer did not contain a specific admission of the amount of damages claimed in plaintiff’s petition.</p> <p>2. Action Fob Damages — Burden Of Proof — Who Must Assume. In an action for damages, the burden of establishing the amount thereof sustained always rests upon the plaintiff unless the defendant specifically admits such amount in his answer and, where no such admission is contained in the answer, it is error for the trial court to require defendant to assume the burden of proof.</p> <p>(Syllabus by the Court.)</p>

Original Proceeding in Mandamus. Original proceeding in mandamus, to require the defendant, as auditor of the Territory, to audit the account of plaintiff for printing, and issue the warrant of the Territory therefor.

Error from the District Court of Oklahoma County; before Henry TV. Scott, District Judge. Action commenced in the probate court of Oklahoma county by the Luger Furniture Oo., a corporation, plain tiff in error, to recover of the defendant in error, J. G-. Street, the sum of $113.10, for goods, wares and merchandise sold and delivered.

<p> Error from the District Court of Logan Countyj before Frank Dale, District Judge. </p> <p>Action by John B. Farwell & Co., et al., against Smith-McCord Dry Goods Company, et al.</p>

Error from the District Court of Nolle County; before A. G. C. Bierer, District Judge. This was an action commenced in the justice court, by Elisha Penny against F. A. Richardson, S. E. Richardson, Joseph Murray and William Monroe, for the forcible entry and detention of the east eighty feet of lot 1, in block 28, in the city of Perry, Noble county, this Territory.

Error from the District Court of Canadian County; before John C. Tarsney, District Judge. STATEMENT of the case. On the 12th day of December, 1895, the grand jury of Canadian county presented Frank Swaggart, the defendant below, upon an indictment charging him with permitting a building to be used for the purpose of prostitution.

Error from the District Court of Logan County; before Frank Dale, District Judge. Action to recover upon two promissory notes. Judgment was had for defendant, from which the plaintiff! appeals.

<p> Error from the Probate Court of Blame County; before ■ Leander Martin, Probate Judge. </p> <p>Suit to recover money. Judgment for plaintiff for . $520.40 and costs from which defendant appeals.</p>

Error from the District Court of Logan County; before Frank, Dale, District Judge. Action brought by Hargis against Gorman to recover a commission alleged to be due upon a sale of real estate for Gorman. Verdict was given for plaintiff for $40, and judgment thereon rendered, with costs; from which the defendant appeals.

<p> Error from the District Court of Logan County; before Frank Dale, District Judge. </p> <p>On June 21st, 1886, W. W. S. Snoddy, and May M. Snoddy, his wife, executed and delivered a promissory note, in writing, of that date, with ten interest coupons attached thereto, to J. William Kelley, promising to pay three or five years after date, at the option of the maker, the sum of $2,000 with 8 per cent interest per annum, until default, payable semi-annually; and 12 per cent, interest thereon after default, payable semi-annually; and, to secure the payment of the same, executed and delivered to said Kelley, their mortgage upon certain real estate, situated in Barber county, Kansas.</p> <p>At the date of the making of said note, the plaintiff in error herein, Joseph McNeal, and one A. W. Little, constituted the membership of the banking firm of McNeal, Little & Thompson Banking company, the co-partnership doing a general banking business at Medicine Lodge, Kansas.</p> <p>On September 2, 1886, said McNeal, Little & Thompson Banking company, being then the owner or in possession and control of said promissory note, with authority to sell and dispose of the same,' did, by A. W. Little, one of the partners in said banking company, and in the name of said banking company, sell and dispose of said note and mortgage to the Gossard Investment company, of Kansas City, Missouri, and did, at the same time, make and deliver to said Gossard Investment company, the following instrument of writing, to-wit:—</p> <p>“For value received, we hereby guarantee the payment, within one year from due, a certain note for the principal sum of $2,000, made by W. W. S. Snoddy and Mary M. Snoddy, to J. William Kelley, and dated at Medicine Lodge, Kansas, June 21, 1886, and due five years from date; and we further guarantee the payment of the ten interest notes attached to the above described principal note and of the denomination of $80 each, when due. And waive demand and notice of protest on the same when due. Dated this 2nd day of September, 1886, signed McNeal, Little & Thompson Banking Co., Medicine Lodge, Kansas.”</p> <p>Upon the delivery, to-wit, of said note, mortgage and written guaranty, the said Gossard' Investment company paid- to the said banking company the sum of $1,900, upon a draft drawn by the plaintiff in error, in favor of said banking company; afterwards the Gossard Investment company, sold and delivered said note and mortgage to Aaron P. Kelley, of Boston, Mass., and guaranteed the payment thereof in writing; that eight of said interest coupons attached to said note were paid by the maker thereof when due, but that default was made in the payment of the two other of said coupons and upon the principal sum of said note when the same became due; that suit was brought thereon and for the foreclosure of said mortgage in the circuit court of the United States, for the district of Kansas, by said A. P. Kelley, and recovery was had therein against the makers of said note, for tlie sum of $2,552.92 and costs, and a decree ordering a sale of the premises described in the mortgage. Afterwards, defendant in error, A. H. Gossard, purchased said judgment of Kelley and took an assignment thereof, and, on April 25, 1892, the land was sold under the decree and purchased by Gossard for $1,100; and that amount was credited upon the judgment, leaving a balance of $1,734.40 upon said judgment unsatisfied, for which amount, with interest at 12 per cent, from April 25, 1893, the date of the sale of said premises, this action is brought upon said instrument of guaranty.</p>

Error from the Probate Court of Kingfisher County; before John J. Haymaker, Probate Judge. STATEMENT OE FACTS.

<p> Error from the District Court of Noble County; before A. G. C. Bierer, District Judge. </p>

Terror from the District Court of Paine County; before Frank Dale, District Judge. STATEMENT OF PACTS. This is an action upon an injunction bond, brought by plaintiff in error against defendants in error, for damages alleged to have been sustained by reason of the wrongful issuance and service of a temporary order of mandatory injunction.

<p>Error from the District Court• of Pmonee Countyj before A. C. C. Bierer, District Judge.</p>

<p> Error from the District Court of Logan Corn*•«; before Frank Dale, District Judge, </p>

<p> Error from the District Court of Noble County; before A. G. C. Bierer, District Judge. </p>

Error from the District Court of Logan County; before Frank Dale, District Judge. Injunction to restrain the collection of illegal taxes. Heard upon amended petition, answer and demurrer to the answer. STATEMENT OF THE CASE.

<p> Error from the District Court of “D” County; before John C. Tarsney, District Judge. </p> <p>Injunction to restrain the collection of illegal taxes.</p>

Original Proceeding in Mandamus. This action is brought by Eobert Porter, for himself and all other persons similarly situated, as an original proceeding in mandamus in this court, against the board of county commissioners of Kingfisher county, Oklahoma, and J. B. Ooekrill, county clerk of said county, to compel the said board of county commissioners to levy a suffic'ent tax to maintain separate schools for the colored children of said county, and to provide them with the…

Error from the Prolate Court of Logan County; before-J. C. Foster, Prolate Judge. Action by James H. Gill, indorsee, against the Guthrie-National bank, as drawee, upon a bill of exchange. From a judgment for plaintiff the defendant below brings error..

Error from the District Court of Kay County; before A. G. C. Bierer, District Judge. Action by Henry T. Bayless and Florence Bayless against Maude Brook to recover possession of certain personal property and for damages for its detention. Judgment for tbe plaintiffs. Defendant below brings error.

<p>Replevin — Promissory Notes. The maker of promissory notes is not the owner nor entitled to the immediate possession thereof unless the same have been paid or cancelled hy a decree of court, or for other reasons have become absolutely void and invalid as obligations in the hands of the payees or of third parties; and until such payment or decree, or for other reasons, such .notes have become absolutely void, and actions of replevin by the maker for the recovery of the possession thereof, will not lie.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Beaver County; before A. G. C. Bierer, District Judge. </p>

Error from the District Court of Garfield County; before Jno. L. McAtee, District Judge. Action by William Hays commenced in tbe probate court of Garfield county to recover damages against George W. Johnson, sheriff, and his bondsmen, for failure to levy an attachment.

Error from the District Court of Oklahoma Countyj before Henry W. Scott, District Judge. The United States prosecuted Carley Blanchard for perjury. He was convicted and sentenced to the penitentiary for a term of five, years, from which judgment this appeal is taken.

Error from the District Court of Logan County; before Frank Dale, District Judge. Suit in ejectment by Zeissness against Jay and others. Judgment was for plaintiff, from which defendant Jay appeals.

Error from the District Court of Payne Cotmty; before Frank Dale, District Judge. This action was brought by defendants in error, (plaintiffs below,) as partners, against plaintiff in error for a balance alleged to be due them from the said plaintiff in error upon a written contract, for the furnishing of certain material, and the performance of certain' labor in repairing and fitting up some of the rooms in the main college building of defendant below.

<p>1. Improvements on Homesteads. A homestead settler who makes improvements upon- a tract of government land and whose entry is afterwards cancelled, may remove the same after the land has been awarded to an adverse settler.</p> <p>2. Injunction — Properly Disallowed, When. Injunction should not be ‘ granted where the law affords an adequate remedy.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Woodward County; before Franlc Dale, District Judge.

<p> Error from the District Court of Oklahoma County; before James R. Keaton, District Judge. </p>

<p>1. Attachment — Against Partners. Wkere partnership property was attached and the petition and writ contained the names of two only of the three partners, and the petition was subsequently amended by adding such third partner as a defendant, but, in the meantime, other créditors had attached the property in actions against all three of the partners, the amendment of the petition in the first action related back to the time of the filing of the original petition therein, and gave to the proceedings therein the same effect as though all tnree of the paitners had been named as defendants in the original petition, and the attachments of other creditors levied between the filing of the original petition and of the amended petition did not become prior liens upon the partnership property.</p> <p>2. Partners — Service Upon. Where an action is against the members of a co-partnership for a partnership debt, and one or more of such partners shall have been served with process, but not all of them, the plaintiff may proceed with his action against the defendants served and if he recover in the action he may-have judgment entered against all the defendants jointly indebted, whether served with process or not, but such judgment cannot be enforced against the defendants not served, except against the co-partnership property.</p> <p>(Syllabus by the Court.)</p>

<p> Error from the District Court of Logan Countyj before Franlc Dale, District Judge. </p>

<p>1. Trial — Evidence—Motion to Withdraw Case From the Jury. A motion to withdraw a case from the jury and render judgment for the plaintiff upon all the evidence, presents to the court the same question as a motion to direct the verdict in favor of the moving party; and this should be done where the party on whom rests the burden of proof has wholly failed, to present any evidence to support his case, and there are no disputed facts for the jury to pass upon. But where there was evidence in the case making a dispute of fact, such a motion is held to have been properly overruled.</p> <p>2. Promissory Note — Not Innocent Purchaser. Where F. and G. owned a stallion in partnership, each having a one-half interest in the horse, and upon the sale thereof two notes were given G., in part payment for the horse, and the notes were transferred for value before maturity by G. to F., it is held, in an action thereon, that F. was not an innocent purchaser, and was chargeable with all of the notice of fraud in the transaction in which the note was given that G. possessed.</p> <p>3. Partnership — False Represen In lions. All the members of a partnership are bound by the false representations of one of the partners, made upon the sale of partnership property.</p> <p>4. Evidence — Immaterial—Admission of, No Error. The admission of immaterial evidence, even if incompetent, by reason of the disqualification of the witness, could not constitute reversible error where the case was in no way prejudiced thereby.</p> <p>5. Promissory Note — Declarations—Prior Holder. The declarations of a holder of a promissory note while he held the note, and before the transfer thereof, are admissible in evidence to prove the failure of the consideration of the note as against one who does not hold the paper as an innocent purchaser, or bona fide holder.</p> <p>6. Same — Failure of Consideration — Defense. In a defense of failure of consideration for two promissory notes which were given as part of the consideration for the sale of a horse which was falsely represented to be sound, and which died soon alter the sale, the defense, if it prevails, goes to the whole of the notes, and does not require any proof of value to warrant the jury in determining that the horse was worthless.</p> <p>7. Verdict — Erroneous. Where, upon the polling of the jury one of the jurors answers that he has consented to the verdict in order to prevent the hanging of the jury, but that he was not satisfied from the evidence that the thing required to be proven by the successful party has been established, and a motion is made that the court direct the jury to return to their room for further deliberation, it is erroneous to overrule such motion and accept the verdict.</p> <p>(Syllabus by the Court.)</p>

Error from the District Court of Payne County; before Frank Dale, District Judge. This action was brought by defendant in error, as plaintiff, against plaintiff in error, (defendant below,) for $2,000, with interest thereon at the rate of 7 per cent, per annum from September 20, 1896, alleged to be due her as the beneficiary in an insurance policy taken out in defendant corporation by Fred M. Furman, her husband, who died on the 22nd day of August, 1896.

<p> Error from the District Court of Payne County; before FranJo Dale, District Judge </p>

<p> Error from the District Court of Canadian County; before Jno. E. Burford, District Judge. </p> <p>This is an action of replevin to recover the possession of two head of horses, originally brought by plaintiff in error against defendant in error before a justice of the peace, subsequently appealed to the district court, where trial was had to the court without a jury, which resulted in judgment for defendant. Plaintiff brings error.</p> <p>Upon the request of plaintiff’s counsel, the district court made the following findings of fact and conclusions of law, to>-wit:</p> <p>“The court finds that on the 20th day of November, 1894, plaintiff was the owner of two horses described in the petition, and that they were placed in a corral on her farm on the night of the 20th of November, 1894, and during the night escaped and went upon the premises of the defendant, and on the morning of the 21st defendant found the two horses within Ms enclosure near his house and barn; that he took up the horses and placed them in his barn or corral, and the same day notified the plaintiff that he had possession of them; that plaintiff went to defendant’s house in the forenoon of the 21st, and asked the defendant if he had her horses, to which he answered that he had, and she then asked him what the damages was, to which he answered that the damages was not much, but he wanted three dollars for taking up the stock.</p> <p>“The plaintiff then proposed to leave it to a ■•ouple of neighbors to be selected by them, to arbitrate the amount of the damage, to which the defendant refused; after-wards and on the same day, and before noon, defendant went to plaintiff’s house and stated that he would agree to an arbitration by two persons to be seclected by them.;, that they selected the two persons to agree upon the amount that she should pay before the horses should be delivered. Shortly before noon the plaintiff and defendant, and the two persons selected went to his home, and an attempt was made to agree upon the amount of damage, but no agreement was reached, and the defendant finally agreed to accept two dollars and thirty-five cents- and release the hordes, and the plaintiff offered to pay one dollar and thirty-five cents for the release, which the defendant refused. The plaintiff left the horses in the-possession of the defendant, and after demand for them,, and refusal on his part, the defendant the next day, and within twenty-four hours from the time of the demand and refusal, went before B. F. Fisher, justice of the peace of El Reno City township, in Canadian county, O. T., and served a written notice uj>on the justice to appear-at his premises, which notice was served by the defendant on the justice of the peace at 11 o’clock on the 22nd day of November, and the justice served notice upon the plaintiff that he would appear upon the premises of the defendant at the time fixed in the notice to assess the damages, 'which notice was in conformity with the statutes; that before the time for assessing the damages-by the justice of the peace, under the notice, the plaintiff brought this-action in replevin for the property; that summpns and writ of replevin were issued on the 21st day of November, and the return of the officer showed that he received the writ at 6 o’clock p. m. on the 21st day of November, 1894.</p> <p>“The court further finds that the horses were of that class of animals which are, under the statutes, prohibited from running ’at large, and that there has' been no action by the people or board of county commissioners of Canadian county, or voters of the district where the plaintiff and defendant reside, permitting stock of that class to-run at large at any time, and that the defendant had the right to the possession of the horses at the time the suit was brought, and that the plaintiff has failed to show by a preponderance of the evidence that she was entitled to the possession of the stock at the time the suit was brought, and under the law the defendant is entitled to •recover a judgment for his costs.”</p> <p>The foregoing findings of fact and conclusions of law were never signed by the judge, and immediately upon the announcement of said findings and conclusions by the court, plaintiff’s counsel, in open court, took the following exceptions thereto:</p> <p>“The plaintiff at the time they were announced by the court, excepted to the findings and conclusions, for the reason that they were contrary to the evidence, indefinite, not supported by the evidence and not sufficiently specific as to the times of the various transactions, character of the corral, the amount of the damages, and the transactions between the parties with reference to arbitrations and agreements had, and as failing to find upon the question of damages, and also excepted to the conclusions of law, for the reason that they were not in accordance with the findings and the testimony in the case.”</p> <p>The other material facts are stated in the opinion.</p>

Error from the District Court of Cmadicm County; before John C. Tarsney, District Judge.

<p> Error from the District, Court of Kcty County; before A. G. G. Bierer, District Judge. </p>

<p> Error from the District Court of Greer County; before-James B. Keaton, District Judge. </p>

Error from the District Court of Cleveland County; before J. R. Keaton, District Judge. Action by John Merlde against R. J. Weeks to recover land. From a judgment for plaintiff, defendant brings error.

Original Proceeding in Habeas Corpus. ., Original application for writ of habeas corpus, by John Hutchison, alleging that he is illegally restrained of his liberty and confined in the county jail of Canadian county by John M. Canon, sheriff of said county, acting under and by virtue of an order of Justice John C. Tarsney.

Error from the District Court of Payne County; before Frank Dale, District Judge. Action of replevin. Judgment was had for plaintiffs, from which defendants appeal.

<p> Error from the District Court of Kay County, before A. G. C. Bierer, District Judge. </p>

<p> Upon Petition for Re-hearing, </p>