Volume 62 — Oklahoma Reports

<p>1. Indians — Allotment—Census Card as Evidence.</p> <p>Where the census card of an allottee does not show within itself, and neither does the certificate made by the proper officer attached thereto show, that it constitutes the complete “enrollment record,” it is not competent evidence for the purpose of proving the age of said allottee in an action involving a deed executed subsequent to the taking effect of Act Cong. May 27, 190S, ch. 199, sec. 3, 35 Stat. 312, 313, and the court did not err in excluding it.</p> <p>2. Infants — Actions—Burden of Proof.</p> <p>Where a grantor of land seeks to disaffirm his deed and recover the land on the ground that he was a minor when it was executed, he has the burden of proving minority as alleged.</p> <p>3. New Trial — Grounds—Newly Discovered ■ Evidence — Cumulative Evidence — Probable Result.</p> <p>Newly discovered evidence merely cumulative is not sufficient grounds for a new trial, and a new trial will not be granted upon the ground of newly discovered evidence unless it is made to affirmatively appear that the new evidence would be sufficient to probably change the judgment.</p> <p>(Syllabus by Brunson, C.)</p>

<p>1. Appeal and Error — Decisions Reviewable —Orders After Judgment.</p> <p>An appeal lies to this court from an order of the trial court that plaintiff take nothing by reason of a former judgment and that the payment of the same be permanently enjoined.</p> <p>2. New Trial — Nature of Petition — Form of Original Proceeding.</p> <p>A petition for new trial is not proper or allowable, where there has been no issue of fact raised by the pleadings or determined by the verdict of a jury or its legal equivalent upon a former trial in the same court.</p> <p>3. New Trial — “Issue of Fact.”</p> <p>An issue of fact which may be re-examined upon a new trial arises only upon a material allegation in the petition controverted by the answer, upon new matter in the answer controverted by the reply, or upon new matter in the reply considered as denied without-further pleading.</p> <p>4. Judgment — Validity—Jurisdiction.</p> <p>A judgment rendered in a cause in which defendant appears and pleads, and in which the petition brings before the trial court a subject-matter within the jurisdiction of the court, but states the plaintiff’s cause of action defectively, or not at all, all parties being within the jurisdiction of the court, is erroneous, but is not void.</p> <p>5. Judgment — Default — Requisites — Effect of Appearance.</p> <p>Defendant appeared in the cause, filed' a demurrer, and was present at the final hearing, and joined in submitting the cause to the court. Held, that the judgment rendered was not a judgment by default.</p> <p>(Syllabus by Burford, O.)</p>

Error from District Court, Osage County; R. H. Hudson, Judge. Action ' by ■ Charles Clark and others against the board of county commissioners of Osage county. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Stephens County; Cham Jones, Judge. Application by the Duncan Electric & Ice Company to A. B. Eerguson, county treasurer, and others, for correction of an assessment. From an adverse judgment of the district court on appeal from an order denying the application, plaintiff brings error.

<p>Error from County Court, Murray County; Harry W. Fielding, Judge.</p> <p>Action by the Fairbanks Company against the City of Sulphur. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Tillman County; T. P. Clay, Assigned Judge.</p> <p>Acetion by J. A. Alexander against B. B. Eoff and others. From a judgment for plaintiff, defendants appeal.</p>

<p>1. Guardian and Ward — Management of Estate — Contracts—Validity.</p> <p>In the absence of specific authorization of the county, court so to do, the guardian of a minor has no power to bind the real estate of his ward, or to create a lien thereon, by contract for labor and material for improvements made upon such estate.</p> <p>2. Mechanics’ Liens — Nature of Right — Statutory Provisions.</p> <p>The right to a lien for labor and material going into improvements placed upon real estate is statutory, and is dependent upon a binding contract with the owner of the real estate, or with some one lawfully contracting with him, for such labor and material. Section 3862, Rev. Laws 1910.</p> <p>B. Guardian and Ward — Sales Under Order of Court — Power of Court — Debts of Estate.</p> <p>Under section 6364, Rev. Laws 1910, the power of the county court to authorize a guardian to mortgage the rands of his wards is limited to debts “for which such estate or any part thereof is then legally liable to be ordered sold.”</p> <p>4. Same.</p> <p>An order of the county court purporting to authorize a guardian to mortgage the lands of his ward to secure debts that are not a lien against the estate, or for the payment of which the estate is not bound, is in excess of the power of the court and void, and a mortgage executed in pursuance thereof is a nullity.</p> <p>5. Judgment — Collateral Attack — Grounds— Invalidity of Judgment.</p> <p>Where it appears affirmatively from the face of the record that the court is without power to make the order that was made, such order is void and subject to collateral attack.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>1. Carriers — Carriage of Passengers — Actions — Parties.</p> <p>AY. made an interstate shipment of livestock by defendant’s line of railway, as a common carrier, with L. as caretaker of said stock, under a written contract by the provisions of which W. agreed to indemnify and hold harmless the said carrier for any damages it might be required to pay to any person accompanying said live stock. L. while acting as caretaker, sustained injury, and sued the carrier for damages. Held, that W. is not a necessary party to the action, and that it was not error for the court to deny the motion of defendant to make W. a party.</p> <p>2. Same — “Passengers”—Who Are.</p> <p>A person riding in the caboose of a freight train as a caretaker of live stock carried in such train is a “passenger,” and it is the duty of the defendant railroad company to exercise toward him the highest reasonable and practicable skill, c-aro, and diligence.</p> <p>3. Same — Risk Assumed.</p> <p>A passenger on a freight train assumes the ordinary risks of injury from jerks, jars and jolts incident to the movement of such trains, and, in order to warrant a recovery for an injury sustained from a jolt or jar, must show that such jolt or jar was unusual, extraordinary, or unnecessary.</p> <p>4. Same — Notice of Injury — Contract.</p> <p>AVhere an action is brought to recover damages for personal injury sustained by a caretaker of an interstate shipment of live stock under a written contract containing the provision that as a condition precedent to recovery of damages for personal injuries sustained by such caretaker, notice in writing of thp claim for damages on account of such injury must be given the carrier within 30 days of the date of the injury; such provision being reasonable and valid, the failure to give such notice Is a complete bar to such action.</p> <p>5. Same — Waiver of Conditions.</p> <p>The provision of said contract requiring notice is a condition precedent to the maintenance of such action, and must he substantially complied with by such caretaker before he can maintain a cause of action against the carrier, and the carrier cannot waive nor ignore such terms of the contract, since to do so -would violate the federal act regulating interstate commerce, and permit discrimination by the carrier.</p> <p>(Syllabus by Edwards, O.)</p>

Error from District Court, Okfuskee County; George C. Crump, Judge. Action by Mollie E. Thomas and others against Allen Cash and others, in which J. J. Klabzuba, Jake Zabloudil, J. O. Myers, and H. I. Grimes intervened. There was a judgment for plaintiffs, and in favor of the in-terveners, and defendant Gash brings error.

<p>Error from District Court, Pawnee County ; L. M. Poe, Judge.</p> <p>Action by M. W. Hudson and another, partners as Hudson & Smith, against the Commonwealth Cotton Oil Company, a corporation. Judgment for plaintiffs, and defendant ' brings error.</p>

Error from District Court, Murray County; F. B. Swank, Judge. Action by T. B. Frank against B. J. Jones and another. Judgment for defendants. From an order granting a second motion for new trial, defendants appeal.

<p>1. New Trial — Grounds—A’sence of Defendants.</p> <p>The single allegation that the defendants were not in court at the trial of the cause is not sufficient ground for a new trial.</p> <p>2. Appeal and Error — Record — Questions Presented for Review — Sufficiency of Evidence.</p> <p>This court is unable to determine whether or not a judgment is supported by the evidence when the evidence is not incorporated in the record.</p> <p>(Syllabus by Burford, C.)</p>

<p>Principal and Surety — Remedies of Creditor —Action Against Surety.</p> <p>By virtue of sections 969 and 4694, Bev. Laws 1910, an action may be maintained against a surety for hire on a bond, given pursuant to section 3881, without joining the principal.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. New Trial — Grounds—Requisites of Motion.</p> <p>The statutory enumeration of grounds for a new trial is in this jurisdiction exclusive; and any matter for which a new trial may be granted is waived if not embraced in the motion therefor.</p> <p>2. New Trial — Newly Discovered Evidence— Bight to.</p> <p>The rule regarding the granting of new trials on the ground of newly discovered evidence requires that the evidence comply with the following conditions: (1) It must be such as will probably change the result; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (51 it must not be merely cumulative to the former evidence; (6) it must not be to merely impeach the former evidence.</p> <p>3. New Trial — Motion for Continuance — Denial.</p> <p>Where the application for a new trial on the grounds of newly discovered evidence discloses that at the time of the trial the name of the witness and the purport and significance of the testimony which would have been given had he been present was known to the movant, and no application for a continuance asked, the same is insufficient to justify the court to sustain the same.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Muskogee County; Geo. C. Crump, Judge. In the matter of the estate of Amanda M. Combs, deceased. From a judgment admitting the will to probate, contestants appeal. Heard on motion to strike and to dismiss appeal.

Error from County Court, Choctaw County; W. T. Glenn, Judge. Action by E. L. Beecher against the First National Bank of Soper, a corporation. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Separate actions by W. M. Huntley and C. S. Huntley against the German-American Insurance Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appeal and Error — Review—Questions of Fact — Finding by Court.</p> <p>A jury ease having been tried to the court without a jury, a general finding by the court in favor of one of the parties will, upon review here, be given the same weight as the verdict of a jury.</p> <p>2. Same.</p> <p>The first paragraph of the syllabus in Freeman v. Eldridge, 26 Okla. 601, 110 Pac. 1057, is adopted herein.</p> <p>3. Appeal and Error — Disposition of Cause— Affirmance — Effect of Remittitur.</p> <p>In an action for damages, where it clearly appears that the court rendered judgment for an excessive amount and the amount of the excess can be ascertained from the record, the cause will not be reversed on account of such error, provided a remittitur for the excess is filed, and when filed the judgment may be affirmed for the correct amount.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Usurious Contracts.</p> <p>The syllabus in Midland Savings & Loan Company v. Henderson & Beats, 47 Okla. 693, 150 Pae. 868, L. R. A. 1916D, 745 is adopted as the law of this case.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Indians — Lands—Lease—Validity.</p> <p>Where a full-blood Choctaw allottee leases allotted lands to R. on November 28, 1905, for a term of five years, commencing with the date of the lease, and on August 12, 1908. leases the same lands to S. and others for a term of five years from the date of the lease, such second lease being subject to the existing lease for five years, which by its terms was to run until 1910, was unauthorized and void.</p> <p>2. Landlord and Tenant — Lease—Record— Necessity for Acknowledgment.</p> <p>Section 660, eh. 27, Mansfield’s Digest, Arlr., in force in Indian Territory before statehood, providing, “Deeds and instruments of writing for the conveyance of any real estate, or by which any real estate may be affected in law or equity, shall be proven or duly acknowledged in conformity with the provisions of this act before they or any of them shall be admitted to record,” required that a lease of land be acknowledged before such lease would be entitled to record, and any purported recording of an unacknowledged lease would be a nullity.</p> <p>3. Indians — Lands—Lease—Record,</p> <p>Under Act. Oong. June 28, 1898, ch. 517, 30 Stat. 507, known as the “Atoka Agreement,” requiring and providing that every lease which is not evidenced by writing, or which is not recorded in the clerk’s office of the United States court for the district in which the land is located, within three months from the date of its execution, shall b,e void, an unacknowledged lease of an Indian allotment, even though entered of record, would be a nullity and void.</p> <p>1. Ejectment — Right of Action — Title of Plaintiff.</p> <p>Plaintiff in ejectment must recover upon the strength of his own title, and not upon the weakness of that of his adversary.</p> <p>(Syllabus by Rummons, O.)</p>

Error from District Court, Adair County: John H. Pitchford, Judge. Action by William F. Langley, administrator of the estate of Mike G. Keys against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Muskogee County; W. H. Brown, Judge.</p> <p>Action by J. R. Dudding against the Board of County Commissioners of Muskogee County and others. Judgment for plaintiff, ana defendants bring error.</p>

<p>Error from District Court, Custer County; T. A. Edwards, Judge.</p> <p>Action by W. A. Abercrombie and another against Sarah Edwards and another. From a judgment sustaining a demurrer to the evidence, plaintiffs bring error.</p>

Error from District Court, Atoka County: J. H. Linebaugh, Judge. Proceedings by the Oklahoma State Bank, a corporation, against Atoka County, to recover taxes. An appeal to the district court from the action of the board of county commissioners being dismissed, Atoka County brings error.

<p>Error from District Court, Logan County; A. H. Huston, Judge.</p> <p>Action by Milo E. Ball against Mora E. Hall and another. Judgment for defendants, and plaintiff brings error.</p>

<p>1.Appeal and Error — Disposition of Cause— Proceedings on Remand.</p> <p>Where a cause is reversed and remanded by the Supreme Court, with directions to the trial court to “take such other and further proceedings in the matter as shall a coord with the Supreme Court opinion,” it stands in the court below the same as if no trial had been had, and the parties are entitled to proceed to a new trial of the case in accordance with the law of the case as laid down in the opinion of the Supreme Court.</p> <p>2. Master and Servant — Injuries to Servant Actions — Questions for Jury.</p> <p>Where an employe is furnished by the master with a defective tool and calls the attention of the master to the defective condition of such tool and continues at work under specific orders from the master to use such tool, the questions whether he assumed the risk or was guilty of contributory negligence in continuing to use the defective tool are for the jury.</p> <p>3. Same — Instructions.</p> <p>Instructions examined and held to be free from error.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Jackson County; Geo. C. Crump, Assigned Judge: Action by W. D. Clements' and another against the Jackson Oil & Gas Company and others. Prom a judgment sustaining .a demurrer to the petition, plaintiffs appeal.

<p>1. Mortgages — Foreclosure by 4ction — Demand for Deficiency Judgment.</p> <p>Suit to foreclose a real estate mortgage may be maintained without seeking personal judgment for the mortgage indebtedness.</p> <p>2. Jury — Right to Trial by Jury-Nature of Issue.</p> <p>In an action for foreclosure, where a defendant against whom no money judgment is sought by cross-petition sets up lack of understanding and incompetency in the maker of the note and mortgage, and upon that ground seeks the affirmative relief of cancellation of the note and mortgage, under the authority of the decision of this court in Mahs et al. v. Dunmyer, 21 Oída. 434, 96 Pac. 591, and of Hartsog v. Berry, 45 Okla. 277, 145 Pac. 328, such defendant is not entitled to a jury trial upon the issue of the lack of understanding of such maker.</p> <p>3. Appeal and Error — Mortgages — Foreclosure — Evidence—Review.</p> <p>In an equity case, where the judgment of the trial court is not against the weight of the evidence, it will be sustained. . Record examined and held, that the judgment of the lower court is sustained by the weight of the evidence, except as indicated.</p> <p>4. Infants — Judgment — Process — Effect of Defects on Oodefendants.</p> <p>Service of summons upon an infant cannot be waived; no one can appear for him in defense of an action prior to such service of summons; the defense of an infant must be made by guardian ad litem, who cannot be appointed' until after such service of summons ; and a judgment rendered against a minor defendant without service of summons and appointment of guardian ad litem is void; but, where minor defendants are not necessary parties, and the judgment is properly rendered as to all necessary parties, it will be sustained as to such parties against whom it is so properly rendered.</p> <p>5. Appeal and Error — Disposition of Cause —Reversal with Directions.</p> <p>Record examined, and held, that the judgment was improperly rendered as to certain minor defendants and in so far as money liability was adjudicated against adult defendants in foreclosure, but, the judgment being properly entered as against such adult defendants for foreclosure of mortgage, the judgment is reversed, and the cause remanded, with directions to the trial court to enter judgment in accordance with this opinion.</p> <p>(Syllabus by Johnson, C.)</p>

Error from District Court, Nowata County ; W. J. Campbell, Judge. Action by Eaura B. West, nee Pathkiller, and another, against B. L. Hart and another to quiet title to real estate. Judgment for plaintiffs, and defendants bring error.

<p>1. Pleading — Petition—Defects.</p> <p>Where a petition is attacked for the first time by objection at the trial to the introduction of any evidence thereunder, and there is not a total failure to allege some essential matter, and the allegations are simply incomplete and indefinite or conclusions of law, such objection to the introduction of evidence w H be overruled.</p> <p>2. Master and Servant — Contract of Employment — Action for Breach — Petition.</p> <p>In an action to recover damages for the breach of a contract for employment, necessary averments in the petition are: (1) Am allegation of the execution of the contract; (2) an allegation of its breach; (3) an allegation of performance or readiness to perform on the part of plaintiff; and, (4) an allegation of the damages sustained by the plaintiff.</p> <p>3. Same.</p> <p>Where a petition to recover damages for the breach of a contract for employment contains the necessary allegations to constitute a cause of action for damages for breach of contract, the fact that the damages claimed are denominated salary instead of damages does not render it fatally defective.</p> <p>4. Same — Measure of Damages.</p> <p>The measure of damages for the breach of a contract of employment by the employer is prima facie the sum stipulated to be paid for the services; and the burden of reducing the damages by proof that the servant has, or might with reasonable diligence have, obtained other remunerative employment of a like character after his discharge, rests on the employer.</p> <p>5. Same — Instructions.</p> <p>The defendant having neither pleaded nor proved that plaintiff had, or might with reasonable diligence have, secured other remunerative employment after his discharge, an instruction directing the jury that, if they found for the plaintiff, it would be their duty to award him the balance due under the terms of the contract, is not erroneous.</p> <p>6. Trial — Distractions—Sufficiency.'</p> <p>Instructions examined, and held free from reversible error.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Guardian and Ward — Liabilities on Bonds — Bond for Sale of Realty.</p> <p>The' sureties upon a guardian’s special bond, given as a prerequisite to the sale of real estate, are not liable for a misappropriation by the guardian of funds not ar.sing from the sale, of the real estate, in relation to whch their bond was given.</p> <p>2. Same — Special Bond.</p> <p>Bond examined, and held to be a special and not a general bond.</p> <p>3. Same — Order of Court — Conclusiveness.</p> <p>A valid Anal m-der of th° countv eourc, finding only the amount due frnn a guardiau to his ward,, is binding upon both the guardian and his bondsmen liable therefor as to such amount due, but it is not binding as to whether the obligation of a particular surety covers liability for a defalcation of such amount by the guardian'.'</p> <p>(Syllabus by Burford, C.)</p>

<p>Error from District Court, Hughes County ; John Caruthers, Judge.</p> <p>Action by B. H. McLaughlin against C. M. Means and others. Judgment for defendants, and plaintiff brings error.'</p>

Error from District Court. Caddo County; Frank Matthews, Assigned Judge. Action by Harry Komalty against the Cas-sidy-Southwest Commission Company and others. There was a judgment for defendants, and plaintiff .brings error.

Error from County Court, Wagoner County; J. C. Pinson, Judge. Action by W. R. Robinson against the Farmers’ & Merchants’ Bank of Coweta for debt for usurious interest paid. Judgment for defendant, and plaintiff brings error.

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Lila E. Lindsey and her husband, Lee Lindsey, against the Galbreath Gas C uni any for injunction. Judgment for plaintiffs, and defendant brings error.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. ' Action by Tony Herrod and another against Charles F. Runyan and another. There was a judgment for plaintiffs, and de fendants bring error.

<p>1. Conversion — What Constitutes.</p> <p>“Conversion” is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.</p> <p>2. Same — Actions—Evidence—Sufficiency.</p> <p>The evidence in the cause is examined, and fails to establish a conversion of personal property as alleged.</p> <p>(Syllabus by Campbell, C.)</p>

<p>Error from District Court, Comanche County; J. T. Johnson, Judge.</p> <p>Action by S. O. Crutcher against the defendant, Kelly Johnstone. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from County Court, Kiowa County; J. W. Mansell, Judge.</p> <p>Action by G. W. Bly against the St. Louis & San Francisco Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Harmless Error — Instructions.</p> <p>It is not misleading, nor prejudicial to the rights of the defendant, for the trial court, in the introductory part or paragraph of its instructions, to state to the jury that the plaintiff “claims” certain facts stated to be true.</p> <p>2. Contracts — Action—General Denial — Affirmative Defense.</p> <p>Under the code procedure a general denial is equivalent to a plea of nul tiel contract at common law, and an affirmative defense cannot be sustained under such a plea.</p> <p>3. Appeal and Error — Judgment — Affirmance.</p> <p>Where, upon examination of the entire record, the plaintiff in error fails to show that the trial court committed error prejudicial to his substantial rights, and the evidence is sufficient to support the judgment, the case-should be affirmed.</p> <p>(Syllabus by Robberts, C.)</p>

Error from County Court, Carter County; W. P Freeman, Judge. Action by W. P. Herber against the Frazier Brick Company, begun in justice court, in which the Ardmore National Bank was summoned as garnishee. On judgment for plaintiff the case was appealed to the county court, where judgment was again rendered for plaintiff, and defendant brings error.

<p>Courts — County Courts — Jurisdiction.</p> <p>Syllabus same as in Musser et ux. v. Baker, County Judge, 53 Okla. 782, 158 Pae. 442.</p> <p>(Syllabus by Higgins, C.)</p>

<p>Error from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by J. E. Hinchie against School District No. 26 of Okmulgee County. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Pontotoc County; I. M. King, Judge. Action by Alfred Summers against John I). Willoughby, begun in justice’s court, and appealed by defendant to the county court. The appeal was dismissed, and defendant brings error.

Error from County Court, Okmulgee County ; Mark L. Bozarth, Judge. Action by the United Iron Works Company, a corporation, against the Henryetta Coal & Mining Company, a corporation. There was a judgment for defendant, and plaintiff brings error.

<p>Error from District Court. Muskogee County; R. P. de Graffenried, Judge.</p> <p>Action by Wilbur M. Neely, Jr., and Charles Bowman, doing business as Neely & Bowman, against the Hennessey Oil & Gas Company and J. M. Foltz, and H. M. Foltz, doing business as Foltz Bros. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error from County Court. Garvin County; W. R. Wallace. Judge.</p> <p>Action by A. B. Harris against Pauls Valley Compress & Storage Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Craig County; Preston S.-Davis, Judge.. Action by the State, on the relation of C. Caldwell, as county- attorney of Craig county, and-others, against H. W. C. Shelton and the Southern Surety Company. Judgment for plaintiffs, and defendants bring error.

<p>Error from District Court, Osage County; R. H. Hudson, Judge.</p> <p>Action by H. 6. Ezell against the Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Verdict—Evidence.</p> <p>“The evidence in support of a verdict of the jury on appeal is regarded as true, and the evidence against it is deemed, for sufficient reasons, to have been rejected, and, where all the evidence supporting the verdict, taken together, together with all presumptions and deductions to which it is reasonably susceptible, is sufficient, then this court will not hold it should be set aside on the ground that other evidence, had it been accepted, would have justified a different verdict.” Johnson v. Walters, 59 Okla. 233, 158 Pac. 914.</p> <p>2. Appeal and Error — Presentation for Review — Requested Instructions — Briefs.</p> <p>“Where plaintiff in error complains of the refusal of the court to give requested instructions, and fails to set out in his brief in toti-dem verbis separately said requested instructions, he fails to comply with rule 25 of this court (38 Okla. x, 137 Pac. xi), and the same will not be considered.” Mackey v. Niekoll, 60 Okla. 12, 158 Pac. 593.</p> <p>3. Appeal and Error — Law of the Case — Decision of Former Appeal.</p> <p>“Where questions of law upon a state of facts have been settled upon a former appeal, and are based, in substance, upon the same evidence when again presented, the decision on {he former appeal is the Jaw of the case, and binding upon this court.” Insurance Oo. of North America v. Cochran, 59 Okla. 200, 159 Pac. 247.</p> <p>4. Trial — Verdict — Objections to Form — Waiver.</p> <p>Where, in a civil cause, a verdict is received in the absence of counsel, and the jury discharged, and it appears that counsel were absent of their own accord, and the record does not affirmatively show that counsel objected to the form of the verdict until a motion for a new trial was filed, the defect in the form of the verdict will he deemed to have been waived.</p> <p>(Syllabus by Hayson, C.)</p>

<p>Evidence — Documentary Evidence — Copy of Judgment.</p> <p>A copy of a judgment rendered in a court of another state, when attested by the clerk of said court, with the seal of the court annexed, and certificate of the judge of said court, as is required by sec. 905 of the Rev. Laws of the United States (U. S. Comp. St. 1.913, sec. 1519), is admissible as evidence in the courts of this state in a suit upon said judgment, even though the authentication of said judgment does not come up to the requirements of sec. 5098 of tlie Rev. Laws of Oklahoma 1910.</p> <p>(Syllabus by Freeman, O.)</p>

Error from Superior Court, Muskogee County; Hal C. Thurman, Judge. Action by M. 0. Haskell against the St. Louis & 'San Francisco Railroad Company, W. B. Biddle, and others, receivers, and the St. Louis, Iron Mountain & Southern Railway Company. There was judgment for plaintiff against the last named defendant and ¡for the first-pamied defendants, and plaintiff brings error.

<p>1. Appeal and Error — Presentation of Grounds of Review in Court Below— Necessity.</p> <p>When neither the record nor case-made show exceptions to alleged errors of the trial court, the same cannot be considered in this court.</p> <p>2. Same — Errors—Consideration.</p> <p>This court will not search the record to find alleged irregularities of the court, jury, or prevailing party; and, unless the party complaining calls this court’s special attention to such irregularities, the same cannot be considered.</p> <p>3. Same.</p> <p>In the absence of demurrer or motion for directed verdict, the sufficiency of the evidence to sustain the verdict of the jury in an action at law cannot be presented to this court on appeal, and this court is concluded by the verdict of the jury, unless other prejudicial error, to which exceptions were duly saved, appears in the case-made or record, or unless it appears that the jury awarded "excessive damages appearing to have been given under the influence of passion and prejudice.”</p> <p>(Syllabus by Stewart, C.)</p>

Error frbm District Court, Garvin County; F. B. Swank, Judge. Action by Dixie Smith and others against the Board of County Commissioners of Gar-vin County, Okla. Judgmeut for defendants, and plaintiffs bring error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by Redfield P. Richard, as administrator of the estate of Parthenia A. Richard, against the Southwestern 'Surety Insurance Company. Plaintiff was granted a new trial, and defendant brings error.

<p>Error from County Oourt, Garvin County; W. R. Wallace, Judge.</p> <p>Action by C. C. Ricks against J. R. Johnson. Judgment for defendant, and plaintiff brings error.</p>

<p>Landlord and Tenant — Distraint for Rent.</p> <p>The assignee of a promissory note given in payment of rent is without authority to dis-train for rent, unless he is also the assignee of the reversion.</p> <p>(Syllabus by Higgins, C.)</p>

<p>1. Indians — Lands—Restrictions on Alienation.</p> <p>Because of the provisions of section 4 of the act of Congress approved May 27, 1908 (35 Stat. 313, eh. 199), a judgment for alimony cannot be made a lien upon the allotted lands of a full-blood Creek Indian whose restrictions have not been removed. Nor can a court award any portion of such allotted lands to the plaintiff in a divorce action as alimony.</p> <p>2. Same.</p> <p>A judgment for alimony against a full-blood Creek Indian, whose restrictions have not been removed, cannot be made a lien upon potential rents and profits arising out of his allotted lands.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Insurance — Life Policy — Construction.</p> <p>The provision in an insurance policy.granting to the insured a grace of 30 days within which to pay all premiums except the first, and stipulating that said insurance shall remain in force during said time, held not to allow 30 days of grace after the maturity of a note executed by the insured to the company for a premium due at the date thereof, where the polióy provides that upon a failure to pay such premium note when due the policy will become null and void.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Action by Ella Wright, next friend of Herbert George, a minor, against the Chicago, Rock Island & Pacific Railway Company, for damages. There was judgment for plaintiff, and defendant brings error.

Error from District Court, Pontotoc County ; Tom D. McKeown, Judge. Action by J. W. Correll and others against Henry Kroth and others. Judgment for defendants, and plaintiffs bring error.

Error from County Court, Comanche County ; B. J. Bay, Judge. Action between Ella Lebrecht and Sol Le-brecht. There was a judgment for the latter, and the former appeals.

<p>1. Municipal Corporations — Public Contracts —Duty of Contractor.</p> <p>A contractor is charged with knowledge of the law under which a contract for paving streets of a city may be entered into, and cue who contracts to pave the streets of a city, in consideration of receiving assessments against abutting property of the streets paved, in payment of such paving, should, prior to entering into such contract, ascertain whether or not such assessments are enforceable, and upon failure to do so acts at his peril.</p> <p>2. Same.</p> <p>He who deals with a municipality does so with the knowledge of its and its agents’ powers, and if in contracting with a municipality one goes beyond the limitations imposed, he does so at his peril.</p> <p>3. Same — Liability of Municipality.</p> <p>"Where a contract is entered into ny a city for paving its streets, providing for the payment of such paving by assessments against tiie abutting property of the streets paved, and said contract also provides that the city shall be exempt from any direct liability on account of such paving, and upon completion and acceptance of such paving, the city delivers to the contractor the legally authorized and legally issued assessments and tax warrants for all of the paving done against the abutting property of streets paved, and a part of said assessments and tax warrants are against abutting property belonging to the United States, which assessments cannot be enforced, and which assessments are not paid, an action will not lie against said city to recover for a breach of said contract, the amount of such assessments as are against said property of the United States, alone upon the ground that such assessments against the property of the United States are not enforceable.</p> <p>4.Same — Petition.</p> <p>The petition in this case carefully considered, and held not to state a cause of action against the city of Enid.</p> <p>(Syllabus by Collier. C.)</p>

<p>Error from District Court, Pawnee County; L. M. Poe, Judge.</p> <p>Action by the First National Bank of Cleveland against J. B. Coates. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by the Germania National Bank, a corporation, against F. M. Duncan, Jr., and another, in which Grace Duncan intervened, seeking the discharge of an attachment. There was a judgment for intervenor, and plaintiff brings error.</p>

Error from District Court, Pawnee County ; L. M. Poe, Judge. Action by J. L. Rogers against the Milli-ken Oil Company and another. From a judgment for defendants on a demurrer to the evidence, plaintiff appeals.

<p>1. Carriers — Carriage of Live Stock — Actions — Conditions Precedent — Instructions.</p> <p>Compliance with the provisions of a contract for the carriage of live stock by a common carrier, requiring that notice of any claim for damages for loss or injury to or detention of said live stock, or delay in transportation thereof, shall be given to the carrier within one day after delivery of said live stock at its destination, and before such stock is removed from the place of destination and mingled with other stock, is a condition precedent to an action for the recovery of such damages.</p> <p>2. Same.</p> <p>An instruction, directing the jury, “If you find by a fair preponderance of the evidence that the defendant railway company had waived its right to be notified before such stock was removed or mingled with other riock by reason of their failure, after such notice, if given within one day, to offer to, or attempt to examine said live stock, then in that event the plaintiff would be entitled to recover damages in any sum proven as hereinafter charged,” held to be reversible error.</p> <p>(Syllabus by Rummons, 0.)</p>

Error from Superior Court, Tullía County M. A. Breckenridge, Judge. Action by Lorenzo Crier against John T. Kramer ana others to enjoin sale of land for nonpayment of sewer assessment. A demurrer was sustained to the petition, and plaintiff brings error.

Error from District Court, Hughes County; R. W. Higgins, Assigned Judge. Action by E. M. Scott against J. D. Boxley and Eranklin Chaney. Judgment in favor of the plaintiff, E. M. Scott, and against the defendant, J. D. Boxley, and against the defendant, Eranklin Chaney, in part. Defendant Boxley brings error.

Error from County , Court, Pittsburg County; P. B. Hammond, Judge. Action by W. H. Savage, M. T. Savage, and T. IT. Savage, copartners doing business as W. IT. Savage and Sons, against the Tol-lison Coal Company, begun in justice court and appealed to the county court. A. C. Brown and another, sureties on defendant’s appeal bond, moved to modify the judgment against defendant, and, their motion being denied, bring error.

<p>1. Jury — Jury Trial — Right to.</p> <p>Issues of fact arising in an action for the recovery of money only must be tried to a jury, unless a jury trial is waived or a reference ordered as provided by statute.</p> <p>2. Appeal and Error — Petition in Error-Assignments of Error.</p> <p>To be availing the petition in error should, in an orderly and specific manner, clearly point out the error or errors complained of and sought to be reviewed, and errors occurring during the trial cannot be considered by the Supreme Court unless the ruling of the trial court on the motion for a new trial is assigned as error in the petition in error.</p> <p>3. Appeal and Error — Case-Made—Extension of Time.</p> <p>The recital in a case-made, duty certified to by the judge, that an order was made extending the time in which to prepare and serve a case, where the substance of the order is contained in the case-made, is sufficient. and motion to dismiss because it does not affirmatively appear in the case-made that such order of extension has been recorded upon the journal will be overruled.</p> <p>(Syllabus by Davis, C.)</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by M. Kaufman and others against the Western Union Telegraph Company. There was a judgment for plaintiffs, and defendant brings error.

<p>Error from District Court, Muskogee County; R. P. de Graffenried, Judge.</p> <p>Action by Samuel B. Coley against the Pacific Mutual Life Insurance Company of California. There was a judgment for plaintiff, and defendant brings error.</p>

Error from .District Court, Seminole County ; George C. Crump, Assigned Judge. Action by the Boardman Company against T. 8. Cobb. From a judgment sustaining defendant’s motion to vacate and strike from the files an abstract of judgment, iflaintiff brings error.

Error from District Court, Bryan County; . Jesse M. Hatchett, Judge. Action by O. R. Nicholson against C. F. Bynum, in which the State National Bank intervened. There was a judgment for inter-vener, and plaintiff brings error.

<p>1. Release — Settlement—Cancellation.</p> <p>A written contract compromising a claim for damages between the claim agent of the railway company and the person injured, if honestly entered into cannot be avoided for frivolous reasons; but, where such contract has been obtained by unfair means and fraudulent representations on the part of the claim agent of the railway company and for a consideration incommensurate with the injuries done, the same may be set aside.</p> <p>2. Fraud — Misrepresentations — “Fraudulent Representation.”</p> <p>The gist óf a fraudulent representation is the producing of a false impression upon the mind of the other party, and if this result is actually and intentionally accomplished, the means of accomplishing it are immaterial.</p> <p>3. Release — Validity—Misrepresentations.</p> <p>Where a railway company sets up by way of defense to an action for personal injuries to the plaintiff, a married woman, a written contract of settlement, which contract signed by herself and husband, purports, for a nominal consideration, to be a settlement in full for damages received by the plaintiff, also-by her husband :and minor child, and the plaintiff alleges by way of reply and proves that such contract was obtained by fraudulent representations of the claim agent of the railway company, relied upon by the plaintiff at the time she signed the agreement, the plaintiff, notwithstanding the signing of such agreement, may recover in an action against the railway company such damages as she may prove.</p> <p>4. Trial — Reception; of Evidence — Agency— Husband.</p> <p>When it is necessary to prove that the husband is the agent of the wife in order to render him a competent witness, as a preliminary question, he is competent to testify that he acted as her agent; and if after so testifying the court permits him to give testimony concerning matters in wl$ich he acted as the agent of his wife, such action of the trial court will not be disturbed on appeal to this court.</p> <p>5. Husband and Wife — Agency—Evidence.</p> <p>When it is shown that the husband is acting as agent of his wife in respect to any transaction concerning which he is called upon to testify, and his testimony is otherwise admissible, the fact that the transaction occurred in the presence of the wife does not prevent him from testifying as to any transaction in which be was acting as her agent, and the mere fact of her presence at the time does not disprove his agency.</p> <p>6. Appeal and Error — Review—Verdict.</p> <p>A verdict of the jury will not be disturbed by this court because of incompetent testimony permitted to go before the jury, unless upon an examination of the whole record and the testimony this court is of the opinion that such testimony might have influenced the verdict of the jury, and that the jury would not have reached the same verdict irrespective of such incompetent testimony.</p> <p>7. Trial — Instructions—Weight of Evidence —Release.</p> <p>Special instruction requested by defendant examined, and held, that the court did not commit error in refusing to give such instruction.</p> <p>8. Release — Fraud—Evidence.</p> <p>' Evidence in the instant case examined, and it is held, that the same sustains the verdict of the jury, and that there is no prejudicial error in the record.</p> <p>(Syllabus by Stewart, C.)</p>

Error from District Court, Washington County; R. H. Hudson, Judge. Action by Alice B. Jordan against Ray Parks and others and John B.. Jordan. There was a judgment for plaintiff, and the last-named defendant brings error.

Error from District Court, Nowata County; W. J. Campbell, Judge. Action by the board of education of the city of Nowata against J. W. McCracken, assessor of Nowata county, and others. There was a judgment for defendants, and plaintiff brings error.

Error from County Court, Jefferson County; Ben F. Saye, Judge. Action by the Waurika National Bank against F. P. Dunkin. There was judgment for the plaintiff, and defendant brings error.

Error from District Court, Muskogee County; It. P. de Graffenreid, Judge. Action by Emmett Brewer, by his next friend, Alice Goodman, against Jackson Per-ryman and others. From a judgment for defendants, plaintiff appeals.

<p>1. Officers — “Public Officer” — Employment Under Contract.</p> <p>A public officer is one whose duties are fixed by law and who in the discharge of the same knows no guide but established laws. Employment arising out of a contract whereby the person employed acts under the direction or control of others, and which employment depends for its duration and extent upon such a- contract, is not an office.</p> <p>2. Municipal Corporations — Board of Education — Superintendent of Schools — Term— “Employe” — “Officer.”</p> <p>A city superintendent of schools under the laws of the state of Oklahoma,- is not an “officer,” but an “employe” of the board of education of the city. The board of education of a city is a body corporate, and a change in the personnel of the membership does not affect the entity of the corporate existence. Where there is nothing in the statutes limiting the authority of outgoing members, they may, as a board, before their term of office expires, contract for superintendent of schools under their control for the ensuing year, though the services contracted for may extend beyond the expiration of their terms of office and such contracts will be binding upon the board of education, notwithstanding a change in the personnel thereof, to the same extent as if the new members as such board had made the contract and no further.</p> <p>3. Contracts — Construction—Existing Law.</p> <p>The existing law of the state is implied and presumed to be a part of every contract, and such contracts are made with reference to the laws governing the same in force at the time,, notwithstanding the express terms therein apparently to the contrary.</p> <p>4. Municipal Corporations — Board of Education — Authority—Contract.</p> <p>The board of education of a city has no power to waive or contract away any right or authority concerning its duties fixed by the statutes in force at the time of making any such contract, it being the rule that such board is acting for the public, and the rights of the public as defined by law cannot be con traded away. A right given by duly enacted law to the board to discharge a city superintendent at pleasure is meant to protect the school, and cannot be waived or contracted away by the board.</p> <p>5. Same — Superintendent of Schools — Removal — Salary.</p> <p>Under the law as it existed in this state prior to January 1, 1914, the board of education of a city had the right to employ a superintendent of city schools and remove such superintendent at the pleasure of the board. Such action on the part of the board cannot bo inquired into by the courts, but is final and conclusive, and any superintendent so employed is entitled to compensation only up to the time that he has notice that it is the pleasure of the board to dispense with his services.</p> <p>6. Same.</p> <p>In such a case of discharge of a city supei-intendent of schools by a city board of education, the superintendent is entitled to compensation from the time of entering upon his duties to the date he is notified of his discharge.</p> <p>7. Same.</p> <p>.Such superintendent is entitled to pay from the time of entering upon his duties under his contract to the date of notice of discharge, notwithstanding the contract made was consummated between him and the outgoing-board for services for the ensuing, year that extended beyond the term of office of the outgoing members.</p> <p>8. Same.</p> <p>Facts in this case examined, and found that the plaintiff is entitled to pay for services as superintendent of city schools under his contract with the outgoing board from July 1, 1913, the date of beginning of his duties, to July 7, 1913, the date of his receiving due notice of discharge, hoth dates included, though such time extended beyond the term of office of members of the outgoing board.</p> <p>(Syllabus by Stewart, C.)</p>

Error from County Court, Rogers County; Walter W. Shaw, Judge (Frank Ertell, Special Judge, on motion for new trial). Action by the Bank of Chelsea against School District No. 1, Rogers County, a corporation, and others. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Hughes County; Geo. C. Crump, Judge. Action for injunction by J. E. Whitehead against B. W. Mackey, county treasurer, etc. Judgment that plaintiff pay into clerk of court certain taxes, with Ínteres’', by certain date; whereupon peremptory mandamus was ordered to issue to treasurer to issue receipts in full and redemption certificates, and, in event sums were not paid, temporary injunction dissolved, and plaintiff appeals.

<p>Compromise and Settlement — Validity..</p> <p>An agrément to give a credit upon a note, fairly made, in good faith, without mistake, undue influence, misrepresentation, or fraud, based upon the settlement of a disputed claim, which might have been the subject of litigation, is valid and enforceable.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Appeal and Error — Parties—Ground for Dismissal.</p> <p>Where a foreclosure sale is made and confirmed, and subsequently such order of confirmation is set aside, the purchaser at such sale may appeal from the making of such order to this court, as such order affects the substantial rights of the purchaser, upon a summary application in the action after judgment, and is a final order; and a motion to dismiss said appeal will not lie upon the ground that such order is not an appealable order.</p> <p>2. Mortgages — Foreclosure Sale» — Confirmation — Vacation—Motion. ’</p> <p>Where, ¿t a term subsequent to the term at which an order of confirmation is made, it is moved to set aside such order, under section 5267, Rev. Laws 1910, such motion must conform strictly to the grounds stated in such statute to entitle movant to the relief sought, and such motion must state facts — not conclusions of law — showing movant entitled to the relief prayed for.</p> <p>3. Judicial Sales — Motion to Set Aside.</p> <p>In a motion to set aside a judicial sale, the purchaser at such sale is a necessary party.</p> <p>4. Same.</p> <p>Motion to set aside the order confirming the sale in the instant case carefully examined, and held not to state facts sufficient to confer jurisdiction upon the court to vacate such sale.</p> <p>(Syllabus by Collier, C.),</p>

Error from County Court, Delaware County; H. L. Marshall, Judge. Action between G. W. Morris and Challes Davis and another. From a judgment for the latter, the former appeals.

<p>Error from Oounty Court, Comanche County; H. N. Whalin, Judge.</p> <p>Action by the Home State Bank against John E. Hourigan for damages for conversion of mortgaged property. Judgment for plaintiff, and defendant brings error.</p>

<p>Appeal and Error — Review — Sufficiency of Evidence.</p> <p>Where a demurrer is not interposed to the evidence, or a directed verdict requested, the insufficiency of the evidence to sustain the verdict cannot be reviewed by this court.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by R. E. Cook against the Oklahoma Auto Supply Company, a corporation. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Bills and Notes — Actions—Liability.</p> <p>One who with another signs a joint and several negotiable promissory note, which on its face shows each of the makers to be principals, cannot as against a holder in due course show that he is a surety, but he is bound as a principal.</p> <p>2. Same — Holder in Due Course.</p> <p>A “holder in due course,” as defined by section 4102, Rev.’ Laws 1910, is entitled to recover the full amount due on a negotiable promissory note held by him against all parties liable theieon notwithstanding any defect or infirmity in the title of the payee from whom he received the note duly indorsed. )</p> <p>3. Appeal and Error — Bills and Notes— Holders in Due Course — Burden of Proof.</p> <p>When it is shown that the title of a person negotiating a negotiable promissory note is defective, the burden is on the holder of proving that he or some one under whom he claims acquired title as a holder in due course; but, when there is evidence reasonably showing such a state of facts, this court is bound by the verdict of the jury, and such verdict will not be disturbed.</p> <p>4. Bills and Notes — Possession—Presumptions.</p> <p>Where a negotiable promissory note has passed into the possession of others than the original makers thereof, a valid and intentional delivery is presumed until the contrary is shown; but, if such note is in the hands of a holder in due course, a valid delivery by all. parties prior to such holder in due course is conclusively presumed, and in such case evidence cannot be heard to disprove a valid and intentional delivery.</p> <p>5. Same — Payment—Surrender.</p> <p>Where a negotiable piomissory note is surrendered as paid to one of two joint and several makers thereof, and afterwards the same is returned by such maker to the payee, there being nothing connected with the note itself to show that same has been paid or to suggest any defect in the title, a’nd such note before maturity is for value transferred to a holder in due- course, such holder can recover from the makers the amount due thereon, notwithstanding one of the makers did not authorize the redelivery of the note and was not aware of the act of the other maker in redelivering the same to the payee, and notwithstanding that, while the note on its face showed him to be a principal, he was in fact a surety.</p> <p>(Syllabus by Stewart, C.)</p>

Error from District Court, Okmulgee County ; Wade S. Stanfield, Judge. Action by G. W. Lavery and others against ¡•the Mid Continent Oil Development Company, ¡a corporation. Judgment for defendant, and •¿plaintiffs bring error.

Error from District Court, Oklahoma County; George W. Clark, Judge- Action by F.-E. Anderson, M. D. Anderson, B. Clayton, and W. L. Clayton, partners doing business as Anderson, Clayton & Co., against George D. Lockhart, county weigher, an(l another. There was a judgment for plaintiffs, and defendants bring error.

Error from County Court, Pawnee County; G. E. Merritt, Judge. Action by David Connor against the Pulaski Oil Company, a corporation, in which default judgment was rendered for plaintiff. Its motion to vacate the default being overruled, defendant brings error.

<p>Error from District Court, Alfalfa County Jas. B. Cullison, Judge.</p> <p>Action by M. 0. Green -against State Mutual Insurance Company. .-Judgment for the plaintiff, and defendant brings error.</p>

<p>Justices of the Peace — Appeal—Jurisdiction —Amount Involved.</p> <p>An appeal cannot be taken from the final judgment of a justice of the peace where the amount involved is less than $20.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from District Court, Oklahoma County ; Geo. W. Clark, Judge.</p> <p>Action by Charles W Pahlka against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Injunction — Right to Remedy.</p> <p>It is not for every threatened invasion of the legal rights of a party that a court of equity will intervene with the preventive remedy of injunction, even in cases where that remedy would be efficient. A party appealing to a court of equity must make a case which commends itself to the conscience of the chancellor.</p> <p>2. Municipal Corporations — Street Improvements — Assessments—Injunction.</p> <p>A municipality having acquired jurisdiction by the passage of the proper preliminary resolution declaring the necessity of a street improvement, and no sufficient protest or objection thereto having been filed, a property owner who stands idly by while such street improvement is being prosecuted, with full knowledge that large expenditures are being made for such improvement which will benefit his property, and that a portion of the cost thereof will be assessed against his property and who fails to appear at the proper time and present his 'objections before the proper tribunal, will not, long after the work is completed, be afforded relief in equity against assessments levied against the property benefited, to pay for such work.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Oil and Gas — Lease—Construction.</p> <p>The contract or lease examined, and held to he an ordinary oil and gas lease contract, and subject to the same rules oí construction. It rests no right in the lessee to the real estate, nor any interest therein or right thereto, save to explore for oil, etc.</p> <p>2. Appeal and Error — Review—Findings.</p> <p>The court found the lessee and his assignee had forfeited their rights under the contract, and this evidence supports this finding, so we cannot disturb the same here.</p> <p>3. Contracts — Construction — Construction by Parties.</p> <p>The acts of the parties to a contract, when the terms of a contract are in doubt, may be considered with the view of construing the same; and, applying this rule here, the acts and conduct of Kelly, held to indicate an abandonment of the contract or lease.</p> <p>(Syllabus by Hoolser, C.)</p>

<p>Error from District Court, Blaine County ; Will Linn, Assigned Judge.</p> <p>Action by the Baldwin Piano Company against Lee Akin, Sheriff. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Judgment — Validity—Jurisdiction.</p> <p>The first fundamental requisite to the validity of a judgment is that it should have been rendered by a court having jurisdiction, for without jurisdiction the courts can do nothing, and a judgment rendered without jurisdiction is a mere nullity. The jurisdic-diction required is of three sorts; (1) Jurisdiction of the parties; (2) jurisdiction of the general subject matter; (3) jurisdiction of the particular matter which the judgment professes to decide.</p> <p>3. Same.</p> <p>A judgment, which is entirely outside of the issues in the case and upon a matter not submitted to the court for its determination, is a nullity, and may be vacated and set aside at any time on motion of a party, or any person affected thereby. And any collateral or subsequent proceeding dependent upon the validity of such judgment may, in like manner, be vacated upon proper motion by any person affected thereby.</p> <p>3. Same — Conformity to Issues — Foreclosure — Personal Judgment.</p> <p>S., a defendant in a foreclosure suit, filed a cross-petition, alleging that H. M. C., a co-defendant, was indebted to it upon notes and a real estate mortgage; that N. A. 0. had or claimed some interest in the real estate junior and inferior to the claim of S., and praying that the interest of N. A. O. be adjudged inferior. N. A. C. made no appearance. The court thereupon ■ rendered judgment, decreeing the interest of N. A. C. to be junior to the interest of S., and also rendered a personal judgment for the amount of the indebtedness against N. A. C. Held, that that part of the judgment fixing a personal liability upon N. A. C. is outside of the particular jurisdiction of the court, and upon a matter not submitted to the ■ court for determination and is a nullity.</p> <p>(Syllabus by Edwards, C.)</p>

Error from District Court, Harper County; W. 0. Crow, Judge. Action by C. J. Pettigrew against J. W. Harmon and others. There was judgment for defendants, and motion for new trial being denied, plaintiff brings error.

Error from District Court, Stephens County ; Cham Jones, Judge. Action by the New York Life Insurance Company, a corporation, against the Town of Comanche, Okla., a municipal corporation, and others. There was a judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Ottawa County; Preston S. Davis, Judge.</p> <p>Action by A. D. Clifton against W. B. Schmueker. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Okmulgee County ; Mark L. Bozarth, Judge. Action by the Conqueror Trust Company against J. M. Simmon, doing business as the Simmon Mercantile Company. Judgment in favor of defendant and against plaintiff, and plaintiff brings error.

Error from District Court, Choctaw County ; C. E. Dudley, Judge. Action by the. Board of Education of the City of Hugo, successor to the School District of the Town of Hugo. Indian Territory, against R. O. Langworthy and National Surety Company. Judgment for plaintiff, and defendant National Surety Company brings error.

<p>1. Appeal —Law of LaEiror — Subsequent Appeals</p> <p>Where, in a second v,_ o£ the same cause to this cosquen t appeal tions are raised which have bee...,/ quey_ upon the former appeals, the former cie^.i ions of this court in the same case are the law of the case, in so far as they are applicable.</p> <p>2. Estoppel — “Equitable Estoppel” — Requisites — Concealment—Reliance.</p> <p>The essential elements of an “equitable es-toppel” are: First, there must be a false representation or concealment of facts. Second, it must have been made with knowledge, actual or constructive, of the real facts. Third, the party to whom it was made must have been without knowledge, or the means of knowledge, of the real facts. Fourth, it must have been made with the intention that' it should be acted upon. Fifth, the party to whom it was made must have reded on or acted upon it to ids prejudice. The representation or concealment, mentioned, may arise from silence of a party under imperative duty to speak; and the intention that the representation or concealment be acted upon maybe inferred from circumstances. Case of Brusha et ux. v. Board of Education of Oklahoma City, 41 Okla. 595, 139 Pae. 298, L. R. A. 19160, 233, distinguished.</p> <p>3. Equity — Laches—Application.</p> <p>When an action Is not barred by the statute of limitations, the doctrine of laches does not apply where plaintiff does not ask for equitable relief, but only seeks to enforce a plain legal title in a court of law, except in so far as such laches may constitute an element of estoppel.</p> <p>4. Trusts — “Resulting Trust” — Requisites.</p> <p>A resulting trust arises by operation of law upon the intent of the parties, where the legal estate in property is disposed of, conveyed, or transferred, but the intent appears or is inferred from the terms of the disposition, or from accompanying facts and circumstances, that, the beneficial interest is not to go to or be enjoyed with the legal title; -but the law will not operate upon an intent which involves a fraud upon a third person, or an illegality; and, where a disposition, conveyance, or transfer of real estate is made by general warranty deed, purporting to convey the entire title, it being the intention of the grantor thereby to create a secret trust, with the ■beneficial interest in himself, for the purpose of defrauding a third party by the appearance of record that the entire title is owned by the grantee, a resulting trust will not arise from such conveyance and intent, and the law will not disturb the legal title, hut will leave the parties in' the position in which it finds them; and the grantee may set up such fraudulent intent in avoidance ot an attempt by grantor to enforce such se"" trust. „,-ed Evidence</p> <p>5. New Trial — Newly. .Alii General.</p> <p>—Motion—Reft, as to requisites of showing o* ¿il>n for new trial on the ground j„^^ivly discovered evidence, stated; and lield, that motion for new trial in this case meets the rule, and new trial should have been granted.</p> <p>(Syllabus by Johnson, C.)</p>

<p>Error from County Court, Bryan County; J. L. Rappolee. Judge.</p> <p>Action by A. J. Schenck against R. F. Grata, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal and Error — Supersedeas Bond — Judgment — Statute.</p> <p>In a case appealed to the Supreme Court where supersedeas bond has been given staying execution, and the judgment here is against the appellant, this court, by virtue of the provisions of chapter 249, Sess. Laws 1915, will enter judgment against the sureties on such bond.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Error from District Court, Muskogee County ; R. P. De Qraffenreid, Judge.</p> <p>Action by Rolert Toomer, revived after his death in the name of John Benjamin Toomer, administrator, against the Midland Valley Railroad Company Judgment for plaintiff, and defendant brinjs error.</p>

<p>1. Judgment — Conclusiveness—Matters Concluded.</p> <p>A fact or question which was actually and directly in issue in a former suit, and was there judicially passed upon and determined by a court of competent jurisdiction, is conclusively settled by the judgment therein, so far as concerns the parties to that action, and persons in privity with them, and cannot be again litigated in any future action between such parties or privies, in the same court, or in any other court of concurrent jurisdiction, upon the same or a different cause of action.</p> <p>2. Bills and Notes — Defenses—Failure of Consideration.</p> <p>A partial failure of consideration is a proper defense pro tanto to a suit on a promissory note, except as against an innocent holder in due course of a note which is negotiable.</p> <p>3. Mortgages — Consideration—Partial Failure.</p> <p>Where an insurance company makes a loan of money, taking a note therefor and a mortgage to secure the same, and retains a part of the loan as payment of a premium on an insurance policy issued by the mortgagee as collateral security for the loan, and it is afterwards judicially determined that such insurance policy and the agreement to pay such premium are contrary to public policy and absolutely void, and such retained money is not paid to. or received by the maker of such note and mortgage, but is kept and enjoyed exclusively by the mortgagee, the maker of the note and mortgage receiving no benefit therefrom, such facts constitute a partial failure of the consideration of the note and mortgage to the extent of such retained ‘moneys.</p> <p>(Syllabus by Johnson, G.)</p>

Error from Superior Court, Pottawatomie County. Action by the Security State Bank, a corporation, against Roy Reynolds and others. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by J. R. Houston against Dave Summers and others. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by J. R. Houston against Dave Summers and another. Judgment for plaintiff, and defendants bring error, and after judgment of Supreme Court against appellants, motion filed for judgment against sureties on supersedeas bond.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action between Dave Summers and others against L. L. Clark. There was a judgment for the latter, and the former bring error.

<p>Appeal and Error — Supersedeas Bond — Judg" ment.</p> <p>In a case appealed to the Supreme Court, where supersedeas bond has been given staying execution, and the judgment here is against the appellant, this court by virtue of the provisions of chapter 249, Sess. Laws 1915, will enter judgment against the sureties on such bond.</p> <p>(Syllabus by Bleakmore; C.)</p>

<p>Error from District Court, Love County; W. P. Freeman, Judge.</p> <p>Action by F. M. Culwell against School District No. 22, Love County. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Damages — Measure.</p> <p>When the law gives a remedy for a wrong done, the compensation should be equal to the injuiry sustained, and the latter is the standard by which the former is to be measured. The injured party is to be placed as near as may be in the situation which he would have occupied had not the wrong been done.</p> <p>2. Attachment — Attachment Bond — Damages.</p> <p>The damages recoverable on an attachment bond are compensatory in their nature, such as loss or depreciation in value of the attached property, interest, costs, and expenses, including under our statute reasonable attorney's fees, and which are the proximate re suit of the attachment, when the order therefor has been wrongfully obtained.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by G. W. Sanders and another against J. H. Rumley and others. Judgment for plaintiffs against J. H. Rumley,</p> <p>and he brings error, and after dismissal of appeal for want of prosecution, defendants in error move for judgment ágainst sureties on the supersedeas bond.</p>

<p>Error from District Court, Beaver County ; R. H. Loofbourrow, Judge.</p> <p>Action by E. C. Voris against Charles N. Birdsall and others. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court, Jefferson County : J. M. Adams, Judge. Action by J. H. Parsons and another against the Chicago, Bock Jsland & Pacific Railway Company. Judgment for plaintiffs, motion for new trial overruled, and defendant excepts and brings error.

<p>Error from District Court, Comanche County; Cham Jones, Judge.</p> <p>Action by T. D. Kelley against City of Lawton. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Kiowa County; T. A. Edwards, Judge. Action by Alfred Norris against D. A. Scott, E. A. Wesson, and Julia Wesson upon certain promissory notes and to foreclose a mortgage, with cross-petition by defendants Wesson. Judgment for plaintiff and for cross-petitioners, and defendant Scott appeals.

<p>Pleading — Sustaining-. Demurrer — Waiver of Error.</p> <p>Where a demurrer to a petition is sustained and the plaintiff asks for and is granted time in which to amend, the error, if any, in sustaining said demurrer is waived and cannot be assigned as error ;.and tlie judgment oí tlie court dismissing tlie plaintiff’s cause of action wliere lie fails to file an amended pleading under the state of case above given was proper.</p> <p>(Syllabus by Hooker, O.)</p>

<p>1. New Trial — Newly Discovered Evidence— Motion — Affidavit.</p> <p>Motion for new trial on ground of newly discovered evidence must be sustained by affidavit showing truth of matters alleged in such motion.</p> <p>2. Same — -Motion—Material Facts.</p> <p>The evidence expected to be produced, as set forth in such motion for a new trial, must consist of material facts, not conclusions and argumentative matter.</p> <p>3. Appeal and Error — Objections—Time— Question of Fact.</p> <p>The sufficiency of the evidence to sustain the verdict of the jury cannot be considered in this court unless its sufficiency was challenged by the appellant in some manner in the court below before finally submitting the issues to the jury, there being nothing to show that the verdict was excessive or influenced by passion or prejudice.</p> <p>4. Appeal and Error — Reversible Error— Charge on Damages.</p> <p>Where there is competent evidence tending to show damages alleged, and the verdict is not excessive, and when the complaining party does not request the trial court to give an instruction correctly stating the measure of damages, a cause will not be reversed because the court’s charge does not accurately define the measure of damages.</p> <p>(Syllabus by Stewart, C.)</p> <p>Error from County Court, Jefferson County; J. M. Adams, Judge.</p>

■ Error from District Court, Haskell County; W. H. Brown, Judge. Action between Rachel King and others and N. W. Palmer and others. There was judgment for tlie latter, and the former brings error.

<p>1. Garnishment — Payment—Effect.</p> <p>The liability to the judgment plaintiff of principal and sureties upon a discharging bond in attachment may be satisfied by a payment, made under a judgment in garnishment proceeding brought by a creditor of said judgment plaintiff.</p> <p>2. Garnishment — Right of Action.</p> <p>Garnishment proceedings against- a judg ment debtor will lie in favor of a creditor holding a judgment against the judgment creditor of such debtor; each judgment being recovered in the same court.</p> <p>3. Garnishment — Proceedings — Payment— Effect</p> <p>H., judgment creditor of A. F. P., issued a garnishment summons to C. and B., judgment debtors of E. C. P., alleging that E. C. P. was a fraudulent trustee of said judgment for A. F. P. E. C. P. intervened in said proceedings and denied the trusteeship or that he was indebted to A. F. P. A final judgment was rendered against him which also directed the application by C. and B. of the amount owing to E. C. P.' to the judgment of H. against A. F. P. The judgments of E. C. P. and of H. were recovered in the same Court. Held, that such garnishment proceedings would lie, and that a payment by G. and B. on the judgment of H. was a discharge pro tanto of the judgment of E. O. P. and eon sequently a defense to an action by him against them on the discharging bond.</p> <p>(Syllabus by Burford, 0.)</p>

<p>Error from District Court, McClain County ; R. McMillan, Judge.</p> <p>Action by W. E. Caldwell and others against J. B. Thurston, County Treaurer, and others. Judgment for plaintiffs, and defendants appeal.</p>

Error from District Court, Marshall County ; Jesse M. Hatchett, Judge. Action by R. H. Chowning against the Missouri, Kansas & Texas Railway Company and James W. Lusk and another, receivers of the St. Louis & San Francisco Railroad Company, begun ■ in justice court, where there was a judgment in favor of plaintiff against the first-named defendant and in favor of the latter.

<p>1.Animals — Licenses—Municipal Corporations — Dogs — Statutes — “Tax” — “Due Process of Law.”</p> <p>Statutes and ordinances may be passed regulating, restricting, or even prohibiting the running at large of dogs in an incorporated town; and this although dogs are unquestionably property. The owners, keepers, or harborers of dogs in an incorporated town may be required to register the same, and to pay a registration fee therefor, although this fee may in one sense be a tax though not a tax within the meaning of sections 5 and 14, art. 10, of the state Constitution. Dogs in incorporated towns may be classified, and the owners, keepers, or harborers thereof may be required to register all the dogs of one class and not the dogs of another class, and to pay a greater registration fee for the registration of the dogs of one class than for the registration of the dogs of another class; and such owners, keepers, or harborers of dogs may also be required to put collars around the necks of their dogs; and any dog found running at large in an incorporated town, in violation of the statutes or ordinances, may be summarily destroyed. All this is constitutional and valid, and is “due process of law”; and by the same no one is denied “the equal protection of the laws.”</p> <p>2. Malicious Prosecution — Instructions— Propriety.</p> <p>Certain instructions given by the trial court examined, and held to be erroneous.</p> <p>3. Malicious Prosecution — Actions — Elements.</p> <p>The elements entering into and necessary to be shown in a suit for damages for malicious prosecution are: (1) That a prosecution was commenced against plaintiff; (2) that it was instituted or instigated by defendant ; (3) that it was malicious; (4) that it has been legally and finally terminated in plaintiff’s favor; (5) that it was without probable cause.</p> <p>4. Malicious Prosecution — Action — Recovery.</p> <p>The evidence in the trial court clearly discloses that the plaintiff, Gibson, voluntarily pleaded guilty to the criminal charge before the justice of the peace.</p> <p>5. Malicious Prosecution — Question for Court.</p> <p>Where the substantial facts to probable cause are not disputed, whether they are snf fieient to constitute probable cause is for the court.</p> <p>6. Malicious Prosecution — Actions—Demurrer to Evidence.</p> <p>The court erred in not sustaining the defendants’ demurrer to the evidence, interposed at the close of all the testimony taken upon the trial of the cause, and in refusing to direct a verdict in favor of defendant.</p> <p>(Syllabus by Davis, O.)</p>

<p>Error from District Court, McCurtain County; Summers Hardy, Judge.</p> <p>Action by N. V. V. Eraneliot against Mrs. C. H. Nash and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Murray County ; R. McMillan, Judge.</p> <p>Action by the State, on the relation of J. D, Lankford, Bank Commissioner of the State of Oklahoma, against the City of Sul-phur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by P. B. Henry against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by the State of Oklahoma, on the relation of J. D. Lankford, Bank Commissioner of the State of Oklahoma, against the City of Sulphur. There was a judgment for plaintiff!, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by S. M. Stevens against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; - R. McMillan, Judge.</p> <p>Action by Butt & Roberts against the City of Sulphur. There was a judgment for plaintiff and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by Carey, Lombard, Young & Co. against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by J. C. Chidsey against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by Ella B. Wall against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County; R. McMillan, Judge.</p> <p>Action by the Pittsburg Motor Company against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Murray County ; R. McMillan, Judge.</p> <p>Action by the Texas Manufacturing Company against the City of Sulphur. There was a judgment for plaintiff, and defendant brings error.</p>