Volume 63 — Oklahoma Reports

<p>Error from District Court, Okfuskee County; John Caruthers, Judge.</p> <p>Action by B. F. Harman against the Ft. Smith & Western Railroad Company. There was a judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Action by Lilly Jackson, through her guardian, W. C. Horton, against J. S. Moffett and others, -and Nellie B. Conley, as admin-istratrix of the estate of H. T. Conley, deceased, intervened. From a judgment for the intervener, the defendants other than Mack McCoy bring error.

Complaints against the Oklahoma Gin Company and others for forming an unlawful combination in restraint of trade. From orders of the Corporation Commission imposing penalties, the Oklahoma Gin Company appeals.

Error from District Court, Osage County; R. H. Hudson, Judge. In the matter of the appeal of Franklin Hickman from the Board of County Commissioners of Osage County. The district court refused to entertain the appeal, and plaintiff brings error.

<p>Error from District Court, Pontotoc County; Tom D. McKeown, Judge.</p> <p>Action by the Cottage Home Remedy Company against Mrs. H. H. Smith and another. There was a judgment for defendants, and plaintiff brings error.,</p>

Error from County Court, Creek County; Warren H. Brown. Judge. Action by P. M. Castanien and another against Dan Tankersley and others begun in justice court and appealed to county court. There was a judgment there for plaintiffs, and defendants bring error.

Error from District Court, Alfalfa County: James W. Steen, Judge. Action between Hank Duncan and others and Lillian Ratcliff. There was a judgment for tlie latter, and the former bring error.

<p>Error from County C-ourt,'Greer County; II. M. Thacker, Judge.</p> <p>Action by W. D. Haley against O. O. BYost. There was a judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by D. B. Boswell and another against O. A. Mackey. There was a judgment for plaintiffs, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>L Indians — Suit to Cancel Oil Lease — Evidence — Records.</p> <p>In a suit to set aside an oil and gas mining lease, dated August 24, 1909, on the ground that it was procured by fraud and while plaintiff was a minor, and hence was void under Act May 27,1903, e. 199, 35 Stat. 312, to prove his minority at that time, plaintiff introduced in evidence the census card, showing that he was nine years old on the date of his enrollment. At the lower right-hand corner of the card appeared: “June 9-99.” Held that, as there was nothing on the face of the card to show such was the date of his application for enrollment, the card was without probative force to prove that plaintiff was nine years old on that date.</p> <p>2. Same.</p> <p>For the purpose of proving his quantum of Indian blood to be one-eighth, plaintiff introduced in evidence a certified copy of the approved rolls of the Creek citizens by blood of the Creek Nation, showing his quantum of Indian blood to be one-eighth. In the certificate thereto was the statement: “Enrolled as of June 8, 1S99.” Held, that such statement was no part of the record certified and was without probative force to prove the date of plaintiff’s application for enrollment.</p> <p>3. Same — Validity of Lease.</p> <p>In a suit to set aside an oil and gas mining lease for fraud in its procurement, and while plaintiff was a minor-in violation of Act May 27, 1908, where the enrollment records fail to disclose the d-ate of enrollment of plaintiff, but the undisputed parol evidence shows him to have been born February 8,1890, and hence was a minor ou August 24. 1909, -the date of the execution of the lease, evidence examined, and held, that the court was right in finding there was no fraud in its procurement, but that, aside from the question of fraud, the lease was in violation of the act, and not voidable, but void.</p> <p>4. Same — Validity of Second Lease.</p> <p>Where a minor citizen of the Greek Nation of one-eighth Indian blood during his minority executes a lease upon his allotment, without the intervention of the county court, and void as in contravention of Act May 27, 1908, and after -attaining his majority, without fraud in its procurement, and for a valuable consideration, executes another lease on the same land to the same party and others interested in the prior lease for a like term, held, that the subsequent lease is good, and that the court did not err in refusing to set the same aside.</p> <p>5. Same — Enrollment Records — Age.</p> <p>Under Act May 27, 1908, c. 199, sec. 3 (35 Stat. 313), providing that the enrollment records of the Commissioner to the Five Civi-ized Tribes shall be conclusive evidence as to the age of an enrolled citizen or freedman, assuming that we can take judicial notice that “June 9-99,” appearing on the lower right-hand corner of the enrollment record, was the date of plaintiff’s enrollment, and that lie was nine years old on that date, such is only conclusive that on said date he had passed his ninth birthday and had not yet reached his tenth, and does not prove that he was a minor on February 8, 1911, the date of the lease sought to be set aside on the ground of minority, which was four months and one day less than 12 years thereafter.</p>

<p>Error from District Court, Latimer County ; W. H. Brown, Judge.</p> <p>Action by Jennie Lee Jackson, administra-trix, against the Chicago, Rock Island & Bacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Rogers County; T. L. Brown, Judge. Action by L. A. Bell against Charles Ross and W. L. Olapsadle. Judgment for defendants, and plaintiff brings error. Pending the appeal, Bell died, and the proceeding in error was thereafter revived and continued in the name of F. Clementine Youngblood, Oallie L. Minor, H. Anna Bell, James H. Kennedy, as administrator of the estate of said L. A. Bell, deceased, as plaintiffs in error.

<p>Error from District Court, Lincoln County; Charles B. Wilson, Jr., Judge.</p> <p>Proceeding by W. R. Burford against the Board of County Commissioners of .Lincoln County, Okla., and E. W. Hoyt. Judgment against plaintiff and in favor of the Board and judgment against such Board in favor of defendant I-Ioyt, and plaintiff brings error.</p>

Error from District Court, Okfuskee County ; George C. Crump, Judge. Suit by Lucineal Schultz against Watkoche and others and R. B. Selvidge. Judgment for plaintiff, and defendants bring error. On motion to dismiss.

<p>(Syllabus by tlie Court.)</p> <p>Master and Servant — New Trial — Action for Sendees — Instructions — Newly Discovered Evidence — Right to New Trial.</p> <p>Record examined, and lield: (1) That the instructions given to the jury by the trial court fully and fairly state the law applicable to the issues joined by the pleadings and the evidence; (2) that the trial court did not err in overruling defendant’s motion for a new trial, based upon newly discovered evidence.</p>

<p>Error from District Court, Nowata County; A. C. Hough, Special Judge.</p> <p>Motion by W. V. Thraves against W. B. Tucker and another to vacate a prior judgment. Order overruling motion, and Thraves brings error.</p>

Error from District Court, Alfalfa County; James B. Cullison Judge. Action between Willis H. Peek and D. A. Hughey and another. There was a judgment for the latter, and the former brings error.

<p>(Syllabus by the Court.)</p> <p>1 Usury — Recovery—Payment—What Constitutes — Constitution.</p> <p>The giving of a new note in renewal of a previous one is not a payment thereof as contemplated by section 3 of article 14 of the Constitution. This section contemplates an actual payment, and not a promise to pay in the future.</p> <p>2 Usury — “Demand”—Essentials.</p> <p>The “demand” required Dy second proviso to section 1005, Rev. Laws 1910 as a condition precedent to an action for the recovery of usurious interest paid should be for the entire amount which the party is entitled to recover, and not for the amount of interest in excess of the legal rate. Demand in this case held to be sufficient.</p>

Error from District ‘Court. Cherokee County; John H. Pitchford, Judge. Proceeding between William H. Ford and others and Ada-P. Barnett and others,. consolidated with proceedings between Ida M. Fitzgibbon and William H. Ford and others. From that part of the decree canceling a note and mortgage given by Ford and wife to Avery D. Routh as guardian of Ada P. Barnett, a minor, Routli brings error.

Error from Superior Court, Custer County; J.W. Law ter, Judge. Action by H. R. Paden and J. W. Smith, partners doing business under the firm name and style of Paden & Smith, against the Chicago, Rock Island & Pacific Railway Company. There was judgment for plaintiffs. Defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Constitutional Law — Amendment—Workmen’s Compensation Law.</p> <p>Chapter 246, Bess. Laws 1915, p. 574, known as the “Workmen’s Compensation Law,” is not an amendment of the Constitution nor does said chapter submit an amendment to tlie people for adoption by them.</p> <p>2. Master and Servant — Workmen’s Compensation Law — Constitutionality—Police Power.</p> <p>Said chapter 240 of Sess. Laws 1915, which requires all employers engaged in certain hazardous occupations therein enumerated to provide compensation according to certain schedules for all accidental injuries without regard to fault upon the part of said employer arising out of or in tlie course of employment, and sucli diseases or infections as may naturally and unavoidably result therefrom, by one of three methods prescribed in the act, and places the supervision and ad-niinistration thereof under tlie State Industrial Commission, provides penalties for violations of the act, and abrogates the right of action to recover damages not resulting in death, except a right of action reserved to tlie State Industrial Commission for the benefit of an injured employe, is within tlie authority ot the Legislature, and the enactment, thereof was a legitimate exercise of the police power of the state.</p> <p>3. Constitutional Law — Master ami Servant — Legislative Powers — Amendment — Workmen’s Compensation Law.</p> <p>Said chapter does not violate section 1, art. o. Williams’ Ann. Const., which declares that the legislative authority of tlie state shall be vested in the Legislature, consisting of a Senate and House of Representatives, nor section 36, art. 5, declaring that the authority of the Legislature shall extend to all rightful subjects of legislation, nor sections 1 and 2, art. 24, which prescribe the procedure for amending tlie Constitution.</p> <p>4. Statutes — Subject and Title — Workmen’s Compensation Law.</p> <p>Neither is said act void because the title thereof does not contain any reference to the provisions making the compensation thereby provided exclusive and abrogating the right of action in tlie courts by an injured employe to recover damages. The act treats of one general subject, and all of its provisions are properly referable to and cognate therewith.</p> <p>5. Constitutional Law — Power of Judiciiary —Legislative Encroachment.</p> <p>Section O. art. 2, Williams’ Ann. Const., relates to tlie judiciary, and does not constitute a limitation upon the power of the Legislature to abolish the rules by which heretofore tlie liability of a master for injuries to liis servant was determined, nor tlie defenses of fellow servants’ contributory negligence and assumption of risk..</p> <p>6. Constitutional Law — Vested Rights — Rule of Law.</p> <p>Tlie citizen lias no property in a rule of law, and while rights which have accrued to him under tlie operation of existing laws and have thereby become ¡vested may not be taken away by a change of the rules, he cannot he heard to complain if the rule is changed before any rights have accrued to him thereunder.</p> <p>7. Constitutional Law — Master and Servant —Due Process of Law — Equal Protection of the Laws — Workmen’s Compensation Law.</p> <p>Said chapter 246 of Sess. Laws 1915 does not deprive an employe, injured after its passage, of property without due process of law, nor does it deprive such employe of the equal protection of the law.</p> <p>8. Jury — Trial by Jury — Constitutional Provisions.</p> <p>The seventh amendment to the United States Constitution was not intended to guarantee a trial by jury to a litigant in a civil action in the courts of the several states.</p> <p>9. Same — Workmen’s Compensation Law.</p> <p>Const, sec. 19, art. 2, providing that tlie right of trial by jury shall be and remain inviolate, except as modified by the Constitution itself, means the right as it existed at the time the Constitution was adopted, but said provision does not operate to prevent tlie Legislature from abrogating the < oinmon law right of action for injuries not resulting in death by persons employed in certain hazardous occupations, and su'bstitut ing tliorefor the scheme embraced in chapter 246, Sess. Laws 1915, ill which the compensation awarded is determined without a trial by jury, where the injury did not occur until after the passage of said act.</p> <p>10. Master and Servant — Workmen's Compensation Law — Willful or Intentional Injury.</p> <p>Said chapter 246 of Sess. Laws 1915 provides for compensation for all accidental injuries, not resulting in death, whether occurring from the negligence of the employer or not, arising out of or in the course óf employment, but does not include willful or intentional injuries inflicted by the employe or resulting from ail intent upon the part of the employe to injure himself or another, or for a willful failure to use a guard or other protection against accident, required by statute or furnished pursuant to an order of the state labor commissioner, and for willful injuries inflicted by the employer leaves the employe to his remedy by an action as heretofore.</p> <p>11. Same — Injury Arising out of and in Course of Employment.</p> <p>The injuries alleged in plaintiff’s petition held to he within the purview of the act.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Supersedeas Bond— Statute — Validity.</p> <p>A supersedeas bond, though it does not comply with the ianguage of the statute, voluntarily entered into for a valid consideration, and when not repugnant to the letter or policy of the law, will be held good as a common-law bond.</p> <p>2. Same— “Affirmance” — Liability of Surety.</p> <p>For the purpose of enabling his princi- ' pal to secure a stay of execution as provided in section 5251, ltev. Laws 1910, a surety executed a supersedeas bond conditioned, in effect, that if the principal did not, he would pay “the condemnation money and costs in case judgment or final order shall be ajudged against it.” The principal neglected for more than six months after the rendition of the final order to institute proceedings in error in the Supreme Court for a reversal of the judgment, though such proceedings were subsequently filed. Thereafter the petition in error was dismissed by the court because filed •out of time. Held, that the dismissal operated as an “affirmance” of the judgment within the meaning of the bond, and that the surety was liable thereon.</p>

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

<p>(Syllabus by the Court.)</p> <p>Dismissal of Proceeding's in Error-Authority.</p> <p>Motion to dismiss sustained, upon authority of Chicago, Rock Island & Pacific R. Co. v. F. F. McGill (No. 6284) 63 Okla. 64, 162 Pac. 705, just handed down.</p>

<p>Error from District Court, Choctaw County; Summers Hardy, Judge.</p> <p>Action by O. L. Couch against the Board of Education of the City of Hugo, Choctaw County. There was a judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Motion to Vacate Judgment — Review—Time for Proceeding— Statute — Dismissal.</p> <p>Under section 4452, St. 1893 (section 5255, Rev. Laws 1910), as amended by Act Feb. 14, 1911 (Sess. Laws 1910-11, c. 18), a proceeding to review an order denying a motion to vacate a prior judgment must be commenced within 6 months from the date of such order.</p> <p>. (a) Within the meaning of this section of our statutes, following the statutory rule in the trial courts (section 3892, St. 1893, the same being section 4659, Rev. Laws 1910), such proceeding for a review is commenced, as to each defendant in error, at the date of the summons which is served on him, or on a codefendant who is a joint contractor or otherwise united in interest with him, provided such service of summons is actually made within 60 days from said date, and provided further that, where an attempt to commence such a proceeding, as, for instance, by filing a praecipe for summons, is made before the date of such summons, followed by a faithful, proper, -and diligent endeavor to procure service, and, within 60 days, by actual service of such summons, such proceeding shall be deemed to have been commenced at such earlier date, and provided still further, where service by publication is proper and is actually made, such proceeding shall be deemed commenced at the date of the first publication, or, if a faithful, proper, and diligent endeavor be made at an earlier date to procure such service, as, for instance, by praecipe and other prerequisite steps, and, within 60 days thereafter, such first publication is actually made, such proceeding shall be deemed commenced at the date of such attempt.</p> <p>(b) The earliest time at which an attempt to commence a proceeding for review in this court can be deemed a commencement of the same is the sixtieth day before actual service or first publication is made.</p> <p>(c) Where such proceeding is not so commenced within said limited period of 6 months, a motion to dismiss the same will be sustained and such proceeding dismissed.</p>

Error from County Court, Pottawatomie County; Hal Johnson, Judge. Action by T. C. Beavers against R. Wyant. From a judgment of the county court for plaintiff on appeal from the judgment for plaintiff in justice court, defendant brings error.

Error from District Court, Sequoyah County; John H. Pitchford, Judge. Action by Louis Reinman against the Kansas City Southern Railway Company and Ferguson Contracting Company. Judgment for plaintiff, and defendant railway company brings error.

<p>Error from District Court, Pottawatomie County; Chas. B. lYilson, Jr..'Judge.</p> <p>Action by 1Y. H. Mayfield against the Chicago. Rock Island & Pacific Railway Company. There was a judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Oourt.)</p> <p>1.Equity — Breach of Condition Subsequent —Quieting Title.</p> <p>Notwithstanding its abhorrence of forfeitures, a court of equity will take jurisdiction, not to declare a forfeiture, but to quiet a title already forfeited for nonperformance of a condition subsequent, when the plain language of the instrument shows that it was the purpose of the parties to declare that a breach should operate as a forfeiture.</p> <p>2. Deeds — Condition Subsequent — Effect.</p> <p>Where a condition subsequent is raised by apt and sufficient words, the estate conveyed remains defeasible until the condition be performed, destroyed, or barred by tlie statute of limitation, or by estoppel.</p> <p>3. Same — Breach of Condition — Action— Prerequisites.</p> <p>By the weight of authority, an action may be maintained, possessory or otherwise, upon tlie breach of a condition subsequent, without re-entry, demand, or possession, or notice of forfeiture; the commencement of an action being deemed equivalent thereto.</p> <p>4. Same — Waiver of Breach.</p> <p>Generally, the breach of a condition subsequent may be waived by acts showing an intention to continue the estate in the grantee, but no waiver is occasioned by mere indulgence, or mere silent acquiescence, where it does not appear that the grantee understood there was a waiver, or that he relied thereon in proceeding to do the act claimed to operate as a forfeiture.</p> <p>5. Quieting' Title — Condition Subsequent— Forfeiture — Judgment.</p> <p>Record examined, and held that, in view of the purpose of the forfeiture clause and the facts and circumstances of the case, the portion of the judgment which requires the defendant to replace upon the lots the build' ing, the erection of which breached the con dition subsequent, which was removed therefrom during the pendency of the suit, or pay the plaintiff the value thereof, is inequitable and should be set aside. <</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Carriers—Trial—Injuries to Mail Clerks — Questions for Jury — Negligence — Proximate Cause — Evidence — Instructions.</p> <p>Record examined and held : (1) That there was sufficient evidence adduced at the trial to take the case to the jury on the question whether or not there was negligence on the part of the defendant, and whether such negligence was the proximate cause of the injury ; (2) that there was no misdirection of the jury or improper admission or rejection of evidence which appears to have resulted in a miscarriage of justice.or constitutes a-substantial violation of any constitutional or statutory right.</p> <p>2. Appeal arid Error — Personal Injury — Excessive Damages.</p> <p>A verdict will not be set aside in a case of tort for excessive damages, unless it clearly appears that the jury committed s.ome gross and palphble error, or acted under some improper bias, influence or prejudice, or have totally mistaken the rules of law by which the damages are regulated.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Perfection of Appeal — Dismissal.</p> <p>Where the petition in error is not filed in (he Supreme Court within six months from the rendition of the judgment or final order complained of as required by chapter IS. Sess. Laws 1910-11, the appeal will be dismissed.</p>

Error from District Court. Tillman County ; Cham Jones, Assigned Judge. Action between R. U. Shelton and R. E. Wallace. There was a judgment for the latter, and the former brings error.

<p>Error from Superior Court, Muskogee Comity; H. C. Thurman, Judge.</p> <p>Action between the First State Bank of Warner and S. T. Porter. From the judgment, the former brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Assessment—Injunction.</p> <p>One D. had been appointed assessor of the city of Enid and his appointment confirmed. D. thereafter appointed J. deputy assessor, who procured from certain property owners of the city lists of their taxable property, which lists were signed by the owners and delivered to said J., who administered the proper oath to the persons listing said property and returned said lists, which were duly filed. Held, that assessments made in the manner stated did not render the tax proceedings void so as to entitle the property owner to relief therefrom by injunction.</p> <p>2. Evidence — Presumption—Public Officers.</p> <p>Until the contrary is made to appear the law presumes that public officers have discharged the duties which are imposed upon tlieffi by law.</p> <p>3. Taxation — Assessment—Affidavit.</p> <p>The requirement that the assessor make and attach to the assessment roll an affidavit as set out in section 7326, Rev. Laws 1910, is directory, and the failure of the assessor to attach said oath to the assessment roll is an irregularity that will not render the tax illegal in an injunction proceeding.</p> <p>4. Taxation — Assessment or Equalization— Appeal.</p> <p>Whenever the statutes of a state provide a mode by which appeals may be taken from the assessment or equalization of property, that remedy is exclusive, and equitable remedies cannot be resorted to.</p>

<p>Error from District Court, Caddo County; Frank M. Bailey, Judge.</p> <p>Action by W. O. Van Arsdale agains.t School District No. S9 of Caddo County. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Comanche County; James R. Tolbert, Assigned Judge. Action by Armeline P. Broe, administratrix, and Arnold F. Broe, administrator, of the estate of George W. Broe, deceased, against J. O. .Severns, consolidated with an action by F. M. English, receiver. Prom a judgment for plaintiffs, defendant appeals.

<p>(Syllabus by the Court.)</p> <p>1. Carriers — Kates—Inter: tate Commerce— Contract of Shipment — Validity.</p> <p>I>y reason of section 6 of the Interstate Commerce Act Feb. 4, 1SS7, c. 104, 24 Stat. 3S0. as amended by act approved June 29, 31)00. c. ;»<)1. see. 2, 34 Stat. 58(> (U. S. Comp. St. 1909, n. 11531, a contract with a railroad company to carry interstate freight at a rate less than or different from that prescribed by the published schedule rates filed with and approved by the Interstate Commerce Commission and iu force at the time of shipment is void. r,</p> <p>2. Same — Invalid Kate — Lien.</p> <p>In such case, the carrier has a lien upon said freight for the amount of the legal charges, and the shipper is not entitled to recover, the goods or damages for their detention upon the payment or tender of any sum less than the schedule rates.</p> <p>3. Evidence — Secondary Evidence — Interstate Shipment — Rate—Schedules.</p> <p>The published schedule rates filed with and approved by the Interstate Commerce Commission are ihe best evidence of the taHff in force fixing the legal rates upon a shipment between certain points, and evidence as to statements made by the carrier’s agent is inadmissible to establish the correct rate.</p>

Error from District Court, Oklahoma County ; Geo. W. Clark, Judge. Action by G. W. Livengood and another against C. R. Ball and others. Judgment for defendants, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>Process — Service—Exemptions.</p> <p>Nonresident plaintiffs who voluntarily come within the jurisdiction of the courts of this state to attend the trial of litigation commenced by them against citizens of this state are not exempt from service of a summons in an action by defendants for relief connected with the subject of the litigation commenced by them when a full and complete adjustment of the rights of the parties cannot be had in the first action, and where full relief would be denied the citizens of this state in courts of the state of plaintiffs’ residence.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Action by W. I. Cruce and others against the Paraffine Oil Company, a corporation, and others. There was a judgment for plaintiffs, and defendants bring error.

<p>Original proceeding by Tom Kemp and Ollie Kemp, petitioners, for a supersedeas and stay. of judgment in the action of Alta Kelly, a minor, by her next friend, Lizzie Stribling, against Tom Kemp and Ollie Kemp, and for a mandatory order directing redelivery to petitioners of the custody of the minor, which under such decree and judgment had been taken from petitioners and delivered to Lizzife Stribling, its mother.</p>

Original application for writ of habeas corpus by J. Krouch and another, members of the Board of County Commissioners of Pottawatomie County, against the Sheriff of that county.

<p>1. Witnesses — Husband and Wife — Aetion for Alienation of Affections — Evidence.</p> <p>In an action by a husband for damage for the alienation of the affections of his wife and her seduction, lie-is a competent, witness except concerning transactions or communications had by him with his wife.</p> <p>2. Trial — Disjunctive Instruction.</p> <p>Instructions examined, and held to fairly state the law applicable.</p> <p>(Syllabus by Bleakmore, O.)</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Questions of Fact — . Findings.</p> <p>In a suit in equity, the Supreme Court on appeal is not at liberty to set aside the findings of fact of the trial court, unless, after a consideration of the entire record, it appears that such findings are clearly against the weight of the evidence.</p> <p>2. Weight of Evidence.</p> <p>Record examined, and held, that the judgment rendered by the trial court is not clearly against the weight of the evidence.</p>

Error from County Court, Bryan County; J. L. Bappolee, Judge. Action by the Bishop-Babcock-Becker Company against the Estes Drug Company and another. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>Carrier's — Carriage of Passengers — “Interstate Passenger.”</p> <p>A. purchased a ticket over defendant’s railroad from Oklahoma City, Okla., to Colbert, Okla., intending to proceed from the latter place to Achille, a point within this state. Upon reaching Atoka, Oklahoma, he decided to proceed, to Denison, Tex., and tendered defendant the unused portion of his ticket entitling him to passage as an intrastate passenger from Atoka to Colbert and cash fare at the interstate rate from Colbert to Deni-son, Tex., which was refused, and defendant demanded of him in addition to his ticket one cent per mile from Atoka to Colbert, which, with the ticket and the cash tendered by plaintiff, would equal the published tariffs for one continuous passage from Atoka to Denison. Plaintiff refused to pay this amount and was evicted from the train at Col'bert, and sued for damages for the eviction. Held, that plaintiff was an “interstate passenger” from Atoka to Denison, Tex., and was required to pay the rate prescribed by the published tariffs for the journey from Atoka to Denison, and upon his refusal to pay an extra one cent per mile from Atoka to Colbert, in addition to the ticket and the cash fare tendered from Colbert to Denison, defendant was entitled to eject him from its train, and, in the absence of circumstances other than the mere fact of removing him from the train, plaintiff is not entitled to recover.</p>

<p>Error from District Court, G-arfield Countty; James »B. Cullison, Judge.</p> <p>Suit toy A. H. McFal'l against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Muskogee Count}'; R. P. de G-raffenried, Judge. Action by Robert L. Owen against the Indian Land & Trust Company, a corporation, and others. There was a judgment for plaintiff, and defendants bring error.

Error from County Court, Harper County; B. C. Krause, Judge. Suit by Willie Moore against C. Carter and others, in which the Guarantee State Bank intervened as a party defendant. Demurrer to plea of intervention sustained, and intervener brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Preservation of Grounds for Review — Motion for New Trial — Record—Bill of Exceptions.</p> <p>“Errors occurring on the trial of a cause are not renewable in this court, unless the same were brought to the attention of the trial court by motion for new trial, and acted upon, and such motion and the ruling thereon preserved by bill of exceptions included in a transcript, or incorporated in a case-made, filed with a petition in error in this court.’1’</p> <p>2. Appeal and Error — 'Case-Made—Dismissal.</p> <p>Where the case-madet certified as a transcript, fails to contain the motion for a new trial and the errors assigned are not apparent on the face of the record, the cause will be dismissed.</p>

<p>(Syllabus by the Court.)</p> <p>Evidence — Parol Evidence — Property Included in Chattel Mortgage.</p> <p>Where the property included in a chattel mortgage is described as, “One standard oil drill and rig and all tools and equipment, consisting of boiler, engines, bits, stems, etc., now located on the N. E. % of See. 9, T. 3, south of ra-nge 15 west.” parol proof of the extent and meaning of the words employed and the sense in which the parties used them is admissible, and in this case it was error to exclude certain testimony offered for the purpose of showing that certain oil well easing used by the mortgagor in connection with the oil drill and rig was not included in the general description.</p>

<p>Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge.</p> <p>Action by J. A. Irick against J. W. Rubey. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Municipal Corporations — Ordinance — Initiative — Statute.</p> <p>. Section 4c, art. 18, Williams’ Ann. Const., requires that an initiative petition which demands the enactment of an ordinance shall be presented to the legislative body of the 'municipality by the chief executive officer thereof at its next meeting after the filing of same, and unless such petition shall be granted more than 30 days before the next election at which any city officers are to be elected, the chief executive officer shall submit said ordinance to the qualified electors at said election for their action thereon.</p> <p>2. Same.</p> <p>Where an initiative petition was fllecl with the city clerk of Pauls Valley demanding the enactment of an ordinance, and 'the mayor of said city, on the day after same was filed, called an election upon a date other than the next city election at which any city officers were to be elected, submitting said ordinance to the electors of the city without said petition having been presented to the city council and without the council having ordered a special election to vote on said measure, held, that said ordinance was not legally submitted, and the election held thereon was void.</p> <p>Thacker, X, dissenting in part.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by the Large Oil Company against E. B. Howard, Auditor of the State of Oklahoma. ErOm a judgment sustaining a demurrer to plaintiff’s petition and dismissing its cause of action, and for costs, plaintiff brings error.

Error from Superior Court, Garfield County ; Fan ITuett, Judge. Action by Hamlin AY. Sawyer against E. B. AYeatherly, Treasurer and ex officio Tax Collector of Garfield County, Okla. Judgment for plaintiff on overruling demurrer, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Indians — Allotment — Conveyance — Validity — Statutes.</p> <p>A deed to his surplus or homestead allotments, executed 'by a Cherokee freedman before attaining his majority and after the act of Congress of May 27, 1908 (35 Stat. 312, c. 199), took effect, is absolutely void, a,s viola-tive of section 5 of said act.</p> <p>2. Same.</p> <p>Before the act of Congress of May 27, 1908, became effective, and before attaining his majority, W., a Cherokee freedman, executed a deed to his surplus allotment to E., receiving as .. consideration therefor the full market value of the land. Thereafter, and after the passage of the act of May 27, 1908, and after he attained his majority, AV. executed another deed to his surplus allotment to E., giving as a reason therefor that certain parties told him that he was not .of age according to the rolls at the time the first deed was made, but the grantee had paid him all the land was worth, and he wanted to make a new deed without any further consideration, in order to make the grantee “safe.” Held, (1) That the validity or invalidity of the last deed was governed by the terms of section 5 "'of the act of May 27, 1908; (2) that the deed executed after the grantee attained his majority was not void, as violative of section 5, supra.</p> <p>3. Same — Inadequacy of Price.</p> <p>Mere inadequacy of price, or any other inequality in the bargain, is notjper se a ground to avoid the deed of an adult Cherokee freedman to his surplus allotment, either in equity or by the terms of any restrictive statute.</p> <p>4.Same.</p> <p>The same allottee, W., before attaining his majority, without actual fraud, and for a sufficient consideration, executed a deed to his homestead allotment to P. Thereafter, after the passage of the act of May 27, 1908, and after he had attained his majority, for a sufficient consideration, without knowledge thereof on the part of P., he sold the same tract of land to M. Thereafter, in good faith and for a valuable consideration, M. sold the same tract of land to P. Thereafter the allottee, by direction of M., executed a deed to said land directly to P. Held, that the last deed from the allottee to P. was not void, as viola-tive of section 5 of the act of May 27, 1908.</p>

<p>Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.</p> <p>Action by the First National Bank of Tecumseh against S. L. Harkey and others Judgment for defendants, and plaintiff orings error.</p>

<p>Error from County Court, Kiowa County; J. S. Carpenter, Judge.</p> <p>Action by Delia Grooms against J. L. Kinney and Mrs. R. Kinney. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from County Court, Caddo County; C. Ross Hume, Judge.</p> <p>Action by the State of Oklahoma against Delos K. Lonewolf. Judgment for defendant, and the 'State brings error.</p>

<p>Error from District Oourt, Kingfisher County; James B. Cullison, Judge.</p> <p>Action by James McDonald against Cecelia Miller and Charles Miller. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Grady County; T. P. Clay, Assigned .Judge.</p> <p>Action by J. E. Austin against the Chicago, Rock Island & Pacific Railway Company and Ed Connors and others. Judgment for plaintiff, and the named defendants bring error.</p>

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by Ben F. Whitehill and others against E. B. Howard, Auditor of the State of Oklahoma. From the judgment in favor of defendant, plaintiffs bring error.</p>

<p>Original application for mandamus by the Board of Education of the City of Sapul-l)a, on the relation of the State of Oklahoma, against Gus Corey, County Clerk, Stella Bay-less, Superintendent of Public Instruction, Boy T. Wildman, County Attorney, J. E. Bruin, County Treasurer, and J. V. Frazier, County Judge, composing the Excise Board of Creek Comity, State of Oklahoma, and J. B. Bruin, County Treasurer of said county.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by the Walton Trust Company, a corporation, against Thomas J. Isbell and others. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, McIntosh County ; R. W. Higgins, Judge.</p> <p>Action hy the Georgia State Savings Association of Savannah against Claude A. Niles and Eva B. Niles. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Suit by the Dubuque Fire & Marine Insurance Company against Annie E. McCredie and husband, faínd¡ others. Judgment for plaintiff against the defendant McCredie and husband, and they bring error.</p>

<p>(Syllabus -by the Court.)</p> <p>1. Brokers — Bight to Commission — Services.</p> <p>The mere introduction to the owner by a broker of one who thereafter purchases the premises does not entitle the broker to a commission for the sale of the premises, where the purchaser has already seen and is fully advised as to the property, and has already determined to purchase the same.</p> <p>2. Same.</p> <p>The fact that -a broker possesses the same surname as the owner of the premises, and by mistake p-f the intending purchaser is accidentally brought into contact with such purchaser, whom he never saw before, where the broker does nothing further than to . direct the intending purchaser to the true owner, after an unsuccessful attempt to make a sale, -who thereafter negotiates a sale of the property, does not entitle the broker to a commission.</p> <p>3. Same — Action for Commission — Sufficiency ■ of Evidence.</p> <p>Evidence examined, and held, that plaintiff was neither the procuring cause of the sale nor the efficient agent in effecting same, and was not entitled to a commission therefor.</p>

<p>Error from District Court, 'Sequoyah County; John H. Pitchford, Judge.</p> <p>Suit by C. A.4Oantrell against the St. Louis, Iron Mountain & Southern Railway Com.pany. Judgment for plaintiff, and defendant ■brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Master and Servant — Master’s Duty— Appliances and Place for Work.</p> <p>The master is bound to exercise reasonable care and diligence to provide his servant with a reasonably safe xDlace in which to work and with reasonably safe machinery, rools, and ■appliances with which to work.</p> <p>2. Same — Master’s Liability — Assumption of Risk.</p> <p>In tills state the doctrine of assumption of risk as it existed at the common law affecting railroads has been modified by section 254. Williams’ Annotated Constitution. Where the question involved is whether the servant received the injuries complained of as a result of a risk assumed by him expressly or impliedly, and which injuries resulted from some omission of duty upon the part of the master to the servant, not in violation of some statute, the question is one of fact for the jury.</p> <p>3. New Trial — Motion.—Duty of Trial Court.</p> <p>It is the duty of the trial court upon a motion for new trial which challenges the verdict upon the ground that it is contrary to the evidence to weigh the evidence and to approve or disapprove the verdict, and, if the verdict is such that in the opinion of the trial court it should not be permitted to stand and in his opinion should have been for the other party, to grant a new trial.</p> <p>Thacker, J., dissenting.</p>

Error from District ' Court, Comanche County; Cham Jones, Judge. Action by J. D. Ramsey and another against AY. D. Turner and others. Judgment for plaintiffs, and defendants bring error.

Original application by Grady County and others and the State of Oklahoma and others for a writ of certiorari to review the action of the County Treasurer of Grady County, the County Court of that County, and the District Court of the Fifteenth District Court Judicial District in the matter of a certain proceeding instituted on relation of the tax inquisitor of Grady County against the Chick-asha Cotton Oil Company to assess its omitted property.

. Error from District Court, Okmulgee County ; Ernest B. Hughes, Judge. Statutory action in ejectment and suit to quiet title to' a tract of land toy Nellie Thomas against E. L. Halsell, in which the International Land Company was made a party defendant with leave to file a petition in intervention. Judgment for defendant International Land Company, and plaintiff brings error.

<p>Original application by the Southern National Bank of Wynnewood, Oklahoma, for a writ of certiorari against W. R. Wallace and others.</p>

<p>(Syllabus by the Court)</p> <p>1. Appeal and Error — Amendment of Cross-Petition in Error — Time.</p> <p>Where the original cross-petition in error assigned as error the action of the court in overruling plaintiff’s motion for a new trial, which motion contained as one of the grounds therefor that “the judgment of the trial court in finding the marriage between plaintiff and defendant was illegal and void, is not sustained by sufficient evidence and is contrary to law,” the petition in error may be amended after the expiration of the time in which such cross-appeal must be filed by adding an assignment that “the judgment of the court in finding the marriage between plaintiff and defendant illegal and void is not supported by sufficient evidence and is contrary to law.”</p> <p>3. Marriage — Presumption and Burden of Proof.</p> <p>The burden is upon the person who asserts the illegality of a marriage to prove such illegality, and where a second marriage is shown as a fact, a strong presumption exists in favor of its legality, which is not overcome by mere proof of a prior marriage and that the wife had not obtained a divorce before her second marriage. The party attacking such second marriage has the burden of showing that neither party to the first marriage had obtained .a divorce.</p> <p>3. Divorce — Disposition of Property — Order of Court — Statute.</p> <p>Section 4966, Rev. .Laws 1910, authorizes the court, in any case where a divorce is refused, to make such order as may be proper, equitable, and just for the disposition and division of the property of the parties or either of them, having due regard to the time and manner of acquiring such property, whether the title thereto be in either or both of said parties.</p>

Error from District Court, Pawnee County; Conn Linn, Judge. Suit in equity for an injunction by G. W. Parrish against School District No. 19, C. E. Davies, clerk, R. A. Johnson, director, and J. F. Russell, member. Judgment for plaintiff on the pleadings, and temporary injunction made permanent, and defendants bring error.

<p>Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.</p> <p>Suit by G. M. Liston against James Nail and others.' Judgment for defendants dismissing the suit, and plaintiff brings error.</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Suit by the Employes’ Building & Loan Association against D. A. Crafton and Lizzie Crafton, his wife, and Edward Hagener and A. S. Pace, in which G. W. Martin and the Oklahoma State Bank were made parties defendant. Judgment for plaintiff against the defendants Crafton and Hagener, and judgment for defendant Martin on his cross-petition, from which judgment plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal anti Error — Record—Motions and Exceptions — Rill of Exceptions.</p> <p>Motions presented to the trial court, rulings thereon, and exceptions thereto are not properly a part of the record, and can only be preserved and presented for review on appeal by ineorpoajiting the |same into the record by bill of exceptions or case-made.</p> <p>2. Same — Review—Dismissal.</p> <p>As the petition in error herein presents no question for the consideration of this court, except the action of the trial court in relation to certain motions which are not reviewable upon a transcript, unless brought into the record either by bill of exceptions or case-made, the motion to dismiss must be sustained.</p>

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Suit by Ross Thomas against the Oklahoma Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Railroads — Injury on Track — Negligence —Evidence.</p> <p>Where the evidence tended to show that plaintiff, who was riding in a wagon along a street approaching a crossing of defendant’s railway, did not venture upon the right of way until it was apparent that the crossing wa-s unobstructed and until invited by the conductor in charge of one of defendant’s trains to do so, and after thus going upon the crossing the wagon in which she was riding was struck by cars detached from any train, set in motion without warning, by contact with other cars, the movement of which was unknown to and could not have been anticipated by her, and she was injured as a result of such accident, the evidence is sufficient to support a finding of negligence against the defendant.</p> <p>2. Railroad0 — Injury on Track — N&gligeme —Proximate Cause.</p> <p>Even though -the negligence of a railway company be shown, before a recovery can be had for injuries claimed to have been sustained as the result of such acts of negligence, it must be shown that the acts of negligence complained of were the proximate cause of the injuries alleged.</p> <p>3. Evidence — Expert Testimony — Cause and Extent of Injury.</p> <p>Where the injuries complained of are of such a character as to require skilled and professional men to determine the cause and extent thereof, the question is one of science, and must necessarily be proven by the testimony of skilled, professional persons.</p> <p>4. Railroads — Injury on Track — Sufficiency of Evidence.</p> <p>Evidence in this case held sufficient to reasonably sustain the verdict.</p>

<p>Error from District Court, Washington County; R. H. Hudson, Judge.</p> <p>Action by James N. Vann and Sarah R. Vann against Richard C. Adams and others. Judgment for defendants, and plaintiffs bring emir.</p>

<p>Error from District Court, Jefferson County ; Frank M. Bailey, Judge.</p> <p>Suit by A. P. Blackwell and L. R. Blackwell, his wife, against E. J. Kelly. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Coux’t, Tillman County; Cham Jones, Assigned Judge. Action between the First State Bank of Mountain Park, Okla.. and School District No. 65, Tillman County, Okla. Judgment for the latter, and the former brings error.

Error from District Court, Tulsa County; .Conn Linn, Judge.' Suit for specific performance and for a temporary injunction by the Jane Oil & Gas Company against the Quaker Oil & Gas Company. From an order enjoining the defendant, it brings error.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by F. P- McCormick against the City of Tulsa, J. H. Simmons, Mayor, A. L. Funk, and others, members of its board of commissioners. Judgment for plaintiff directing the passage of an assessment ordinance, and defendants bring error.

<p>Action between J. Le Roy Saddler and E. F. Scott. Judgment for the latter, and the former brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Mandamus—Remand— Grounds — Entry of Judgment Without Retrial.</p> <p>F. sued M. in the district court for cancellation of a deed executed by F. to M. on the ground -'of fraud and mental incapacity. Judgment was rendered in favor of F. can-celling the deed. Upon appeal to the Supreme Court the cause was “reversed and remanded for a new trial.” After the mandate had been issued and spread of record in the district court, M. filed his motion for judgment on the opinion and mandate. F., by leave of court, then filed his amended petition. M. filed his motion to strike the amended petition. The court overruled both the motion for judgment and the motion to strike. In an action by M. for writ of mandamus against the district judge to compel him to enter judgment on the mandate and opinion of the Supreme Court, held, that it was the duty of the trial court to grant a new trial; that the proceedings thus far taken in a retrial of the case being interlocutory and reviewable on a second appeal after a retrial, mandamus will not lie to compel the district judge to enter judgment without a retrial.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Want of Prosecution— Rule of Court — Dismissal.</p> <p>Where plaintiff in error fails to file brief as required by rule 7 of this court (38 Okla. vi, 95 Pac. vi), the appeal will be dismissed for want of prosecution.</p>

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by the Union Trust Company and the Union Trust Company, as trustee, against D. N. Garland and wife and J. O. Barr and wife on notes, and to foreclose a mortgage or deed of trust, and against one Silas Rowland, in which W. J. Walker intervened by answer and cross-petition. Decree for foreclosure, and for foreclosure by defendant Walker against defendants Garland .and Barr, and such defendants bring error.

Error from District Court, Osage County; R. H. Hudson, Judge. Action between Sarah Oberly and others and P. H. Harris and others. From the judgment, Oberly and others bring error.

Error from County Court, Love County; J. H. Harp, Judge. Suit by H. C. Sherwin against the trustees of the estate of Horace E. Horton, deceased, proprietors of the Chicago Bridge & Iron Works. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Mandamus by the Oklahoma Bankers’ Trust Company against the State Banking Board of the State of Oklahoma and J. C. McClelland and another, members of the board, and J. D. Lankford. Peremptory writ of mandamus issued, and defendants ■bring error.

Error from County Court, Pittsburg County; B. P. Hammond, Judge. Action| by Lowrey Bros., a partnership composed of John A. Lowrey and M. C. Low-rey, against L. S. Millus. with attachment of personal property, in which Mrs. M. F. Mil-lus, wife of defendant, filed a denominated “interplea in attachment,” claiming title and right to immediate possession of the attached property.

Error from County Court, McCurtain County; E. E. Cochran, Judge. Action of forcible entry and detainer,, by I''. M. Mayhall against Catherine Brown and Davis Brown. From a judgment of the county court, on appeal from a judgment in justice court for plaintiff, directing a verdict for plaintiff, defendants bring error.

Error from District Court, Muskogee County ; R. P. de Graffenreid, Judge. Action by Clyde Barnes and another against Octavia Bruce and another. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court, Carter County; S. H. Russell, Judge.</p> <p>Action between M. L. Purvine and Akers Township, in Carter County, Okla. Judgment for the latter, and the former brings error.</p>

Error from District Court, Stephens County; Prank M. Bailey, Judge. Action by L. M. Burks against Charles Arnold, with garnishment against T. J. Presley and others. Judgment against defendant and the garnishees, and from the overruling of their motion to vacate the judgment, defendants bring error.

<p>Appeal from County Court, Harper County ; R. H. Nichols, Special Judge.</p> <p>Action by A. S-. McBride against A. E. Foote. Judgment for defendant, and plaintiff appeals.</p>

Error from District Court, Harper County r W. C. Crow, Judge. In proceeding for sale of leased school' lands, Charles A. Little, purchaser, filed a protest as to the appraisement of improvements placed by D. H. Hallock, a lessee.

Error from District Court, Ouster County; Thos. A. Edwards, Judge. Petition by the State of Oklahoma, on relation of E. B. Combs and others, for a writ of mandamus against George A. Meachem. Jr., Superintendent of Public Instruction of Custer County. Demurrer to the evidence sustained, and petition denied, and plaintiffs ■bring error.

Error from District Court, Oklahoma County ; Edward Dewes Oldfield, Judge. Action by A. E. Tidd against A. J. Hen-thorn, J- F. Kellerby, and P. M. Mowry. Judgment for plaintiff, and defendants Hen-thorn and Kellerby bring error.

<p>(Syllabus by the Court-)</p> <p>1. Banks and Banking — Check—Knowledge of Depositor’s Signature.</p> <p>A bank upon which a depositor therein draws a cheek is charged with knowledge of the depositor’s signature.</p> <p>2. Same — Forged Check — Right to Payment.</p> <p>Where a signature to a bank check is forged or made without authority of the pen son whose signature it purports to be, it is wholly inoperative, and no right to enforce payment thereof against any party thereto can be acquired through or under such signature, unless the party against whom it is sought to enforce such right is precluded from setting up the forgery or want of authority.</p> <p>3. Trial — Instructions—Irrelevant Issue.</p> <p>It is error for the trial court to instruct the jury upon an irrelevant issue, not raised by the pleadings or of which there is no evidence. when the instruction is calculated to mislead the jury.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Case-Made—Notice.</p> <p>Where plaintiff in error has prepared and served a ease-made, and has given the prescribed notice of the time and place that same will be presented to the trial judge for settlement and signature, and the trial judge is absent at such time and place, said notice becomes functus officio, and before such case-made can be legally settled and signed another notice of the time and place of settling and signing must be served upon the opposite party.</p>

<p>(Syllabus by the Court.)</p> <p>1. Courts — Mandamus in Appellate Court— Matters of Public Right — Delivery of Notaries’ Commissions.</p> <p>The delivery of commissions to notaries public throughout the state and the refusal of the secretary of state to deliver such commissions to the persons appointed by the Governor is pu-blici juris, and this court will entertain an original action brought by the state, upon relation of the Attorney General, for mandamus directing the secretary to deliver the commissions.</p> <p>2. Mandamus — Public Officers— Ministerial Duties.</p> <p>It is the duty of the secretary of state to deliver the commissions to the notaries public appointed by the Governor of the state, and this duty is ministerial. Upon the refusal of the secretary to perform this duty, a writ of mandamus may issue from the court to compel him to do so.</p> <p>3. Same.</p> <p>A writ of mandamus may lawfully issue from a court having jurisdiction to compel an executive officer to perform a mere min-isteral act which the law imposes upon him the duty to do.</p>

<p>(Syllabus by the Court.)</p> <p>1. Pleading — Petition—Striking Parts.</p> <p>Record examined, and held, that the trial court did not err in overruling defendant’s motion to strike certain portions of plaintiff’s petition.</p> <p>2. Appeal and Error — Misjoinder of Parties Plaintiff — Failure to Object — Waiver.</p> <p>By virtue of our liberal statute which allows amendments as to parties at any stage of the proceedings, the question of misjoinder of parties plaintiff, being an exception which, if taken below, might have been obviated by an amendment, will be held to be waived unless raised in some manner before or at the trial.</p> <p>3. Statutes — Construction of Statutes in Derogation of Common Law.</p> <p>In this jurisdiction it is provided by statute (section 2948, Rev. Laws 1910) that “the rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be liberally construed with a view to effect their objects and to promote justice.”</p> <p>4. Usury — Action to Recover — Necessity of Demand — Form.</p> <p>Although demand and refusal be a requisite to the right of the plaintiff to commence an action for the recovery of usury paid, yet, when the law does not require any particular form or condition for either, any demand will be sufficient which notifies the lender that the borrower intends to claim the benefits given him by the statute.</p> <p>5. Same — Statute.</p> <p>Record examined, and held, that the demand herein constitutes a substantial compliance with the proviso of section 1005, Rev. Laws 1910, which provides: “Provided, such action shall be brought within two years after the maturity of such usurious contract ; provided, further, that before any suit can be brought to recover such usurious interest, the party bringing such suit must make written demand for return of such usury.”</p> <p>6. Appeal and Error — Presentation of Grounds of Review — Motion For New Trial — Amount.</p> <p>The Supreme Court will not examine the record to ascertain whether the amount found by the court or jury is the correct amount, or, indeed, review any of the other alleged errors committed at the trial which are not presented in the lower court for reexamination by motion for new trial ox-otherwise.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Suit by the Universal Tire Protector Company against George W. Barnes. Judgment for plaintiff notwithstanding the verdict, and defendant brings error.

Error from County Court, Logan County; J. C. Strang, Judge. Action by the Fort Smith & Western Railroad Company against W. J. Black and others. Actions dismissed with costs, motion to retax costs overruled, and plaintiff brings error..

Error from District Court, Wagoner County ; Fred P. Branson, Judge. Action by David Roberson and Herbert Roberson, by their legal guardian and next friend, Ed. Knox' against Cinderella Hatcher and Eula Connelly, nee Hatcher, as heirs at law of Henry Hatcher, deceased, the original defendant. - From the decree awarding to the defendants a life estate to the lands in controversy, the defendants bring error.

Error from District Court, Nowata County ; T. L. Brown, Judge. Suit in equity by G. A. Rogers and O. O. Owens against John Ralston, in which on their motion J. H. Flippin, A. B. Crowell, F. M. Crowell, J. F. Flippin, and F. M. Reed, Jr., were made parties defendant.' Judgment for plaintiff Rogers, directing the defendants, other than Ralston, to execute to him an assignment of his interest, and judgment against plaintiff Owens, and plaintiffs bring error.

Error from 'District Court, Craig County; Preston S. Davis, Judge. Action by the Ratcliff-Sanders Grocer Company against the Bluejacket Mercantile Company, a corporation, and C. M. Condon. Judgment for defendants on a directed verdict, and plaintiff brings error.

<p>Insurance — Fire Insurance — Knowledge of Agent — Iron Safe Clause — Estoppel.</p> <p>The local agent of a fire insurance company having power to accept a risk and countersign and deliver a policy, with full knowledge that assured has no fireproof safe, but at the time was keeping and purposed thereafter to keep his books and inventories in the same building with the insured property at night, represented both before and after the execution and delivery of the policy that, if the assured slept and continued to sleep in said building, it would be unnecessary to keep such books and inventories tin a fireproof safe or at some other place at night, but the fact that assured slept in the building was sufficient compliance with the terms of the policy. Relying upon such representations, assured paid the premium, accepted the policy, and kept his books and inventories at night in the building where he slept, and was sleeping when fire communicated' from another building destroyed the property insured, together with his books and inventories. Held, that the knowledge of the agent was the knowledge of and binding upon the principal; and, having under such circumstances received and refained the premium, recognizing the existence and validity of the contract until loss had occurred thereunder, that notwithstanding the provisions of the policy requiring that such books and inventories be kept at night in a fireproof safe or at some other place not exposed to fire which would ignite or destroy such building, and in case of loss be produced for inspection, and that no officer or agent could waive any provision or condition of the policy, the company will not be permitted to escape liability by denying the integrity and repudiating the acts of its agent, but is es-topped to invoke in avoidance the very thing such agent represented to be compliance with the contract.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>(Syllabus by the Court.)</p> <p>1. Municipal Corporations — Ordinance-Partial Invalidity — Effect.</p> <p>Unless the invalid part of a city ordinance is so clearly severable from the valid portions thereof that it would be presumed that the lawmaking body would have passed the valid portion without the invalid, the entire ordinance must be held to be void.</p> <p>2. Same — license Tax.</p> <p>That part of the city ordinance of Oklahoma City providing for levying a license tax upon merchant auctioneers, designated as section 842, which attempts to exempt from the general operation of the ordinance any merchant or other person who has resided in and conducted a business in Oklahoma City, etc., being admittedly invalid, the balance of the act must also be held invalid, for otherwise a class of merchants or persons would be subjected to the payment of a license tax or be punished for nonpayment whom the lawmaking body of the city did not intend to be.</p>

<p>Error from Superior Court, Garfield County ; Dan Huett, Judge.</p> <p>Action by the Oloworth Development Company, a corporation, against E. B. Weatherly, Treasurer ’ and Ex Officio Tax Collector of Garfield County, Okla. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Comanche County; TV. J. Bay, Judge.</p> <p>Suit by E. H. Andruss against the Farmers’ State Bank of Temple, Okla. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Trade-Marks and Trade-Names — Particular* Business — Exclusive Use.</p> <p>One who produces or deals in a particular thing or conducts a particular business may appropriate to his exclusive use as a trade mark or name some symbol or name which has not been so appropriated by another, to designate the origin or ownership thereof; but he cannot exclusively appropriate any designation or part of a designation which relates only to the name, quality, or description of the thing or business, or the placo where the thing is produced or the business carried on.</p> <p>2, Paine — Unfair* Competition — Confusing Identity of Business.</p> <p>All practices between business rivals which tend to engender unfair competition are odious to the law and will be restrained by the courts. No man will be permitted to make use of signs or tokens which serve to confuse the identity of his business with that of another so as to mislead the public and divert business from his competitor to himself.</p> <p>3. Same — Action to Enjoin — Defenses.</p> <p>The existence of business concerns doing business under names of which the letters “O K” constitute a part, which refer to lines of business other than that in which plaintiff is engaged, cannot be urged as a defense to unfair competition engaged in by defendant.</p> <p>4. Same — Action—Counterclaim.</p> <p>_ In an action to restrain unfair competition. a counterclaim for damages by the defendant that plaintiff has wrongfully used the trade-name of defendant, and asking that plaintiff be restrained from the use thereof and required to pay damages for the infringement of defendant’s rights, is proper, and, if the allegations thereof are sustained, defendant is entitled to the relief sought.</p>

Error from District Court, Pontotoc County; A. T. West, Jtxdge. Action between Charles B. Sipes and others and J. M. Dickinson and others. Prom the judgment, Sipes and others bring error.