Volume 65 — Oklahoma Reports

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by Margaret Louise Vaughn, by her next friend .and guardian, F. A. Locke, and Nona Hooper, nee Vaughn, against T. Vaughn. ' Judgment for plaintiffs, and defendant brings error.

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by A. K. Bouse and Eva Bouse against Ira E. Stone and Alice Stone, executors of the last will and testament of J. R. Hurford, deceased, and M. C. Binion, Sheriff. Judgment for defendants, and plaintiffs bring error.</p>

<p>Error from District Court, Wagoner County; Fred P. Branson, Judge.</p> <p>Action by Sarah E. Primous against D. E. Wertz and another. There was a judgment for defendants, and plaintiff brings error.</p>

<p>Taxation — Lands Subject — School Lands.</p> <p>A vendee of school lands of the state, in possession under a contract of sale with the commissioners of the land office at the date of the assessment, is the owner thereof within the contemplation of section 7307, Revised Laws 1910, for the purpose of taxation; and such vendee cannot avoid the payment of taxes upon such lands, assessed for taxation at their fair cash value, estimated at the price they would bring at a fair voluntary sale.</p> <p>(■Syllabus by Campbell, C.)</p>

<p>Error from District Court, Seminole County ; Tom D. MeKeown, Judge.</p> <p>Action in replevin by the Farmers’ National Bank of Wewoka, Okla., against J. W. H. Jones. Judgment for plaintiff, and defendant brings error.</p>

Error from County Court, Atoka County; Baxter Taylor, Judge. Action by Mahlon F. Manville and another against the Le Flore-MeCasland Abstract & Realty Company -and others. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action by W. E. Dixon against J. O. Davis, in which Rina Henderson and Bud Henderson were made parties defendant. Judgment for plaintiff, and defendants Henderson bring error.

<p>1. Appeal and Error — Judicial Sales — Effort of Reversal.</p> <p>Where personal property is sold under an order of sale issued out of a district court upon an erroneous judgment, which is not superseded, and which afterwards is reversed by this court, held: (1) That an action for conversion will not lie against the plaintiff in said order of sale; (2) that the defendant in such order of sale, is entitled to restitution, and in an action, though designated by the pleader as an action for conversion, recovery may be had for restitution, if the allegations in the petition are sufficient to sustain such action; (3) that the measure of restitution which the defendant is entitled to recover is the amount realized by the plaintiff at such sale, and not the value of the property at the time of the sale.</p> <p>2. Judicial Sales — Effect of Reversal.</p> <p>Though a judgment be erroneous, it is the act of the court, and unless superseded, until reversed, constitutes sufficient justification for all acts done in its enforcement, and affords complete protection to one who acts in reliance upon the adjudication.</p> <p>3. Appeal and Error — Supersedeas Bond— Execution.</p> <p>A supersedeas bond executed after an erroneous jugdment has been carried into effect, by sale of property, under an order of sale issued thereunder, has no legal effect upon such sale.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Proceeding against the City of Ardmore, Okla., L. Y. Mullen, Mayor, and others, by C. E. Fraley and others. Judgment for Fra-ley and others, and the City and others bring error.

<p>Error from District Court, Mayes County; Preston S. Davis, Judge.</p> <p>Action by P. C. Holt against Elijah P. Spicer. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Kay Oounty; W. M. Bowles, Judge.</p> <p>Action by S. T. Porter against S. J. Ed-mondston and the Eirst National Bank of Blackwell, Okla. ■ Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Coal County; Bobt. M. Rainey, Judge. Action by J. M. Dillon administrator of the estate of Scott Dillon, deceased, against the Polsom-Morris Coal Mining Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by the Oklahoma State Bank against the Antrim Ltimber Company. Jiiclgment for plaintiff, and defendant brings error.</p>

<p>1. Landlord and Tenant — Rent—Assignment of Lease.</p> <p>Where one, enters into a lease contract whereby he covenants and obligates himself to - pay rent, the assignment of the lease by him and the agreement of the assignee to fulfill the covenants of the lease, the payment ,of the rent as same matures and the acceptance thereof by the landlord, does not release the lessee1 from the terms of his lease.</p> <p>2. Novation — Requisites.</p> <p>In order to show a novation of a contract, there must be a substitution of the new and a release of the old tenant by the agreement of the parties or the existence of such facts and circumstances as to create a surrender and acceptance of the leased premises by operation of law, and the evidence here examined, and it is held, same fails to establish a novation.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from District Court, Cotton County; Cham Jones, Judge.</p> <p>Action by Otto Coley against S. L. De Spain. There was judgment for plaintiff, and defendant brings error.</p>

<p>1. Indians — Indian Lands — Contracts—Validity.</p> <p>In a suit to enforce tbe collection of a promissory note, where tbe answer and tbe evidence disclose that the consideration thereof was a sale of tbe improvements on and possession of lands held by tbe promisee in violation of Act Cong. July 1, 1902, c. 1362, 32 Stat. 641, tbe judgment of the court denying recovery was proper, for tbe contract of sale was unlawful and void.</p> <p>2. Bills and Notes — Validity—Public Policy.</p> <p>Where an act is absolutely prohibited by statute or is contrary to tbe public policy of the state, all notes or contracts given in furtherance of said act are null and void.</p> <p>(Syllabus by Hooker, C.)</p>

Error from County Court, Pittsburg County; S. E. Brown, Judge. Action by the Goodner-Horne Company, a corporation, against the Strong Produce Company, in which the American National Bank of McAlester was garnished and the Kansas National Bank intervened. There was a judgment for plaintiff, and the inter-vener brings error.

Error from District Court, Osage County; A. R. Musseller, Special Judge. Action by John Kenny, plaintiff, against Laban Miles and others, defendants. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Ottawa County; Preston S. Davis, Judge.</p> <p>Action by R. W. Ashton against Charles F. Noble and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from County Court, Love County; J. H. Hays, Judge.</p> <p>Action by Will Barnes, by his next friend, Newt Barnes, against J. S. Mullen and J. H. Gregory, which was dismissed as to Gregory. There was a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Washington County; R. H. Hudson, Judge.</p> <p>Action by D. C. Campbell against the Federal Oil & Gas Co. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Master and Servant — Injury to Servant —Defense—Contributory Negligence.</p> <p>In an action for damages for injuries alleged to have resulted from a violation of a statutory duty imposed upon a master, the contributory negligence of the person injured may be urged as a defense thereto, unless such -defense is excluded by the statute. J-o-nes v. Oklahoma Planing Mill Company, 47 Okla. 477, 147 Pae. 999. ^</p> <p>2. Same — Lack of Evidence — Instructions.</p> <p>The answer here is sufficient to present tho defense of contributory negligence, but in the absence -of -any evidence tending to sustain the same the trial court did not err in refusing to submit that issue to the jury.</p> <p>3. Master and Servant — Action for Injury— Sufficiency of Petition — Violation of Statutory Duty.</p> <p>The petition in this case examined, and it is held the same is sufficient to bring the cause of action within the statute imposing certain duties upon the master, although the statute is not referred to expressly or by its terms.</p> <p>4. Same — Defenses—Assumption of Risk.</p> <p>For a violation of a statutory duty, the defense of assumed risk is not an available plea, but the same is a valid defense to a violation of a common-law duty.</p> <p>5-7. Appeal and Error — Evidence.</p> <p>5,6, and 7, same as 1, 2, and 3 in Federal Oil & Gas Company v. Campbell, 65 Okla. 49, 183 Pac. 894, this day decided by this court.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Appeal and Error — Briefs—Rules of Court— Reversal.</p> <p>Where plaintiff in "error has served and filed his brief in compliance with the rules of this court, and the defendant in error has neither filed a brief nor offered any excuse for such failure, the court is not required to search the record minutely to find some theory upon which the judgment of the trial court may be sustained, but may, where the brief appears reasonably to sustain the assignments of error, reverse the judgment in accordance with the prayer of the petition in error.</p> <p>('Syllabus by Campbell, C.)</p>

<p>1. Pleading — Objections—Departure.</p> <p>The proper method of objecting to a departure in pleading, in this jurisdiction, is by a motion to strike.</p> <p>2. Same — Waiver of Defects.</p> <p>. Where the petition alleged that certain conveyances were void because secured by fraud, and while the grantor was a minor, and the answer was a general denial and a cross-petition alleging the competency of the grantor to convey, and that the conveyances were made upon full and fair consideration, and a reply was filed alleging that only a small part of the purchase price for the land had been paid, and asking that, if the conveyance should be sustained, judgment for the balance of the purchase price be rendered, and that the same be declared to be a lien upon the land, held, that the allegations of the reply constitute a departure, and that the same coiild not be taken advantage • of by objection to the introduction of evidence, or a demurrer to the evidence, and that the defendant waived the defect by failing to move to strike the reply, and by going to trial on the issues thus raised.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>Subrogation — Right—Fraud.</p> <p>One who defrauds or assists in defrauding another out of his property is not entitled in equity to be subrogated to the rights of mortgagees whose debt has been satisfied by such fraudulent grantee while in possession.</p> <p>(Syllabus by Burford, C.)</p>

<p>1. Trusts — Express Trust — Personal Property — Creation by Parol.</p> <p>An express trust in personal property may be created -by parol where there is an immediate delivery of the property to the trustee, followed by an actual and continued change of possession thereof.</p> <p>2. Pledges — Elements — Right of Redemption.</p> <p>It is an essential element of a pledge that there should be a right of redemption in the pledgor.</p> <p>3. Pledge's — Principal and Agent — Trusts— Personal Property — Action for Conversion — Delivery for Sale.</p> <p>The absolute transfer and delivery of personal property to a third person, with directions to sell the same and apply all the proceeds to the payment of certain debts of the owner thereof, creates a trust rather than an agency, or a pledge, and vests the trustee, accepting such trust, with the right to maintain an action for the conversion thereof.</p> <p>4. Trulsts — Property Subject — Trust Property — Fraud.</p> <p>In the absence of facts showing such a transfer and delivery to be fraudulent as to creditors, the trust property, after delivery thereof to the trustee, may not lawfully bo seized in attachment against the creditor of the trust brought by one of his general creditors.</p> <p>5. Appeal and Error — Review—Theory of Case Below.</p> <p>Although a plaintiff in error is here held to his theory of the case advanced in the court below, the same rule does not apply to a defendant in error so far as to work a reversal of a judgment, proper under the pleadings, evidence, and instructions, because defendant in error seeks in his brief to support such judgment upon an untenable theory.</p> <p>(Syllabus by Burford, O.)</p>

<p>Error from District Court, Beaver County ;'W. C. .Crow, Judge.</p> <p>Action by Alexander J. Dickson against Seward K. Lowe to vacate judgment. Judgment for defendant, and -plaintiff brings error.</p>

<p>Error from District, Court, Kiowa County; Thomas A. Edwards, Judge.</p> <p>Action by the City of Hobart, Okla., against the National Surety Company. Judgment for plaintiff; and defendant brings error.</p>

<p>Error from District Court, Carter County; Stilwell H. Russell, Judge.</p> <p>Action by E. A. Davidson against the Ard-more State Bank. Judgment for plaintiff, and he brings error.</p>

Error from District Court, Jefferson County; Will Linn, Judge. Action by R. W. Hope and Ike Killings-worth, doing business under the firm name and style of Hope & Killingsworth, agains( T. M. Vaught and C. S. Wade, doing business under the name of T. M. Vaught. Judgment for plaintiffs, and defendant O. S. Wade brings error.

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by Phoebe Coleman, by her legal guardian, R. M. Wilson, against William Battiest. There was a judgment for defendant, and plaintiff brings error.

Error from District Court, Carter County; W. F. Freeman, Judge. Suit by S. B. Burnett and others against the Oklahoma State Bank of Wapanucka. Judgment for plaintiff, and the Oklahoma State Bank of Wapanucka, after the overruling of its motion for new trial, brings error.

<p>Divorce — Foreign Judgment — Conclusiveness —Deturee of Circuit Court of Oregon.</p> <p>A decree of a circuit court of the state of Oregon, in a suit for divorce in which both parties appeared, which attempts to settle the defendant’s equitable rights to lands' in Oklahoma, in so far as such decree relates to the lands in Oklahoma is coram non judice and void and as such is not res adjudicata of the same claim in an action in Oklahoma between the same parties and involving the same land.</p> <p>(Syllabus by Burford, C.)</p>

Error from District Court, Lincoln County; Chas. B. Wilsoii, Jr., Judge. Action by the Glen Lumber Company against W. H. Maston; Fred Perkins, and another, receivers of the plaintiff company, substituted as plaintiffs. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Cleveland County; F. B-. Swank, Judge. Action by Mary M. Arbogast for herself and as guardian, and others against the Continental Beneficial Association. Judgment for plaintiffs, and defendant brings error.

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action by the National Life Insurance Company against B. E. Silver and others. Prom the judgment, plaintiff brings error,</p>

Error from District Court, Creek County; Wade -S. Stanfield, Judge. Action toy Martha Miller against J. W. Thompson (No. 5024), and action by said Martha Miller against Samuel Bright -and others (No. 5023). Judgment for defendants and plaintiff -brings error.

<p>Error'from District Court, Pontotoc County ; Tom D. McKeown, Judge.</p> <p>Action by the Deming Investment Company against James E. Grigsby and others. Judgment for defendants, and plaintiff' brings error.</p>

Error from District Court, Harmon County ; Frank Mathews, Judge. Suit between T. M. Huffhines and others and T. A. Sheriff and others. From a judgment awarding relief to both parties with injunction, etc., Huffhines and others bring error.

<p>Indians — Allotments—Descent .and Distribution.</p> <p>Syllabus same as in Thompson v. Cornelius, 53 Okla. 85, 155 Pac. 602.</p> <p>(-Syllabus by Huggins, C.)</p>

<p>Error from District Court, Pawnee County.</p> <p>Action by the First National Bank of Cleveland against J. B. Coates. From an order dissolving an attachment issued and levied in said action plaintiff brings error.</p>

<p>Error from District Court, Pawnee County ; L. M. Poe, Judge.</p> <p>Action by Elizabeth Lucas and others against W. R. Lucas and others. Judgment for defendants, and plaintiffs bring error.</p>

<p>1. Principal and Surety — Liability of Surety —Note.</p> <p>The general liability of a surety upon a note, account, or bond, is not conditioned upon .the exercise of diligence by the holder of the obligation to collect of the principal, and the negligence or passive inactivity of the holder is not a defense available to the surety.</p> <p>2. Same — Proceedings Against Principal— “Require” — Statute.</p> <p>The term “require,” as used in section 1058, Rev. Laws 1910, which provides that “a surety may require his creditor to proceed against the principal, * * * and if in such ease the creditor neglects to do so, the surety is exonerated to the extent to which he is thereby prejudiced,” means, to demand; to insist upon; to claim as by right and authority; to exact; to claim as indispensable, a synonym as understood by its use in this section, for exact; direct; order, and a simple suggestion to, or request of, the creditor will not suffice.</p> <p>3. Same — Request to Sue Principal.</p> <p>The failure of the payee of a promissory note to sue the principal, upon the oral request of the surety sued, made jo the collector or attorney of the creditor, who had the note for collection, without any showing that the collector or attorney was authorized by the creditor to take legal proceedings for the collection of the note, or that such request or noticé was communicated to the creditor by the collector or attorney, will not operate as a release of the surety sued, even though the principal at the time the request was made was solvent and amply able to pay the note and in the meantime, he had become insolvent, for the reason that it is the duty of the surety upon thé failure of the principal to pay the note when due, to pay the same and pursue his remedy against the principal to reimburse himself for the amount paid as such surety for his principal. •</p> <p>('Syllabus by Rqbberts, O.)</p>

<p>Error from District Court, Tillman County ; T. P. Clay, Assigned Judge.</p> <p>Action by Loula M. Alexander against Dee Alexander -and J. W. Alexander. Judgment for plaintiff, and defendant Dee Alexander brings error.</p>

<p>Error from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by Buel, Pryor & Daniel against the St. Louis & San Francisco Raiiway Company. Judgment for defendant, and plaintiffs bring error.</p>

<p>1. Negligence — “Proximate Cause.”</p> <p>An act is the “proximate cause” of an injury when such injury was the natural and probable consequence of the act, and one that ought to have been foreseen in the light of the attending circumstances.</p> <p>2. Same — Question for Court or Jury.</p> <p>Ordinarily the question of proximate cause is one of fact for the jury, but where the facts are not in dispute and reasonable men cannot differ on the question, it may become one of law for the court.</p> <p>3. Master and Servant — Injuries—Burden of Proof.</p> <p>In order to recover damages for an injury because of negligence, the burden is on the plaintiff, not only to show negligence, but to prove that such negligence was the proximate cause of the injury, which should have been foreseen in the light of the attending circumstances.</p> <p>4. Carriers — Personal Injury — Question for Jury — Proximate Cause.</p> <p>Plaintiff intended to leave M. on a train scheduled to depart at 6:45 p. m. He, being up town five or six blocks from the depot a few, minutes before 6:40, called the ticket agent over the telephone and asked about the train, and was told that it was late and would not leave “until about 7:15 or later.” He started for the station about 6:50, and when he arrived within 60 or 75 feet of the station platform saw the train moving out, and ran and attempted to get upon it. He grabbed the iron railing about the steps with his left hand and the handhold on the gate with his right hand, and succeeded in getting both feet upon the steps, when the gate swung out and he fell off and rolled under the car and was injured. Held, that, assuming that the agent gave incorrect information as to the time of the departure of the train, and that the handhold of the gate was defective, and that these acts constituted negligence on the part of the railway company, it does not follow that such negligence was the proximate cause of the injury.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>1. Contracts — Consideration — Forbearance.</p> <p>Forbearance in the prosecution of an action is sufficient consideration for a contract.</p> <p>2. Guaranty — Acceptance—Notice.</p> <p>A mere offer to guaranty is not binding until notice of its acceptance is communicated by the guarantee to the guarantor, but an absolute guaranty is binding upon the guarantor without notice of acceptance.</p> <p>3. Bilis and Notes — Liability—Evidence.</p> <p>The evidence in this case examined, and it is held, that at the time John T. Hays executed the notes sued upon it was not his_ intention to simply guarantee the obligation, but to assume absolute liability therefor, and his liability upon said notes was not dependent upon anything else being done before he could be held liable therefor, but became his personal absolute obligations,.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Fraud — Right of Action — Forbearing Collection oi| Debt.</p> <p>A general creditor may not maintain an action against a third party for fraudulently inducing such creditor to forbear legal action lo collect his debt.</p> <p>(Syllabus by Burford, C.)</p>

Error from County Court, Blaine County; Ed. Baker, Judge. Action by Mac McClelland, administrator or estate of Elizabeth Miller, deceased, against S. E. Peck. There was a judgment for plaintiff, and defendant brings error.

Error from County Court, Creek County; Vick 'S. Decker, Judge. Action by Monroe Francis, as guardian of Davis Williams, against Geo. W. Williams and another. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; W. R. Taylor, Judge. Action by G. P. Tull and L. H,. Tull, partners under the name of Tull & Son, and the Brown-Dingee Investment Company, against Eli Brown and another. Judgment for plaintiffs, motion for new trial overruled, and defendants bring error.

•Error from District Court, Roger Mills County; T. P. Clay, Judge. Action by Mary E. Petty ■ and others against George F. Fisher and others. Judgment for plaintiffs, and defendant George F. Fisher brings error.

Error from District Court, Mayes County; Preston S. Davis, Judge. Action by W. J. Whitaker against H. M. Chestnut. Judgment by default, defendant’s motion on his special appearance to vacate and set aside the judgment sustained, and plaintiff files petition in error and transcript.

Error from District Court, Haskell County ; W. H. Brown, Judge. Action by Henrietta Woods, an incompetent, by J. K. McKinney, her guardian, against Fred Cotton and others. Judgment for plaintiff, motion for new trial overruled, and defendants bring error.

<p>Appeal and Error — Failure to File Brief— Dismissal.</p> <p>“Where the plaintiff in error fails to file a brief, as required by the rules of the Supreme Court, and offers no excuse for such failure, the appeal will be dismissed.”</p> <p>(Syllabus by Collier, O.)</p>

<p>Error from District Court, Muskogee County; R. P. de Graffenried, Judge.</p> <p>Action by Jeff D. Ellis against the Mid: Continent Oil & Gas Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Replevin — Sheriffs and Constables — Redelivery Bond — Liability on Official Bond.</p> <p>The redelivery bond in an action of re-plevin before a justice of the peace, provided for in section 5403, Rev. Laws 1910, must be taken by the officer levying the writ of re-plevin, and a redelivery bond taken and approved by a constable, who did not levy the writ of replevin, and who has not, as an officer, succeeded to the possession “of the property under said writ, is not taken by said constable in the performance of his official duties. His apx>roval thereof is of no effect, and imposes no liability upon his official bond.</p> <p>2. Trial — Demurrer to Evidence.</p> <p>Where the evidence of plaintiff, together with such, inferences and conclusions as may reasonably be drawn therefrom,' does not warrant a recovery against the defendant, a demurrer to the evidence is properly sustained.</p> <p>(Syllabus by Rummons, C.)</p>

Error from County Court, Cleveland County; F. B. Swank, Judge. Action by Lewis J. Brosius and E. Brosius, a corporation doing business under the firm name of L. J. Brosius & Co., -against the First National Bank of Noble. Judgment for defendant, motion for new trial overruled, and plaintiffs bring error.

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>• Action -by N. S. Sherman Machine & Iron Works against Sam Elzo, D. P. Sparks, and R. L. Flynn. Judgment for defendants, and plaintiff appeals.</p>

<p>Limitation of Actions — 'Pleading—Statute— Necessity.</p> <p>Where the defendant answers by a general denial and does not demur at any stage of the proceedings, the statute of limitations is not available to him as a defense.</p> <p>(Syllabus by Burford, C.)</p>

Error from District 'Court, Pontotoc County; Tom D. McKeown, Judge. Action by Walter B. Winters, a minor, by J. M. Daggs, next friend, against the Oklahoma Portland Cement Company. Judgment for defendant, and plaintiff -brings error.

<p>1. Mortgages — Foreclosure—Appraisement— Statutory Provision.</p> <p>Section 4016, Rev. Laws 1910, Ann., provides, in substance, that when the words “and waive the appraisement” are written or printed in a mortgage on real estate, in case of foreclosure and sale of the premises under said mortgage, no order of sale shall issue thereunder for six months after the date of judgment, and the premises must be sold without appraisement.</p> <p>2. Appeal and Error — Mortgages—Foreclosure on Decree — “and Waive the Appraisement” — Surplusage—Affirmance.</p> <p>Where, in a decree of foreclosure, the mortgage has written or printed therein, “and waive the appraisement,” and the order of sale has not been issued until the expiration of six months from the date of judgment, and the journal entry provides that said premises shall be sold “according to the provisions of law relating to the sale of real estate under execution,” such words will be held to mean that said premises shall be sold in accordance with the stipulation in the mortgage “without appraisement,” and where appraisement has been made in the proceedings to sell said real estate under such foreclosure, such appraisement will be regarded as surplusage, and, if necessary, this court on appeal may direct the journal entry and entire record to'’be modified by striking such provisions out of the record, and if it appears from the entire record that all other proceedings in foreclosure ■ have been duly and regularly taken, and performed, and that there has been no miscarriage of justice nor substantial violation of any constitutional or statutory right, the judgment of the lower court in confirming the sale will not be reversed not set aside, but, on the contrary, will be affirmed by this court.</p> <p>3. Appeal and Error — Harmless Error.</p> <p>. The court, in every stage of action, • must disregard any error or defect in the pleadings or proceedings which does not affect the substantial rights of the adverse party; and no judgment shall be reversed or affected by reason of such error or defect.</p> <p>(Syllabus by Robberts, 0.)</p>

<p>Error from District Court, Osage County ; R. H. Hudson, Judge.</p> <p>Action by J. W. Cates against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Charles Winte against A. W. Boyd and T. M. Daniel and wife, in which H. F. Yulbrock and another filed cross-petitions against defendants. Judgment for plaintiff and cross-petitioners, and defendant A. W. Boyd brings error.

<p>Appeal and Error — Weight of Evidence — Reversal.</p> <p>Where plaintiff in error appeals from a decree in equity on the question of the weight of the evidence, this court will not weigh the evidence and reverse the judgment appealed from, unless it is clearly shown that the trial court failed to consider uncontroverted evidence, or that the finding and decree are clearly against the weight of the evidence.</p> <p>(Syllabus by Johnson, O.)</p>

Error from District Court, Cleveland County; F. B. Swank, Judge. Action by the State of Oklahoma, on the relation .of J. D. Grigsby, County Attorney of Cleveland County, Okla., against A- R-Balch and others. Judgment for plaintiff, and defendant A. R. Balch brings error.

<p>Error from County Court, Ellis County; S. A. Miller, Judge.</p> <p>Action by Harry W. Webb against Harry Froage and Carl Meyers. There was judgment for the plaintiff, and the defendants bring error.</p>

Error from County Court, McIntosh County ; .Tas, W. Bobertson, Judge. Action by Jess W. Watts, Charles G. Watts,* and Charles A. Cook against Lucien Houston and others. There was judgment for the defendants, and plaintiffs bring error.

Error from ■ County Court, Cleveland County; B. F. Wolf, Judge. Proceeding by Cleveland County, by and through its County Commissioners for and on behalf of the County and the State of Oklahoma and J. P. Whittinghill, Tax Inquisitor in and for said County, against the Oklahoma Sanitarium Company (now Oklahoma State Hospital). From a judgment of the county court on appeal from a dismissal by the county treasurer dismissing the proceeding, the plaintiffs bring error.

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy, Judge. Action by B. B. Blakeney against B. F. Hamilton, as executor of the will of Samuel Bailey, deceased. Judgment for plaintiff and defendant brings error.

Error from District Court, Garvin County ; F. B. Swank, Judge. Petition by A. H. Shi for the probate of the will of Ellen Byford, deceased, opposed by Simeon Wesley and others. Judgment admitting the will to probate, and contestants bring error.

<p>Appeal and Error — Assignments of Error— Overruling of Motion for New Trial— Review.</p> <p>Where the plaintiff in error fails to assign as error the overruling of his motion for a new trial, the Supreme Court has no power to review errors alleged to have occurred during the progress of the trial.</p> <p>(Syllabus by Bleakmore, O.)</p>

Error from County Court, Rogers County; H. Tom Kight, Judge. Action by the State of Oklahoma to confiscate an automobile; L. A. Huppert, intervener, and claimant. Judgment for intervener, and the State brings error.

<p>1. Indians — Deeds—Validity—Act of Congress.</p> <p>A member of the Creek Tribe of Indians, upon the alienation of whose allotted lands restrictions imposed by federal enactment did not expire until August 8, 1907, in order to effectuate an agreement entered into before that time with her grantee, executed and delivered three deeds purporting to convey such lands on March 2, July 1, and August 9, 1907, respectively. Held, that such deeds were inefficient to convey title and void, as violative of an act of Congress approved April 26, 1906 (eh. 1876, 34 Stat. 144). then in force, section 19 of which provides: “And every deed executed before, or for the making of which a contract or agreement was entered into before the removal of restrictions. be and the same is hereby declared void.”</p> <p>2. Jury — Cancellation of Conveyance — Indians.</p> <p>A suit 'seeking the cancellation of such deeds on the ground that same were executed in violation of congressional enactment is one of equitable cognizance, wherein the parties are not entitled, as a matter of right, to a jury trial.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>1. Appeal and Error — Jurisdiction of Supreme Court — Order Overruling Motion for New Trial — Statute.</p> <p>TTnd°r the second subdivision of section 5236, Rev. Laws 1910, this court has jurisdiction to reverse, vacate, or modify an order overruling motion for new trial, notwithstanding the judgment has not been entered on the verdict, where there is a verdict in a case tried to a jury.</p> <p>2. Insurance — Statutes—Construction.</p> <p>Sections 3420-3434, inclusive, Rev. Laws of Oklahoma 1910, do not fix the contractual relations between insurance companies doing business in the state and their agents, but this is regulated by contract. The statutes above were not enacted to regulate the relations between insurance companies and their agents, but for the protection of the insuring public.</p> <p>3. Trial — Power of Trial Court — Reprimand of Witness.</p> <p>Trial courts in the exercise of their judicial prerogative have a right to reprimand a witness who, contrary to the admonition of the court, persists in making voluntary statements not elicited by his examination. The admonition, however, must not be done by word, sign; token, or gesture that would indicate the opinion of the trial court as to the merits of the case, or the truth or falsity of testimony of the witness reprimanded.</p> <p>(Syllabus by West, C.)</p>

<p>Error from District Court, Atoka County; Robt. M. Rainey, Judge.</p> <p>Action by S. T. Cypert against the Board of County Commissioners of Atoka County. Judgment for plaintiff, and defendant brings error.</p>

Error from District Coprt, Cherokee County; John H. Pitchford, Judge. Action by the Rounds & Porter Lumber Company, a corporation, against James P. Thompson' and another. Judgment for defendant Thompson and against the other defendant, and plaintiff brings error.

<p>Deeds — Merger—Breach of Covenants — Right of Action.</p> <p>E. entered into a written contract with M., by which it was agreed that E. wafe to convey to M. certain city lots, in consideration oí M.’s procuring to toe conveyed to E., toy one Brown, certain farming lands. M. caused Brown to convey to E., by warranty deed, the exact lands named in the contract. E. examined the deed and the abstract of title to the farming lands, and was satisfied therewith, and conveyed the city lots to M. It later developed that Brown had no title to 10 acres of the farming lands conveyed. Held, in a suit toy E. against M. for the value ¿f the 10 acres, that the original contract for the exchange of the properties was fully executed and merged into the final deeds of conveyance, and that E. mistook his remedy, and should have sued on the breach of the covenants in the deed from Brown.</p> <p>('Syllabus by Brewer, O.)</p>

Error from District Court, McIntosh County; R. W. Higgins, Judge. The ’Southwestern Surety Insurance Company, surety on the bond of King Walton, as guardian of Charlie Cartwright, appeals from a judgment of the district court, dismissing an appeal from the probate court, disapproving certain items claimed as credits by the guardian.

Error from District Court, Okfuskee County; Geo. W. Crump, Judge. Action by Elnora Thompson, nee Elnora Barnett, against C. T. Huddleston, Scottie Herriford, C. H. Dixon, Porter Grimes, and T. M. Haynes to cancel certain conveyances as clouds upon plaintiffs title, in which Dixon and Grimes filed a cross-petition against Herriford and Haynes, and in which, after the death of the defendant Grimes, the potion was revived by his widow, heirs, and administrator.

<p>Error from County Court, Kingfisher County ;R. F. Shutter, Judge.</p> <p>Action by L. M. Gray and another against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by Stella Jackson, minor, by her guardian and next friend, Henry Ramsey, against P. E. Hickman and James Johnson, sureties on the bond of Robert Maxwell, her former guardian. Judgment for plaintiffs, and defendants bring error.</p>

<p>L Limitation of Actions — What Law Governs — Contract.</p> <p>As a general rule, since statutes of limitation affect the remedy only, an action on contract is governed by the statutes of limitation of the forum, and not by the lex loci contractus, nor the lex domicilii.</p> <p>2. Same — Note—Bar of Statute — Burden of Proof.</p> <p>In an action upon a promissory note, which upon its face shows that it is barred by the statutes of limitation of this state, and to which the defendant had pleaded such statutes as a bar, the burden is upon plaintiff to plead and prove facts relieving such action from the bar of the statutes of limitation.</p> <p>3. Same — Residence of Defendant.</p> <p>In an action upon a promissory note executed An the state of Ohio, which, upon its face, appears to be barred by the statute of limitation of this state, and to which action defendant pleaded the statute of limitation of Oklahoma as a bar, it is not sufficient for plaintiff to plead and prove that such action has not been barred in the state of Ohio, and that defendant was a resident of the state of Ohio; but it must be made to appear by pleading and proof that the defendant had not been within the state of Oklahoma a sufficient time to bar said' action under our statutes of limitation.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Animals — Trespass by Cattle — Liability.</p> <p>Where one without authority turns his cattle into the field of another, and said cat-tie trespass thereon and damage the property, a judgment exonerating the owner of said cattle from liability is contrary to the law and the evidence, and cannot be sustained.</p> <p>2. Same — Nominal Damages.</p> <p>In such a case nominal; damages, if no more, may be recovered.</p> <p>3. Same — Punitive Damages — Defenses.</p> <p>The good faith of the party who permitted his cattle to trespass upon the land of another may be shown in order to relieve him from punitive damages, and to this end he may show that he relied upon a contract with a third party as to his right to turn his cattle into said premises, provided ho acted upon the belief that said third party had the right to - make said contract.</p> <p>4. Same — Measure of Damages — Realty.</p> <p>The measure of damages for injury to real estate is correctly defined in Enid v. Wiley, U Okla. 818, 78 Pac. 96.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Rogers County; W. J. Campbell, Judge. Action by Cudjo Barnett, a minor, by A. D. Evans, his guardian, against Frank M. Courtney and others. Judgment for plaintiff, and defendants F. M. Courtney and Erastus K. Evans bring error.

Error from County Court, Ottawa County ; Vern B. Thompson, Judge. Action by the Gaines Bros. Company against Edgar Baker and another. There was a judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Stephens County ; Prank M. Bailey, Judge.</p> <p>Action by O. M. Joiner and another against Thomas M. O’Quinn and another. There was a judgment for plaintiffs, and defendants-bring error.</p>

Error from District Court, Pawnee County; Conn Linn, Julge. Action by R. G. Gillespie against the United States Supply Company, a copartnership, and Jacob Bloch, B. M. Bloch, and C. C. Blair, copartners doing business as the United States Supply Company. There was a judgment for plaintiff, and defendants bring error.

Error from County Court,- Stephens County; J. W. Marshall, Judge. Action by J. B. Mason and others, as the Board of County Commissioners of Stephens County, - Okla., on the relation of the state of Oklahoma, against Prank Lawrence and others. There was a judgment for plaintiffs, and defendants bring error.

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Tom Fields- against W. A. Jolly. There was a judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Alfalfa County; J. C. Robberts, Judge. Action by the Helena Society of the Free Methodist Church of North America against Charles Wilber Dixon and others. Judgment for plaintiff, and defendants bring error.

Error from District Court, Canadian County; John W. Hayden, Judge. Action by the American Surety Company of New York against Thomas A. Gibson and others. There was a judgment for defendants, and plaintiff brings error.

<p>1. Partnership — Right of Parties.</p> <p>One general partner cannot maintain an action at law against another to recover an amount claimed by him by reason of partnership transactions until there has been a final settlement of affairs of the partnership by discharging its liabilities, collecting its assets, and definitely -ascertaining the surplus to a share of which he is entitled, and until this is done the partner’s only remedy is to apply to a court of equity for -an accounting and ascertainment of such balance.</p> <p>2. Equity —Retention of Jurisdiction — Authority of Courts — Settlement of Partnership Affairs.</p> <p>Under the law and the evidence here the plaintiff was not entitled to maintain this suit, to recover a definite sum, as a settlement of the partnership affairs had never been had against his partner, but, inasmuch as the defendant below in his pleadings sought the aid of a court of equity to make a settlement of the partnership affairs, and the trial court, by consent of the parties hereto, treated the same as a proceeding in equity for that purpose, the court had jurisdiction and should have settled the partnership by ordering its liabilities discharged, collecting its assets, and ascertaining the plus and ordering a division of its property or proceeds.</p> <p>3. Same — Submission to Jury;</p> <p>The trial court had the right to submit any question of fact to a jury upon which he desired the aid of the jury, and the finding of the jury was only advisory, and here the trial court adopted the finding of the jury as to the date of the formation of the partnership, and the evidence supports the same, hence that fact may be treated as settled here.</p> <p>4. Partnership — Actions—Judgment.</p> <p>The judgment here is not supported by the evidence, and no attempt made to settle the partnership affairs, hence this cause is reversed and remanded for that purpose, with directions to the trial court to accept the date of the formation of the partnership as found by the jury and trial court.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>Error from District Court, Choctaw County; Summers Hardy, Judge.</p> <p>Action by the First State Bank of Idabel against J. H. Davis and wife. There was a judgment for plaintiff, and defendants bring error.</p>

<p>I. Bail — Bond—Forfeitures—Judgment.</p> <p>There is involved in the forfeiture of a bail bond the determination by the court forfeiting tne bond that tbe defendant stood charged with a public offense, that the bond forfeited was executed to secure his release from custody pending his trial, or pending an appeal from a conviction, for said offense, and that the bond forfeited had been given in the particular case in which the defendant stood charged.</p> <p>2. Same — Petition in Action on Bond.</p> <p>A petition in an action to recover upon a forfeited bail bond, which bail bond fails to recite or describe the offense with which the defendant stood charged, is not demurrable because of such failure; the question raised by such demurrer having been adjudicated in entering judgment of forfeiture.</p> <p>(Syllabus by Rummons, 0.)</p>

<p>Error from District Court, Noble County: A. H. Huston, Judge. «</p> <p>Action by John W. Ray against the St. Louis & San Francisco Railway Company and E. J. Miller. Judgment for plaintiff, and defendants bring' error.</p>

<p>1. Witnesses Objection to Testimony —- Competency of Witness.</p> <p>An objection to the competency of testimony does not raise the question of the competency of a plaintiff’s wife to testify at all concerning the matter as to which inquiry is made.</p> <p>3.Principal and Agent — Powers of Agent— Emergency.</p> <p>A servant, acting in an emergency in the absence of his principal, and apparently for rhe protection of the interests of the principal, may frequently do things which transcend his usual authority, and they will be deemed to be authorized.</p> <p>3. Principal, and Agent — Witnesses—Wife’s Agency for Husband — Wife.</p> <p>A wife was directed by her husband to answer the telephone. Held, that she was thereby constituted his agent for the purpose of hearing any message intended for him, and conveyed on such telephone call, and to repeat such message to him. Held, further, that the wife was a competent witness in a suit brought by her husband to testify concerning the fact of such conversation, and to detail the message received. Whether she was a competent witness, under the last clause of subdivision 3, sec. 5050, Rev Laws 1910, to testify concerning any communication of such message by her to her husband, not -being raised, is not decided.</p> <p>4. Trial — Admission of Evidence — Responsiveness — Motion to Strike.</p> <p>It is not permissible for counsel to be quiet and allow evidence to come out and take advantage of it, if favorable, and, if not, to ask that it be stricken out. Still less can a party complain of the court’s refusal to sustain such a motion to strike when the testimony given is in direct response to one of his own questions.</p> <p>5. Appeal and Error-Harmless Error — Admission of Impeaching Evidence.</p> <p>The admission of evidence, which is competent' to impeach a witness, prior to any proper foundation therefor being laid, -will not be held to constitute prejudicial error, where afterward, during the course of the trial, a proper foundation therefor is laid.</p> <p>6. Trial — Admission of Evidence — Limitation of Purpose — Request.</p> <p>The general admission of evidence competent for 'purposes of impeachment, but otherwise incompetent, will not he held to he prejudicial error, where no request was made to limit the effect of the testimony to pur-puses of impeachment.</p> <p>7. Appeal and Error — Harmless Error — Remarks of Trial Court.</p> <p>Remarks of the trial court examined, and held not prejudicial. .</p> <p>8. Appeal and Error — Courts — Harmless Error — Instruction—Precedent."</p> <p>Whether or not an instruction, correct as an abstract statement of the law, but inapplicable to the facts of the case, was prejudicial to the right of plaintiff in error must be determined by this court upon the whole facts in each particular ease, and the determination will ordinarily not serve as a precedent for any other case, since the same instruction may be prejudicial in one case and not in another, depending upon the facts of each case and the circumstances under which it is given. A cause ought not to be reversed for misdirection of the jury in this regard, unless this court can say that such misdirection constituted a substantial violation of a statutory or constitutional right or probably resulted in a miscarriage of justice.</p> <p>9. Principal and Agent — Continuing Agency —Proof—Circumstantial Evidence.</p> <p>A continuing agency may be proven by facts and circumstances tending to show the existence of such agency both prior, and subsequent to the date of the transaction. Such facts and circumstances may properly include specific instances of conduct when sueh instances are sufficiently numerous to lóase thereon an inference of systematic conduct under substantially similar .cireumstanees so as to be naturally accountable for by a system-only and not a casual recurrence. The range of time preceding and subsequent to the event in question, within which such instances should have occurred in order to be admissible in evidence, is generally a matter in the judicial discretion of the trial court. Such circumstantial evidence is admissible even though there be direct testimony denying the existence of the agency.</p> <p>10. Same — Agency—Question for Jury — Evidence.</p> <p>Proper circumstantial facts tending to prove the existence of an agency beinv in evidence, and the agency being denied, the trial court was not in error in submitting the question of the existence of the agency to the jury, and in instructing them that they might take such facts and circumstances, as well as those surrounding the particular transaction, into account in determining whether or not an agency existed.</p> <p>Í Syllabus by Burford. O.)</p>

<p>Error from Superior Court, Pittsburg County; W. C. Liedtke. Judge.</p> <p>Suit by Robert I. Bond against the Amazon Fire Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Receivers — Sale Pending Foreclosure— Jurisdiction.</p> <p>A court of equity has power, in a suit to foreclose a mortgage on real estate, to order ' its receiver in charge of the property involved to sell such property, even in advance of a decree determining tne rights of the parties, but such power should be exercised with extreme caution, and never unless it is clearly apparent that a sale will be for the benefit of all parties whose rights are involved.</p> <p>2. Same.</p> <p>Record examined, and held not to justify an order to a receiver to sell real estate.</p> <p>(Syllabus by Burford, C.)</p>

Error from District Court, Carter County; A. Eddleman, Judge. Suit by George A. Parton and others against Choctaw Lowery and others. Judgment for plaintiffs, and defendants bring error.

, Error from District Court, Blaine County: Thos. A. Edwards, Judge. Elmer Albert Dunn and others appeal from an order refusing to vacate a forfeiture taken on an appeal bond.

Error from County Court, Oklahoma County ; William H. Zwick, Judge. Action by Della T. Giddings against the St. Louis & San Francisco Railroad Company, and James W. Lusk and others, receivers. Judgment for'plaintiff, and defendants bring error.

Error from District Court, Washington County; R. H. Hudson, Judge. Action by the Sun Drilling Company against the Atchison, Topeka & Santa Fe Railway Company and the St. Louis & San Francisco Railroad Company. Judgment against each ■ defendant, and they bring error.

<p>Error from District Court, Garvin County ; F. B. 'Swank, Judge.</p> <p>• Action by Garland F. Cooper against Jonathan J. Ewert. There was a judgment for plaintiff, and defendant • brings error.</p>

Error -from District Court, Woodward County; James B. Cullison. Judge. Action for unlawful detainer by Frank L. Fenton, administrator of the estate of Benjamin F. Fenton, deceased, against George Faust. From a judgment of the district court dismissing defendant’s proceeding in error from a justice court, defendant brings error.

<p>1. Trial — Instructions—Invasion of Province of Jury.</p> <p>It is error for the, court to instruct the jury as to what the evidence shows upon a question of fact to be determined by the jury.</p> <p>2. Same — Construction of Writings.</p> <p>It is the duty of the court to construe unambiguous written instruments introduced in evidence. Instructions submitting to the jury the construction of written instruments in evidence, which contain no ambiguities or uncertainties requiring explanation, constitute error.</p> <p>(Syllabus by Rummons, C.)</p>

<p>1. Bills and Notes — Consideration—Defense.</p> <p>A promissory note must be supported by a valid consideration; want or failure of consideration is a good defense in an action on a promissory note between the original or immediate parties.</p> <p>2. Same — Action on Note — Answer.</p> <p>In an action on a promissory note, where the answer contains a general averment without stating further facts that the note is without consideration, such answer is good against demurrer.</p> <p>3. Same — Defense—Demurrer.</p> <p>Where plaintiff, payee, brings action on a promissory note, and defendant, maker, pleads in his answer as a defense want of consideration, and plaintiff files a general demurrer to the answer of defendant, it is error for the trial court to sustain such demurrer.</p> <p>4. Pleading — Several Defenses — General Demurrer.</p> <p>. When a pleading contains more than one paragraph alleging more than one cause of action or defense, if the plaintiff states one cause of action or defense, it is error for the court to sustain a general demurrer to such pleading as an entirety.</p> <p>(Syllabus by Pryor, C.)</p>

Error from District Court, Woods County; W. C. Crow, Judge. Action for foreclosure by Nicholas Ulrich against Dayid B. Eck, H. G. Martin, and others. Judgment for plaintiff, and Joseph L. Duncan, purchaser, ipoved to have the sale confirmed, and the objection of H. G. Martin to confirmation of sale was sustained, and sale set aside, and the purchaser brings error.

<p>1. Guardian and Ward — Action on Bond— Joinder of Sureties.</p> <p>Wjhere a guardian, in addition to the bond given when he was appointed, gave two other bonds, as additional security for the performance of his duties as guardian, all of the sureties on the several bonds could be joined in one suit to recover the amount due from the guardian.</p> <p>2. Interest — Judgment — Accounting by Guardian.</p> <p>When a guardian on final account is found liable to his' ward, the amount of interest for which he is liable is 6 per cent per annum, and a judgment fixing the amount of such interest at 10 per cent, per annum is without authority of law.</p> <p>(Syllabus by Collier, 0.)</p>

Error from District Court, Creek County; Wade S. Stanfield, Judge. Action by William Harry, a minor, suing by his guardiaii, H. M. Ausmus, against Joe Abraham and others. Judgment for plaintiff, and defendants bring error.-

<p>1. Contracts — “Consideration for Promise.”</p> <p>' “Any. benefit conferred or agreed to be conferred upon the promisor by any other person to which the promisor is not lawfully entitled, or any prejudice suffered, or agreed to be suffered by such person, other than such as he is at the time of consent lawfully bound to suffer, as an inducement to the promisor, is a good consideration for a promise.’’</p> <p>2. Release — Consideration—Agreement.</p> <p>Plaintiffs contracted with defendant and another to drill an oil and gas well to the shallow sand, and when, in the performance of suth contract, the shallow sand was reached, the work on the well was stopped, and it was then agreqd by plaintiffs and defendant that defendant would employ plaintiffs to drill such well deeper, and pay them therefor at the rate of 90 cents per foot, and that plaintiffs would do such additional drilling and would release the defendant from liability for payment of the sum of $400, that being one-half of the sum due them for the former drilling, and look alone to the other for the payment of such sum. Held, that the agreement of the defendant to employ plaintiffs to do such additional drilling and to pay them therefor was sufficient consideration to support the promise of plaintiffs to release defendant from the payment of the said sum of $400.</p> <p>3. Trial — Directed Verdict — Evidence.</p> <p>It is error to direct a verdict for the plaintiffs where, admitting the truth of all the evidence given in favor of defendant, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent evidence to reasonably sustain a verdict should the jury find for the defendant.</p> <p>(Syllabus by Rummons, 0.1</p>

<p>1. Justices of the Peace — Dismissal of Appeal — Effect.</p> <p>“Where a judgment is rendered by a justice court, said judgment appealed to the county court and said appeal dismissed, the judgment of the justice court becomes res judicata.”</p> <p>2. Same — Restoration of Judgment.</p> <p>“Where an appeal is perfected from a judgment rendered by a justice court to the county court, and said appeal dismissed, the judgment rendered by the justice court is restored as if no appeal had been taken.”</p> <p>(Syllabus by Collier, O.)</p>

<p>Partnership — Existence of Relation — Question for Jury.</p> <p>When the question of the existence of a partnership is a matter of doubt to be determined by inference to be drawn from all the evidence, it is one of fact for the jury, and it is error for the court to direct a verdict for either plaintiff or defendant on this issue.</p> <p>(Syllabus by West, .0.)</p>

<p>1. Libel and Slander — Actionable Words— Injury to Profession or Calling.</p> <p>Publishing the fact that charges against a minister of the gospel (with no intimation of their import) were read and by unanimous vote sustained at a church conference, and that such church had withdrawn fellowship from him, is not libelous per se.</p> <p>2. Same — Petition—Special Damages.</p> <p>_ In an action in damages for libel the publication declared on is not libelous per se. A petition failing to allege special damage is fatally defective.</p> <p>(Syllabus by Bleakmore, C-)</p> <p>Thacker, X, dissenting.</p>

Error from County Court, Cotton County; J. C. Norman, Judge. Action by W. L. Moody and W. L. Moody, Jr., copartners as W. L. Moody & -Co., against A. W. Thompson, with cross-action by defendant. Judgment for defendant, motion for new trial overruled, and plaintiffs bring error.

Error from District Court, Grady County; Cham Jones, Judge. Action by John Simpson -and others against Levi Buck and others. Judgment for plaintiffs, and defendants bring' error

<p>■ Error from District Court, Major County; James W. Steen, Judge.</p> <p>Action by William McDaniel against tbe Kansas City, Mexico Cc Orient Railway Company, a corporation, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Carter County; S. H. Russell, Judge.</p> <p>Action by E. C. Voris against ffm. Anderson and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Canadian County; Edward Dewes Oldfield, Judge.</p> <p>Action by-T. S. McLaughlin against C. D. Shaw and Mary E. Shaw. Prom an order vacating a default judgment, plaintiff brings error.</p>

Error from District Oourt, Ellis County; T. P. Olay, Judge. Action in mandamus by the State of Oklahoma, on the relation of H. O. Whitson and others, against the Board of County Commissioners of Ellis County. From a judgment of dismissal in favor of the respondent, Board of County Commissioners, relators bring error.

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Action by John F. Ralston against Florence McDonald, A. D. McDonell, and F. A. Rittenhouse. Judgment for plaintiff, and the defendants McDonald and Rittenhouse bring error.</p>

<p>1.Banks and Blanking — State Banks— Status in Hands of Bank Commissioner.</p> <p>The placing of a state bank in the hands of the bank commissioner for the purpose of disposing of its assets to protect the depositors’ guaranty fund, and the selling of such assets and applying the proceeds to such purpose, does not release the bank from other liabilities.</p> <p>2. Banks and Banking — State Banks— —Organization.</p> <p>A state banking corporation can be created only by pursuing the statutory requirements and obtaining a charter from the Secretary of State.</p> <p>3. Same — Dissolution of State Bank.</p> <p>A state banking corporation can only be dissolved by judicial determination brought about either voluntarily or by the state in the manner prescribed by statute.</p> <p>4. Same — State Bank Commissioner and Board — Authority of.</p> <p>Neither the state bank commissioner nor the state banking board has authority to create, destroy, or transmute the corporate entity of a banking corporation.</p> <p>5. Same — Status as Corporation.</p> <p>The right to be a corporation and the franchise to do a banking business are separate and distinct. The franchise to do a state banking business is controlled by the bank commissioner, subject to statutory regulations, and, for reasons defined by statute, may be withdrawn, but such withdrawal does not work a forfeiture of the right to be a corporation.</p> <p>6. Corp orations — Creation—Franchise.</p> <p>The right to be a corporation is not the subject of barter or sale.</p> <p>7. Banks and Banking — State Banks — Re- ’ organization.</p> <p>Section 306, Rev. La ws 1910, prescribes the only method by which an insolvent state bank may be reorganized and reopened for business, and the statutory requirements should be observed.</p> <p>8. Same — Effect Upon Former Obligations.</p> <p>The action of the bank commissioner in taking over an insolvent state bank, selling its assets for the benefit of the depositors’ guaranty fund, authorizing the purchasers of such assets to secure the cancellation of the stock of the insolvent bank and have new certificates of stock issued to themselves, and in granting authority to the bank so reorganized to reopen under the same name and charter and to do a banking business on the repairing of the capital stock does not, in fact or in legal effect, work a dissolution of the corporation or create a new one. And does not operate to relieve the bank from it.s former debts or contractual obligations.</p> <p>(Syllabus by Stewart, O.)</p>

<p>1. Sales — Action for Breach — Petition—Demurrer.</p> <p>Where a contract provides that the second party shall have the right and privilege of returning to first party at the place of purchase at any time during the term of the contract or within 30 days after its cancellation or expiration at his own expense for credit at the purchase price all such new parts of first party’s automobiles as he may desire, except bodies, etc., provided same are in the same condition as when sold by the first party to second party, a petition seeking to recover the value of such parts of the automobile as second party had on hand should allege a compliance with the contract by returning the same to first- party during the life of the contract or within 30 days after its cancellation, and in the absence of such an allegation fails to state a cause of action, and a demurrer thereto should have been sustained.</p> <p>2. Same — Cancellation of Contract — Effect.</p> <p>Where such contract provides that the same shall continue in force and govern all transactions between the parties from its date until September 30,1914, 'but that either party shall be at liberty, with or without cause, to cancel and annul the contract at any time upon written notice by registered mail to the other party, and such cancellation shall also operate as a cancellation of all orders for automobiles, etc., which may have been received by first party from the second party prior to the date when such cancellation shall' take effect, such provision of such contract gives to either party' the right to cancel same at any time before its expiration. with or without cause, by giving the written notice provided therein, and no cause of action for damages accruing subsequent to such cancellation can be based thereon against the party canceling in the manner provided therein.</p> <p>3. Same — Sufficiency of Petition.</p> <p>The amended petition filed in this action alleges the cancellation of the contract by written notice by registered mail, and seeks to recover damages for profits upon automobiles that the second party would have sold between the date of the ‘"cancellation of the contract and its expiration. Held, that a demurrer thereto should have been sustained, as the contract, free from fraud or mistake, provided in itself how it might be canceled without liability accruing to either party thereto.</p> <p>(■Syllabus 'by Hooker, 0.)</p>

Error from District Court, Okfuskee County; Geo. O. Crump, Judge. Action by S. C. Brookshire and others against the Weleetka Cotton Oil Company. There was a judgment for plaintiffs and defendant brings error.

Error from District Court, Grady County; Will Linn, Judge. Action by J. F. Driggers and I. E. Carr, doing business as Driggers & Carr, against the St. Louis & San Francisco Railroad Company, a corporation. There was a judgment for plaintiffs, and defendant brings error.

<p>Appeal and Error — Review—Affirmance.</p> <p>In an action at law, where the evidence is conflicting, and there is evidence reasonably tending to support the verdict of the jury and the judgment of the trial court, in the absence of other error urged and shown by the appellant, this court will not weigh the evidence, and the judgment of the trial court will be affirmed.</p> <p>(Syllabus by Stewart, C.)-</p>

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Action by R. L. Alexander, administrator of estate of J. R. Bobier, deceased, against Thomas E. Bobier and another. There was a judgment for defendants, and plaintiff brings error.

<p>Replevin — Action—Defenses.</p> <p>Where, in a replevin action against a public officer to recover possession of property, held by him as such, an attempt is made by bim to justify bis possession thereof by virtue of levies made under execution in bis bands, be must show that said executions were issued by competent authority, upon valid and unsatisfied judgments, and in tbe event be fails so to do, bis possession is not justified, and no defense to the action is established by the- evidence.</p> <p>('Syllabus by Hooker, C.)</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by Henry P. Sager against Elmer Eaubus, in which Edward A. Walker and another interpleaded. There was a judgment for plaintiff, and the interpleaders bring error.</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action -by Jennie McDivitt against J. L. Reiser and Geo. McKinnis, to which Willard Johnston was made a defendant. Johnston filed a oross-petition praying for judgment against Reiser. There was a judgment against Reiser, and he brings error.

Error from County Court, Rogers County: H. Tom Kight, Judge. Action by P. Fisher and another against Mrs. Lee Methvine and another. There was a judgment for plaintiffs, and defendants bring error.

Error from District Court, Alfalfa County. Proceeding by Walter Ferguson against the Board of County Commissioners of Alfalfa County, State of Oklkhoma. From a judgment of the district court, on appeal from the disallowance of his claim, in favor of plaintiff, and from the overruling of a motion for new trial, defendant brings error.

Error from District Oourt, Grady County; Will Linn, Judge. Action by E. E. Short against E. A.Viekery and J. D. Sanders, in which O. B. Campbell was made a party defendant, and on his application . J. S. Mullen and others were made parties. Judgment for plaintiff, and defendants Campbell, J. S. Mullen and others appealed.

Error from District Court, Tillman County; Frank Mathews, Judge. Action commenced in justice court by O. Beamer, plaintiff, against M. M. MacKellar and George Pinion, defendants; case dismissed as to Pinion, judgment rendered against MacKellar. Defendants bring error.

Error from District Court, Ellis County; T. P. Clay, Judge. Aqtion by the Atchison, Topeka & Santa Fe Railway Company against T. J. Eld-redge, as County Treasurer, and another. There was a judgment for defendants, and plaintiff brings error.