Volume 66 — Oklahoma Reports

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Eva ,Middleton and May Middleton, by her next friend, against T. J,. Perkins and another. There' was a judgment for plaintiffs, and defendants bring error.

Error from District Court, Oklahoma County; Geo. W. 'Clark, Judge. Action by the Bex Petroleum Company, a corporation, against the Black Panther Oil & Gas Company, a corporation, and another There was judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by J. -S. Reeder against Charles Nickle. Judgment for plaintiff, and defendant brings error.</p>

<p>Taxation — Collection)—Statutes — Exclusive Remedy.</p> <p>Section 7, art. 1, c. 107, Sess. Laws 1915, provides a plain, speedy, and adequate remedy against an illegal tax from which the law provides no appeal, and such remedy is exclusive.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Com'anche County; Cham Jones, Judge. Action between J. A. Fain and the Board of Commissioners of Comanche County. There; -was a judgment, and the latter brings error, while the former assigns cross-errors.

Error from District Court, Creek County; Wade 'S. Stanfield, Judge. Action between C. W. Fuller and others and J. S. Stout and others. There was a. judgment for the latter, and the former bring error.

Error from County Court, Payne County; W. R. Jones, Judge. Action between J. A. Alexander and líate Busch and others. There was a judgment for the latter, and Alexander brings error.

<p>Error from District Court, Wagoner County; Ffedl P. Branson, Judge.</p> <p>Action by J. H.. Thigpen against Julius Deutsch and another. There was a judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.</p> <p>Action by W. E. Egan as plaintiff against W. O. Rees as defendant. Judgment for plaintiff. Defendant brings error.</p>

<p>Error from District Court, Rogers County; T. L. Brown, Judge.</p> <p>Action by R. T. James against the Bar-tlesville Zink Company. There wás a judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Alfalfa County; J. C. Robberts, Judge.</p> <p>Action by B. McLaughlin against Anson Dugan. There was a judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Muskogee County; George C. Crump, Assigned! Judge. In .the matter of the estate of Amanda M. Combs, deceased. Proceeding for the probate of an alleged lost will of deceased. On appeal to district court the instrument was admitted to probate, and contestants bring error.

<p>Error from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by M. M. Kunkler against the In-diahoma Refining Company,' a corporation. There was a judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pawnee County; Conn Linn, Judge. Action by George H. Smith, guardian, against the American Bonding & Trust Company. There was a judgment for plaintiff, and defendant brings error.

Error from District Court, Pawnee County; Conn Linn, Judge. Action iby E. M. Clark, administrator of the estate of Walter O. Hunt, deceased, against the American Bonding & Trust Company. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Pawnee County ; Conn Linn, Judge.</p> <p>Action by Arthur Coons against the American Bonding & Trust Company. There was a judgment for plaintiff, and dtefendant brings error.</p>

<p>Error from District Court, Pittsburg County; R. W. Higgins, Judge.</p> <p>Action by John N. Hoffar, as plaintiff, against McAlester-Edwards Coal Company, as defendant. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action 'by Cora Miller against R. M. Mountcástle. Judgment for plaintiff, and defendant 'brings error.</p>

Error from County Court, Wagoner County; J. O. Pinson, Judge. Petition by L. R. Baker and another against Hunt & Co., to vacate a judgment. Vacation was denied, and petitioners bring error.

<p>Error from District Court, Grady County ; Will Linn, Judge.</p> <p>Action between the Board of County Commissioners of Grady County and R. L. Castleman. There was a .judgment for the latter, and the former brings error,.</p>

<p>Error from District Court. Creek County; Jesse M. Hatchett, Assigned Judge.</p> <p>Action by J. D. Lankford, Bank Commissioner of the State of Oklahoma, against L. B. Jackson, trustee. There was a judgment for defendant, and plaintiff appeals.</p>

Error irom District Court, Nowata County; T. L. Brown, Judge. Action by Rose B. Bailey against Alfred Hallam and others. There was a judgment for plaintiff, and defendants bring error.

Error from District Court, Nowata County; T. L. Brown, Judge. Action by Jane Olaggett against Alfred Hallam and others. There was a judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Nowata County, T. L. Brown, Judge.</p> <p>Action by Tessie M. Olaggett against Alfred Hallam and others. There was a judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. In the matter of the estate of Bessie Cobb, a minor. Pinal accounting toy M. C. Flour-no y, as guardian. Prom an order approving the final report, Harry G. Stein, the succeeding guardian, appealed the the district court. There was a judgment there surcharging the guardian’s account, and he brings error.

<p>Error from District Court, Nowata County; T. L. Brown, Judge.</p> <p>Action toy Ruth Claggett against Alfred Hallam and others. There was judgment for plaintiff, and defendants bring</p>

Error from District Court, McIntosh County; R. W. Higgins, Judge. Action by the Oklahoma Corrugated Steel & Iron Company, a corporation, against the City of Eufaula, formerly the Town of Eu-faula. There was a judgment for plaintiff, and defendant brings error.

<p>Appeal and Error — Scope of Review — ¡Failure to File Briefs.</p> <p>The syllabus in Miles v. Bird, 41 Okla. 428, 1SS Pac. 789, is adopted herein.</p> <p>(Syllabus by the Oourt.)</p>

<p>Error from County Court, Roger Mills County; W. H. Mouser, Judge.</p> <p>Action by C,. T. Walker against J. D. Robinson. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by Mrs. Beulah Eitch against C. A. Becker and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal and Error1 — Want of Prosecution— Dismissal.</p> <p>Where a cause has been regularly assigned for submission, and submitted, and the plaintiff in error fails to file brief, or to offer any excuse for not doing so, it will be presumed that the appeal has been abandoned, and same will be dismissed for want of prosecution,.</p> <p>(Syllabus by the Court.)</p>

<p>1. Abatement and Revival — Premature Commencement of Action — Waiver of Objection.</p> <p>' Objection that suit is prematurely brought is waived, unless presented to the trial court, either by demurrer or answer. Such objection cannot be raised for the first time in this court.</p> <p>2. Guardian and Ward — Guardian’s Bond —Liability of Sureties.</p> <p>■Sureties on a guardian’s bond are, in the absence of fraud, concluded by the decree of the county court duly entered on a hearing of an accounting or final settlement, as to the amount of the principal’s liability, although the sureties are not parties to the accounting.</p> <p> 3. Same. </p> <p>When a guardian files an account and upon the hearing of such account the county court fixes by decree the amount due from the guardian to the ward and decrees a removal of the guardian for gross mismanagement of the estate of the ward and in-eompetency, the sureties upon such guardian’s bond are concluded, in the absence of fraud, by such decree, whether the account so settled by the county court be denominated an annual account or a final account.</p> <p>4. Same — Action on Bond — Judgment—Sufficiency of Evidence.</p> <p>Evidence examined, and held to be sufficient to sustain the judgment of the trial court.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Pontotoc County ; Tom D. McKeown, Judge. Consolidated actions by the Farmers’ State Bank of Ada, Okla., against G. H. Keen, in which Sadie E. Keen is intervener. Judgment for intervener, and plaintiff brings error.

, Error from Oounty Court, Carter County; Thomas W. Champion, Judge. Replevin by the First National Bank of MadiU against W. F. Ross. Judgment for plaintiff for the sum of $70, and in favor of the defendant for costs, and plaintiff brings error.

Error from County Court, Pawnee County; Geo. E. Merritt, Judge. Search warrant and seizure proceeding by the State against R. L. Brandon and others, interpleaders and claimants. Judgment for the State, motion for new trial overruled, and claimants bring error.

<p>Appeal and Error — Examination of Record-Reversal.</p> <p>Where the plaintiff in error filed a brief, and the defendants in error have failed to file brief, and have given no excuse for their failure, and on an examination of the record it appears that the errors asserted are well founded, this court is not required to search for some theory, or for authorities, that might possibly save the judgment' appealed from.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court. McClain County; F. B. Swank, Judge.</p> <p>Action by Catherine Byars against the Purcell Bank & Trust Company of Purcell and A. F. Tooley Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Okfuskee County; Geo. C. Crump, Judge.</p> <p>Action by Dona C. Malot against W. H. Dill. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garvin County; . F. B. Swank, Judge. Action by W. K. Jackson against the Board of County Commissioners of Garvin County. From a judgment sustaining a demurrer to plaintiff’s second cause of action, plaintiff appeals.

Error from District Court, Osage County; R. H. Hudson, Judge. Action by Louis Rogers, Sr., against Louis Rogers, Jr., and others, Rosalie Avant, Ben Avant, and. George B. Fowler, for possession of lands, damages for tlaeir retention, etc., against Fowler, and partition of the property as between plaintiff and Lois Rogers, Jr., and Rosalie Avant, with cross-petition by defendant Fowler.

<p>Error from District Court, Nowata County; T. L. Brown, Judge.</p> <p>Action by Willie Claggett against Alfred Hallam and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Oklahoma County ; R. McMillan, Assigned Judge. Suit by G. E. Patteson, doing business as G. E. Patteson & Co., against L. Stinchcomb and R. E. Robey, doing business as the Stinchcomb Grain Company. Judgment for plaintiff, and defendants bring error.

Error ftrom District Court, Comanche County; Cham Jones, Judge. Action by J. P. Jones against E. W. Shelton. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County ; John W. Hayson, Judge. Suit for injunction by O. B. Blake and others against George Baker, as .County Treasurer of Oklahoma County, and others; O. E. Murray, Intervener. Judgment for plaintiffs, and from an order vacating and setting aside the judgment as to part of the plaintiffs, they bring error.

<p>1. Appeal and Brrer — Review — Equity Cases.</p> <p>In the case of purely equity cognizance this court will examine the entire record, weigh the evidence, and if the judgment is clearly against the weight of the evidence this court will reverse the ease and render, or cause to be rendered, the judgment that the trial court should have rendered.</p> <p>2. Oil and Gas — Leases—Validity.</p> <p>Where a grantor who owns the land executes a gas and oil lease upon a certain tract of land and afterwards executes extensions of such lease, and subsequently executes to another an oil and gas lease upon the same land, such last-named lease cannot prevail against the former lease and its extensions, unless the lessee of the second lease had no knowledge of the former lease and its extensions, or had no such knowledge as would put him upon inquiry, and which, if followed up, would have disclosed the existence of such lease and its extensions.</p> <p>3. Same — Actions—Evidence—Sufficiency.</p> <p>The evidence in this case has been carefully weighed, and the weight thereof found to be clearly against the judgment rendered.</p> <p>4. Same — Injunction.</p> <p>Under the evidence in this ease the plaintiffs were not entitled to the in junctional relief asked.</p> <p>('Syllabus by Oollier, C.)</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by A. P. Blackwell against H. B. Harts and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Time — Service of Process — Return Day.</p> <p>Where, in a summons, the answer day is fixed on a day which falls on Sunday, such summons is a valid summons, as into said summons must he read section 5341 of the Revised Laws of 1910, which fixes the limits of filing an answer in response to said summons to be the Monday succeeding such Sunday.</p> <p>2. Judgment — Vacation—Condition.</p> <p>To entitle one to have a judgment, rendered upon a petition stating a cause of action, upon which a legal summons has been served upon the defendant, upon motion or petition, vacated, it is a condition precedent that defendant must have a valid defense to the judgment rendered.</p> <p>3. Judgment — Default—Time for Answer.</p> <p>Where a defendant is authorized to file answer to a pending cause within a stated time, the filing of a motion to require the plaintiff to permit copies of its records to be made does not interrupt the running of the time in which such answer must be made, and if under such circumstances an answer is not filed within the specified time, the defendant may properly be adjudged in default, and judgment rendered against him.</p> <p>4. Same — Vacation—Grounds.</p> <p>Where a time is fixed for the filing of an answer, and answer is not so filed, and judgment is therefore rendered by default, it is not a ground upon which to vacate such judgment that the attorney of defendant had information from the clerk of the cour'-rendering the judgment that contested motions would not be heard on the day such judgment was rendered, as, in the absence of an answer, no contest was pending against a motion for judgment by default.</p> <p>Thacker, J., dissenting in part.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Dedication — Requisites—Owner of Fee.</p> <p>The dedication of a public highway is ror the use of the general public, and when not established by official authority must be made by the owner of the fee, or by some one by him expressly authorized.</p> <p>2. Same — Injunction—Evidence.</p> <p>In an action for an injunction against the landowner to restrain him from closing a road extending over or across his land, and the evidence fails to show a dedication, either by the defendant or by some former owner, or by some one expressly authorized, or by official authority, a judgment for the plaintiff must be reversed because it is not supported by the evidence and is contrary to law.</p> <p>(Syllabus by Galbraith, C. )</p>

Error from County Court, Lincoln County; H. M. Jarrett, Judge. Action by O. L. Pool against the First State Bank of Chandler, Okla. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by the First National Bank of Tulsa against the Oklahoma Union Traction Company in which the Colonial Trust Company and' others intervened. Judgment a-gainst the Oklahoma Union Traction Company, and from an order confirming a sale made by the receiver, the First National Bank, the Traction Company, and Anna B. Small appeal.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Suit by W. O. Womack against W. H. Phelps and others. Judgment for plaintiff on a directed verdict, and certain defendants bring error.

Error from District Court, Tillman County; T. I’. Clay, Assigned Judge. Action by E. D. Benton against the Wichita Falls & Northwestern Railway Company for damages to live stock in transit. Judgment for plaintiff, and defendant appeals.

<p>Bills and Notes — Defenses — Inadequacy of Consideration.</p> <p>In an action on a promissory note given for the purchase price of merchandise, where the promisor receives all he contracted for, mere inadequacy of consideration, in the absence of fraud, unless such inadequacy is sufficient to shock the conscience and in itself constitute a badge of fraud, is not available as a defense on the ground of failure of consideration.</p> <p>(Syllabus by Bleakmore, C.)</p>

<p>Error from District Court, Muskogee County ; R. P. de Graffenried, Judge.</p> <p>Action in equity by William P. Hurtt against L. R. Kershaw. Judgment for plaintiff ' on a directed verdict, and defendant brings error.</p>

<p>Error from County Court, Marshall County; .T. I. Henshaw, Judge.</p> <p>Suit by W. N. Taliaferro against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Alfalfa County; James B. Cullison, Judge.</p> <p>Action by J. R. Stone against L. A. Stone and others with counterclaim by defendants. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Divorce — Alimony—Appeal.</p> <p>On an appeal from a decree allowing permanent alimony, this court may affirm, reverse, or modify the decree appealed from.</p> <p>2. Same — Decree on Appeal.</p> <p>On an appeal from the allowance of permanent alimony, where all the facts necessary to enable it to do so are contained in the record, this court may set aside the decree appealed from and enter such decree as the trial court should have entered.</p> <p>3. Divorce — Amjount of Alimony — Statute.</p> <p>Under section 4969, Rev. Laws 1910, the amount of an award of alimony to a wife must be reasonable, having due regard to the value.of the real and personal estate of the husband at the time of the divorce, and may be made in real or personal property, or both, or in money, and if made in money, the amount awarded must be just and equitable.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Woodward County; James B. Cullison, Judge. Action by the J. R. Watkins Medical Company of Winona, Minn., a foreign corporation against George M. Coombes and another. There was a judgment for defendants, and plaintiff brings error.

Error from District Court, Hughes County; John Caruthers, Judge. Action to quiet title by Willie Alexander, by his next friend, Izora Lee, against J. Coody Johnson, Cortland L. Long, and others, with cross-petition by defendant, Long. Default judgment rendered on cross-petition against plaintiff was vacated on his motion, and there was judgment for plaintiff on the merits, and defendants bring error.

Error from District Court, Carter County; S. H. Russell, .Judge. Action by Ira L. Arnold against the Continental Gin Company, a corporation. Judgment for plaintiff, motion for new trial overruled, and defendant brings error. The parties will toe designated as in the trial court. This was an action for the cancellation of a mortgage of record and for statutory damages for failure to release same.

Error from Superior Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by G. W. Peeples against 'Seymour S. Price and M. D. P. Scarborough. Judgment for plaintiff ,for foreclosure of mortgage, motion to vacate the judgment overruled, and objection to confirmation of sheriff’s sale overruled, and sale confirmed, and defendants bring error.

Error from County Court, Pittsburg County; -S. P. Brown, Judge. Action by Mitchell Moore, Jr., by his next friend, W. C. Moore, against the Grand Lodge Knights of Pythias of Oklahoma. There was a judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action 'by H. H. Martin against the Ford Motor Company and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge.</p> <p>Action by D. L. Pool against tbe Shawnee National Bank. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pawnee County; L. M. Poe, Judge. Action to quiet title by George Jameson against G% W. Goodwin and others. Judgment for defendants, sustaining a demurrer and dismissing the cause, and plaintiff brings error.

<p>1. Appeal and Error — Rulings of Trial Court — Exception.</p> <p>Rulings of the trial court, assigned as error, to which no exceptions were taken, are not reviewable on appeal.</p> <p>2. Appeal and Error— Exclusion of Evidence — Record.</p> <p>This court may not consider an assignment of error predicated upon the exclusion of evidence where the record fails to disclose what such evidence would have been if admitted.</p> <p>3. limitation of Actions —- Fraud — Discovery.</p> <p>The registration of a deed procured from an ignorant and illiterate grantor by the false and fraudulent pretense that the same was merely a rental contract does not constitute constructive notice of such fraud sufficient to set the statute of limitations in motion as against the grantor.</p> <p>4. New Tidal — Motion—Diligence.</p> <p>A motion for new trial on the ground of newly discovered evidence is properly overruled where no facts constituting diligence to have discovered such evidence in time for the trial are shown.</p> <p>(Syllabus'by Bleajkmore, C.)</p>

Error from District Court, Payne County; A. H. Huston, Judge. Suit for injunction by T. O. Orr and others against the City of Cushing and others. Temporary injunction dissolved, and plaintiffs bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by C. A. Amforister against Pete Dalton, the Brunswick-Balke-Collender Company, of Oklahoma, and others. Judgment for defendant Brunswick-Balke-Collender Company as to priority of mortgage lien, and plaintiff brings error.

Error from District Court, Okmulgee County; Ernest B. Hughes, Judge. Suit by A. M. Milam, as guardian qf Sarah 0. Smith, a minor, against J. A. Roper, Hannah Roper, and Annie Grayson. Judgment for plaintiff, demurrer to petition of Annie Grayson for new trial sustained, and petitioner brought error. On death of petitioner, the proceeding in error was revived in the name Robert Cherry, her sole heir, as plaintiff in error.

<p>1. Judgment — Vacation—Fraud.</p> <p>Where, in a proceeding for such purpose, fraud of the prevailing party alleged to have prevented the presentation of a defense to the aption is relied upon to vacate a judgment, such fraud, to be available, must be unmixed with the fraud or negligence of petitioner or his agents.</p> <p>2. Sairfi — Petition.</p> <p>Petition examined, and held not to state facts sufficient to justify vacation of the judgment on the ground of fraud practiced by the successful party in obtaining the same.</p> <p>(Syllabus by Bleakmore, ,0.)</p>

<p>1. Pleading' — Objections to Admission of Evidence — Cure by Amendment'.</p> <p>. Any error in overruling an objection to the introduction of evidence under a petition in ejectment on the ground -that the petition fails to set out. copies of the instruments making up the chain of title is cured by an amendment of such petition after verdict, without objection or exception, setting up such copies.</p> <p>2. Appeal and Error — Exceptions i'o Instructions.</p> <p>Alleged error in the giving of instructions cannot be reviewed in this court in the absence of an exception to such instructions.</p> <p>(Syllabus toy Rummons, -C.)</p>

<p>1. Appeal and Error — Verdict—Review-</p> <p>In the absence of an affirmative showing of prejudicial error of law, in the trial of an action at law, the verdict of a jury, reasonably supported by the evidence, will not be disturbed on appeal.</p> <p>2. Appeal and Error — Instructions—'Reservation of Grounds of Review.</p> <p>In ordér to bring up for review to this court the instructions of the court, exceptions thereto must be saved in the manner prescribed by statute, and the error in giving the same must be assigned in the motion for new trial and in the petition in error.</p> <p>3. Breach of Contriact — Measure of Damages.</p> <p>'Section 2852, Rev. Laws Okla. 1910, provides : “For the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract, which are not clearly ascertainable in both their nature and origin.”</p> <p>(Syllabus 'by Galbraith, C.)</p>

<p>Judgment — Records—Lien —, Property Subject — Unrecorded Deed — “Third Person.”</p> <p>L. recovered a judgment in a justice court against K. and filed a transcript thereof in the district court of Harmon county, upon which- an execution was issued and levied upon lots which, so far as the records of said county showed, belonged to K. Sa'id lots were sold under said execution, and a motion was made in district court to confirm said sale. On the hearing of said motion it was shown that the lots in controversy had been sold respectively to the parties resisting said confirmation prior to the filing of said transcript, but that the conveyances thereof had not been filed for record in the register of deed’s office of said county until after said sale. Held, that said judgment lien attached only to the actual interest of the judgment debtor in said lots, and that, though he appeared to have an interest in the lots sold, he had none in fact, and no lien attached to the lots sold. Held, further, that in a judgment lien the plaintiff therein is not a “third person,” within tne meaning of section 1195, Comp. Laws 1909 (section 1154, Rev. Laws 1910).</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Forcible Ensiry and Detainer — Title — Evidence.</p> <p>Evidence to title of real estate can be introduced in an action of forcible entry and detainer only as an incident tending to show the right to possession.</p> <p>2. Forcible Entry and Detainer — Right of Action — Possession.</p> <p>One who .in the peaceable and quiet possession of land and premises has a right of possession, that is to say, a right arising from possession alone, which, precludes one who has the right to possession from ousting him without resorting to an action in court and, if he is deprived of such possession against- his will and without resort to the courts, he may maintain an action for the possession from which he has been excluded, even against one who had such right as would have entitled him to recover possession by action.</p> <p>3. Same — Possession—“Force.”</p> <p>In order to constitute force as contemplated by the forcible entry and detainer act (Comp. Laws 190&, secs. 6428-6441), it is not necessary that actual violence be used. If a person takes possession of real property during the temporary absence and without the consent of one who is in the peaceable and quiet possession and bars the former occupant from possession, persistently refusing to surrender the premises, he is guilty of forcible and unlawful de-tainer.</p> <p>4. Justices of the Peace — Forcible Entry and Detainer — Possession.</p> <p>In an action brought under the forcible entry and 'detainer statute, the introduction of evidence by either party showing title to the real estate does not operate to divest the justice court of jurisdiction. In such action possession alone is involved and the action cannot he converted by the acts of either party into an action to try title.</p> <p>(Syllabus by Stewart, 0.)</p>

<p>1. Carriers — Baggage—Liability.</p> <p>The carriage of baggage is a mere incident to the carriage of the owner as a passenger ; and ordinarily a carrier is liable alone to the owner thereof for the loss or damage to property, as carrier of baggage, when the relation of carrier and passenger exists between it and such owner, unless at the time of the receipt of such property as baggage the carrier is informed that the same' is owned by another.</p> <p>2. Carriers — Baggage—Liability for Loss.</p> <p>Where a passenger procures the property of .mother to be carried as baggage, the carrier, if without knowledge of the true ownership, is a gratuitous bailee thereof, and liable to the owner only for loss or damage occasioned by gross negligence or willful miseonrfuet.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from County Court, Murray County; J. H. Casteel, Judge.</p> <p>Action by L. A. King against R." L. Freeman.</p>

<p>1. Municipal Corporations — Public Improvement — Injunction—Laches.</p> <p>Where money has been expended by a city for public improvements and a property owner sits silently by and allows the expenditure and improvements to be made with full opportunity to prevent its accomplishments or testing the legality of the ordinance under which said improvements are made and fails to take steps to enjoin the expenditure of said money or construction of said work, it is then too late for him to aslc a court of equity to interfere, as the improviements have then been made, the money expended, and the relations of the property and parties have been changed, and he is held to be guilty of laches which will prevent him from avoiding the payment of his part of the costs thereof.</p> <p>2. Same.</p> <p>It is the duty of the property owner, upon discovering that labor and money are about to be expended in the actual construction of a public work which would tend -to benefit his property, to promptly take action, by injunction or otherwise, against the proceedings providing for such improvements, if in his judgment said proceedings are irregular, and he cannot stand by without availing himself of this opportunity while- the public work is in progress,' and when the work is completed and he is called to pay his respective assessments for the benefits received, then invoke relief by injunction in a court of equity.</p> <p>(•Syllabus by Hooker, C-)</p>

<p>Error from District Court, Muskogee County; R. P. De Graffenreid, Judge.</p> <p>Action by the Great Bend Oil Company against W. A. Jarvis, N. A. Weems, and H. C. Becker.</p>

Error from District Court, Garvin County; P. B. Swank, Judge. Action by Susan Garvin, executrix of the estate of Vivian Garvin against O. W. Pat-chell. Judgment for plaintiff, and defendant brings error.

<p>Error from. District Court, Garfield County; James B. Oullison, Judge.</p> <p>Action by the First 'National Bank of Lawton against Florence E. Humphreys and Frank E. Humphreys. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by Fred D. Field and others against the Oklahoma City Land & Development Company, a corporation, and others. There was a judgment for plaintiffs and defendants objected to the confirmation of a foreclosure sale, while the purchaser moved to have the sale confirmed. There was a judgment overruling the objections and confirming the sale, and defendants bring error.

Error from District Court, Osage County; R. H. Hudson, Judge. Suit by H. G. Burt against Lottie Roe and H. M. Freas, to quiet title to, and enjoin the sale on execution of certain lands. Judgment for plaintiff, and defendants’ bring error.

Error from District Court, Muskogee County; R. P. DeGraffenried, Judge. Suit for injunction by W. A. Hancock and others against the city of Muskogee and others. ' Judgment for defendants, and plaintiffs bring error.

Error from District Court, 'Osage County; R. H. Hudson, Judge. Action .by Norris Watkins against Lottie Roe and H. M. Freas, to quiet title to, and enjoin the sale on execution of, certain lands. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Jackson County; Frank Mathews, Judge.</p> <p>Action by the American Home Life Insurance Company against the Citizens’ State Bank of Headrick. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Contracts— Construing Instruments Together — Instruction.</p> <p>Tlie two agreements in writing presented here constitute one contract, being supplementary one to tlie other, and should be construed together. This is true although not dated at the same time,- yet they refer to the same subject-matter, and on their face show that each was executed as a means of carrying out the intent of the other.</p> <p>3. Appeal and Error — Judgment on Directed Verdict! — Evidence.</p> <p>Where (he defendant declines to introduce any evidence, a judgment of the court sustaining a motion for a judgment against him on the evidence of the plaintiff will not be disturbed upon appeal, where the evidence as introduced is reasonably sufficient to support the judgment of the court.</p> <p>(Syllabus 'by Hooker, C.)</p>

<p>Error from District Court, Grady County ; Cham Jones, Judge.</p> <p>Action by the Southwest General Electric Company against F. E. Riddle. Judgment for defendant; plaintiff brings error.</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Action by JR. S. Alwood and another against Isabelle Harrison and Ed Haiiiison, with affidavit of attachment, in which R. B. Leeka intervened. Motion to dissolve attachment sustained, motion ro set aside the judgment and order and for a new rrial overruled, and plaintiffs bring error.</p>

Error from Superior Court, Custer County ; J. W. Lawter, Judge. Action by R. N. Sewell against the Milwaukee Mechanics’ Insurance Company and .others, to recover on fire insurance policies, J. C. Pyle, interpleader, asking judgment against plaintiff. Judgment for plaintiff, and defendants bring error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Stephen D. Condit-and Melissa O- Condit against Ralph F. 'Condit, Beatrice May Condit, and others. Judgment for plaintiffs, and the named defendants bring error.

Error from District Court, McIntosh County; R. W. Higgins, Judge. Petition by Southern Oil Corporation for leave to withdraw its bid for royalty oil and to recover an amount deposited by it with its bid. Petition denied by county court, petitioner’s appeal to district court dismissed, and the petitioner appeals.

<p>1, Appeal and Error — Report—Exceptions —Review.</p> <p>Where a referee for the trial of a cause in the district court is not ordered to report the evidence, -but is ordered to hear the evidence and report his findings of fact and conclusions of law, the evidence so taken can only be .made a part of the record and subject, to review by the trial or -Supreme Court by having the referee allow and sign a bill of exceptions containing the evidence taken by him. In the absence of such bill of exceptions the court cannot consider the question of'the sufficiency of the evidence to support the findings of the referee, and cannot consider the evidence taken before the referee for the purpose of making independent findings therefrom, or -for any other purpose.</p> <p>2. Reference — Setting Aside Report — Judgment.</p> <p>Where the report of the referee is entirely set aside, there is no. finding of fact or evidence upon which the court can act; and the effect of setting aside the report is to grant a new trial, and it is error for the court, after entirely setting aside the re.feree’s report, to proceed to render judgment upon it.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Woods County, It. H. Loofbourrow, Judge. Ejectment of H. A. Noah, administrator of the estate of Carrie A. M-oe, deceased, against Nick Eller. Judgment for plaintiff, and defendant brings error-

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Suit by the Continental Supply Company against George W. McClain and Dave Anderson, copartners doing business under the firm name and style of Eureka Drilling Company. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Pawnee County ; Conn Linn, Judge.</p> <p>Suit by W. H. Savely against W. E. Nation, with attachment. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Ottawa County; Preston S. Davis, Judge. Action by W. A. Sandals against the Miz-pah Mining Company. Judgment for defendant on sustaining a demurrer to the evidence, and plaintiff brings error.

Error from District Court, Payne County; A. H. Huston, Judge.' ' Mandamus by Commercial National Bank, as assignee of the Dudley Construction Company, against James W. Robinson and others, Mayor and Commissioners of the City ol Stillwater, Okla., in which R. A. Lowry and others were permitted to intervene. Writ denied, and plaintiff brings error.

Error from District Court, Blaine County; Thomas A. Edwards, Judge. Action for injunction by ‘Sam Mason and' others against School District No. 72, Blaine County, State of Oklahoma, and others. Temporary injunction denied, and plaintiffs bring error which was consolidated with error by plaintiffs from judgment on the merits.

Error from District Court, Ellis County; T. P. Clay, Judge. Forcible entry and detainer action by H. V. Peek against J. C. Bullock. From a default judgment in the district court, on a trial de novo on appeal from a judgment for plaintiff entered in justice court, defendant brings error.

<p>Error from District 'Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by M. Lillian White and another against the Modern Brotherhood of America. Judgment for plaintiffs, and defendant brings error.</p>

<p>Usury — Action for Penalty — Demand — Necessity.</p> <p>A demand in writing for the return of usurious interest paid is a prerequisite to the right to maintain an action to recover double the amount thereof, under section 1005, Rev. Laws 1910.</p> <p>(Syllabus by Galbraith, O.)</p>

<p>Error from County Court, .Seminole County ; A. S. Norvell, Judge.</p> <p>Suit by L. Williams against the Choctaw Cotton Oil Company. Judgment for plaintiff and defendant brings error.</p>

<p>Error from District Court, Coal County; Robert M. Rainey, Judge.</p> <p>Action by James Small against the Jackson Land Company. Judgment for plaintiff, and defendant brings err'or.</p>

Error from County Court, Rogers County : Edgar Anderson, Judge. Action by Ed King against T. A. Cain. From a judgment of the county court for plaintiff, on appeal from a verdict in justice court for defendant, defendant brings error.

<p>Appeal and Error — Want of Prosecution— Dismissal.</p> <p>Where a’ cause has been regularly assigned for submission and submitted, and the plaintiff in error fails to file brief, or to offer any excuse for not doing so, it will he presumed that the appeal has been abandoned, and same will be dismissed for want of prosecution.</p> <p>(Syllabus by the Court.)</p>

<p>Error from District Court, Okfuskee County; -Geo. C. Crump, Judge.</p> <p>■Suit for ejectment and to' quiet title by George Brown against R. G. Davenport, J. R. Morton, and Frank P. Hutchison, in which defendant Davenport filed a disclaimer, and defendant Hutchison filed an answer and cross-petition. Judgment for plaintiff establishing the 'disclaimer, finding defendant Morton in default, and against defendant Hutchison, and he brings error.</p>

<p>Error from District Court, Carter County ; A. Eddleman, Judge.</p> <p>Action by Dixon Willis and H. C. Morris against B. P. Cochran and others. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Murray County ; F. B. Swank, Judge. Action by Nellie Short against R. W. Chaney and others. Judgment for defend^ ants, and plaintiff brings error. [This ease has been overruled by Cusher v. Ricketts et al., 72 Okla. —, 179 Pac. 593.]

<p>Error from County Court, Love County; J. H. Hays, Judge.</p> <p>Action by Annis Davis against Ben Howard and Hardy Grant. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Oklahoma County; Geo. W. 'Clark, Judge. Action by Aaron Fretz against the City of Edmond, and its officers for an injunction. From an order sustaining a demurrer to the petition, the plaintiff brings error.

Error from District 'Court, Okmulgee County; Ernest B. Hughes, Judge. Action by James H. Dwy^r and others against D. E. Farrell. Demurrer to answer sustained, and judgment for defendant, and plaintiffs bring error.

Error from District Court-, Okfuskee County; Geo. O. Crump, Judge. Action by M. L. Davis and another against F. B. Farnsworth and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Cherokee County; John H. Pifehford, Judge. The contestant, Mrs. J. M. Dickey, objected to probate of the will of J. E. Dickey, deceased, offered by proponent, Maude Dickey. The will, being admitted to probate by the county court, contestant appealed and, from an adverse judgment of the district court, contestant brings error.

<p>1. Master and Servant — Relationship — Issue — Sufficiency of Evidence.</p> <p>Where the relationship of master and servant is an issue in any cause, the same-may be determined by the circumstances of the employment, and the evidence here examined, and held sufficient to justify the court in presenting that issue to the jury.</p> <p>2. Appeal and Error — Verdict—Evidence.</p> <p>The evidence here presented a question of fact upon the following propositions: (1) The extent and nature of the employment of Cocoran and his duties. (2) Were the three jacks sufficient to perform this work and were they properly equipped' and reasonably safe for the work? (3) Was the Place in which the plaintiff was assigned to work a reasonably safe place? And the jury having decided these questions adversely to the plaintiff in error, and inasmuch as the evidence is such that all reasonable men might not reach the same conclusion, we cannot disturb the verdict.</p> <p>3.. Evidence — Declarations—Servant.</p> <p>The declarations of Walker, the superintendent of the plaintiff in error here, having been made within the scope of his authority, and while he was transacting the business of his principal, were properly admitted in evidence.</p> <p>('Syllabus by Hooker, O.)</p>

Error from District Court, Woodward County; James B. Cullison, Judge. Suit- by Abe Cowan and Hannah E. Cowan against the Atchison, Topeka & Santa Fe Railway Company. 'Special demurrer to amended petition sustained, and case dismissed, and plaintiffs except and bring error.

<p>Error from District Court. Muskogee County; R. C. Allen, Judge.</p> <p>Action by T. D. Randall & Do., a partnership, against the Oklahoma Hay & Grain Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from County Court, Atoka County; Baxter Taylor, Judge. Action by Fred Brockmeier against the Chicago, Rock Island & Pacific Railway Company. Prom a judgment of the county court for plaintiff, on appeal frorh a judgment in justice’s court for plaintiff defendant brings error.

<p>Error from District Court, Pottawatomie County; 'Ohas. B. Wilson, Jr., Judge.</p> <p>Action by M. M. Henderson against the Board of County Commissioners of Pottawatomie County. Judgment for plaintiff in part, and defendant brings error.</p>

<p>Error from County Court, Tulsa County; J. W. Woodford, Judge.</p> <p>Action by Hie Farmers’ & Producers’ Bank against M. S. Isherwood, with garnishment against the First National Bank of Tulsa, on motion of which A. E. Lewis and E. M. Arnold were interpleaded. Judgment for interpleaders discharging the garnishee, and plaintiff brings error.</p>

Error from District Court, Kingfisher County; James B. Cullison, Judge. Action for partition by Franklin Jackson against Joseph. Rlofeinson, Henry Phillips, and others. Judgment for plaintiff, and defendant 'Joseph Robinson brings error.

<p>Error from 'District Court, Caddo Coum ty; Will Linn, Judge.</p> <p>Action by 'Continental Supply Company against J. D. Patrick and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Bryan 'County; Jesse M. Hatchett, Judge. Action by Mofford Conover and R. P. Luke against Frank P. Baird and Frank Lewis, administrator of the estate of W. A. Lewis, deceased. Verdict and judgment for plaintiffs, motion for a new trial overruled, and defendants except and bring error.

Error from District Court, Tulsa County; Conn Linn, Judge. Suits by Cyrus Helm and .by J. E. Tem-pleton .against D. D. Mickleson. Demurrer to evidence sustained, and plaintiff in each case brings error.

<p>1. Trial — Directed Verdict — Evidence.</p> <p>A prima facie case having been admitted for plaintiff, it is not error for the trial court to refuse to direct a verdict for the defendant where the evidence in support of the affirmative defense relied upon does not prove the allegation of such defense to such a degree o,f certainty as to preclude reasonable men from differing thereon.</p> <p>2. Insurance — Fraternal Beneficial Associations — Waiver of Warranties — Authority of Local Council.</p> <p>A local council of mutual benefit society who by the provisions of the by-laws of the society has authority to issue and deliver the benefit certific&te and collect asteess-ments has authority to waive conditions and warranties of the insurance contract.</p> <p>3. Same.</p> <p>Where a local council of a mutual benefit society with authority to waive conditions and warranties of the contract of insurance receives dues from a member in payment of his assessment to the society, with full knowledge of the habits of the insured with reference to the use of intoxicating liquors, it thereby waives the conditions and warranties in the contract with reference to the use of such intoxicating liquors by tlie insured.</p> <p>4. — Same—Action on Certificate — Question for Jury — Waiver of Conditions.</p> <p>Where a local council of a mutual benefit society had authority to waive conditions and warranties in an insurance contract, held, it was not error for the trial court to submit the question as to whether or not the local council had waived said conditions and warranties to the jury, notwithstanding the court predicated the authority of the local council to waive said conditions and warranties upon the wrong section of the by-laws, especially where the result reached would have been the same.</p> <p>('Syllabus by West, C.)</p>

Error from District Court, Rogers County; T. L. Drown, Judge. •Suit by J. G. Rucker and F. M. Rucker, copartners doing business as Rucker Bros., against B. C. Beane and others. Demurrer to petition overruled, and defendants bring error.

<p>Error from County Court, Kay County; Claude Duvall, Judge.</p> <p>Action by O. 'M. Swaim against M. E. Bu-ellesfeld. Judgment for plaintiff, and de fendant brings error.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. ■Suit by E. S. Shidler, administrator of the estate of Lizzie Pepper, deceased, and another, against John S. Mowatt. Judgment for plaintiffs, and defendant brings error.

<p>1. Trial — Directed Verdict — ¡Opening Statement.</p> <p>Where the plaintiff’s petition states facts sufficient to constitute a cause of action, and plaintiff’s reply to the defesdant’s answer is sufficient in law, it is error for the court to peremptorily instruct the jury to return a verdict for the defendant upon the opening statement by counsel for the plaintiff and the pleadings, unless the opening statement contains distinct and unequivocal admissions which would bar recovery.</p> <p>2. Usuryi — Loan to Pay Usurious Debts.</p> <p>■Where the lender neither charges nor receives any more than legal interest, the fact that the money is used to pay usurious debts due from the borrower to a third person does not render the loan usurious, though the lender knows at the time of the loan that the money is borrowed for the purpose of paying such usurious debts.</p> <p>(Syllabus by Pryor, O.)</p>

<p>1. Subrogation — (Definition.</p> <p>The doctrine of subrogation is derived from the civil law, and it is said to be a legal fiction, by force of which an obligation extinguished by the payment made by a third person is treated as still subsisting for the benefit of this third person, so that by means of it one creditor is substituted to the rights, remedies, and securities of another.</p> <p>%. Same — Requisites.</p> <p>The doctrine requires (first) that a third person seeking -its benefit must have paid a debt due to a third party before he can be substituted to that party’s rights, and (second) that in doing this he musr not acr as a mere volunteer, but on compulsion, to save himself from loss by reason of a superior lien or claim on the parr of the person to whom he pays rhe debt, as in cases of sureties, prior mortgages, ele. The right is never accorded in equity to one who is a mere volunteer in paying a debt of one person to another.</p> <p>3. .Judgment! — Oonclusivenesg; — Estoppel —■ Ground of Judgment.</p> <p>When a fact has been once determined in the course of a judicial proceeding, and a final judgment has been rendered in accordance therewith, it cannot be again litigated between the same parties without virtually impeaching the correctness of the former decision, which, from motives of public policy, the law does not permit to be done. The estoppel is not confined to the judgment, but extends to all facts involved in' it as necessary steps, or the groundwork upon which it must have been founded. It is allowable to reason back from a judgment to the basis on which it stands, upon the obvious principle that, where a conclusion is indisputable and could have been drawn only from certain premises, the premises are equally indisputable with the conclusion. •</p> <p>4. Judgment — .Res Judicata — Scope.</p> <p>Upon a plea of former adjudication, a matter will be held res adjudicata, although not raised as an issue by the pleadings in the former action, if from the record it appears that it formed one of the premises upon which the judgment necessarily rested.</p> <p>(Syllabus toy Galbraith, O.)</p>

Error from District .Court, Creek County; Jesse M. Hatchett, Assigned Judge. Action by the State, on the relation of J. ÍD. Lankford, State Bank Commissioner of Oklahoma, against Mary Soliss, executrix of the estate of John P. Soliss, deceased, and another.. Judgment for defendants, and plaintiff brings error.

Error from District 'Court, Caddo -County; Will Linn, Judge. -Suit toy Ida Sanders and others against the Chicago, Rock Island & Pacific Railway Company. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Rogers County ; T. L. Brown, Judge. Action by Hattie Harris and others against C. W. Dieterle and others. Demurrer to petition overruled, and judgment for plaintiffs, and defendants, except Sanger, bring error.

Error from District 'Court, Creek County; Ernest B. Hughes, Judge. Action by iCunnuggy Harjo and Polly Buckley against J. B. Owensby and A. A. Hammer. From a judgment sustaining defendants’ motion to dismiss, plaintiffs bring error.

Action brought in Supreme Court to vacate a decision and award of the 'State Industrial Commission in favor of Charles D. Gunn as claimant and against S. J. Wick, as respondent, and the Fidelity & Deposit Insurance Company of Maryland, as insurance carrier.

<p>Appeal and Error — Briefs—Reversal.</p> <p>When the plaintiff in error has duly filed and served brief in compliance with the rules of this court, and defendant has neither filed brief nor offered excuse for failure so to do, this court will not search the record to find some theory upon which the judgment may be sustained; but where the brief filed appears reasonably to sustain any assignment of prejudicial error, the judgment will be revers .</p> <p>(■Syllabus by Stewart, -0.)</p>

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action of forcible detainer by J. A. Jones against William Gunn. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Railroads -r- Crossing Accident —Question for1 Jury — Negligence.</p> <p>In the instant case, -under the testimony, there were issues of fact both as to negligence on the part of the railway company and as to contributory negligence on the part of the plaintiff, and the court did not err in submitting the entire question of negligence to the jury.</p> <p>2. Appeal and Error. — Instructions — Presumption — Reversal.</p> <p>Where the trial court in its instructions correctly stated to the jury the elements of damages that might be considered, and did not intimate that the jury might take into consideration any other matters in assessing damages, it will not be presumed that the jury considered other matters than those submitted by the court. A cause will not be reversed because the court did not specifically tell the jury not to consider other matters when the damages assessed are reasonable, and the defendant did not request the court to so instruct the jury.</p> <p>3. Damages — Lossi of Earning Capacity— Instruction.</p> <p>In a personal injury suit, if there is any evidence from which the jury may, assisted by their common knowledge, fairly assess damages on account of decreased earning capacity, it is not error for the court to instruct the jury that they may consider decreased earning capacity in assessing damages.</p> <p>4. Appeal and Error — Instruction — Damages — Reversal.</p> <p>It is the duty of the defendant in a damage suit to present to the court by way of requested instruction or in some manner to call the court’s attention to the defendant’s theory as to what matters the jury may consider in assessing damages. In case of failure on the part of the defendant so to do, and a verdict is rendered for damages which from the evidence is not excessive, and the defendant has made no assignment of error that the verdict is excessive, a cause will not he reversed because the court’s charge may not accurately define the measure of damages.</p> <p>5. Trial — Crossing Accident — Negligence —Instructions.</p> <p>While, as a general proposition of law, a moving railway train, on account of its momentum, has the right of way at a public crossing, yet in case where there is evidence to show that, when the plaintiff was first discovered by the engineer of the approaching train, the team of plaintiff was on the main railway track, having just passed over a switch higher than the main track which prevented the plaintiff .from backing his wagon and permitting the train to pass, and where the engineer admits that when he discovered the plaintiff’s peril he set the air brakes, but released the same because 1 he saw the plaintiff’s team pause, there also being testimony from which the' jury might reasonably conclude that, if the air brakes had remained set, the train could have been stopped before striking the plaintiff, it is not error for the court to refuse to instruct the jury that the defendant was not' required •to stop its train and give precedence or right of way to the wagon in which the plaintiff was riding to pass over the crossing first; there being other instructions given which fairly covered the issues.</p> <p>6. Same — Requested Instruction —• Refusal.</p> <p>In a suit brought by the plaintiff for personal injuries sustained at a public railway •crossing in which the plaintiff testified that he listened and did not hear the bell or whistle sounded, and that the same was not sounded, and was corroborated by the testimony of other witnesses, and the engineer on the train and other witnesses testified that the engineer rang the bell and sounded the whistle, it is not error for the court to refuse a special instruction requested by the defendant to the effect that, as a matter of law, the testimony of the plaintiff does not contradict such positive testimony of the engineer and other witnesses.</p> <p>(Syllabus by Stewart, 0.)</p>

<p>1. Forcible Entry and Detainer — Possession, — Burden of Proof.</p> <p>In an action of unlawful detainer of real property, the burden is upon the plaintiff to prove that the defendant was in possession of the property at. the time of the bringing of such action.</p> <p>2,i Landlord and Tenlant.— Rent — Payment —Burden of Proof.</p> <p>Under .section 3819, Revised Laws 1910, in the absence of a contract or usage to the contrary, the rent of real property under a month to month tenure is payable at' the termination of each month, and the burden is upon the plaintiff in an action of unlawful detainer, who seeks to charge the defendant with the duty of paying the same in advance, to prove either a contract or usage to such effect.</p> <p>3. Same — Increase of Rent — Termination of Tenancy — Notice.</p> <p>A tenant holding real property under a month to month rental contract is entitled to written notice of 30 days of the intention of the landlord to increase the rent or terminate the tenancy.</p> <p>(•Syllabus by iStewart, 0.)</p>

<p>fl. Justicies of the Peace — Trespass of I Stock — Assessment of Damages — Jurisdiction — Statute.</p> <p>Where a notice in writing has been filed in the office of a justice of the peace to view and assess damages occasioned by trespassing stock under the provisions of section 153, Rev. Laws 1910, such justice of the peace is not deprived of jurisdie:iou to view, and assess such damages, upon premises within his county, by reason of the fact that such premises are not within his township or justice of the peace district.</p> <p>2. Same.</p> <p>Where, with a justice of the peace, a proper notice to view and assess damages occasioned upon premises within his countv under the provisions of section 153. Rev. Laws 1910, has been duly filed and the assessment of damages made by such justice of the peace in writing as provided by section 154, Rev. Laws 1910, is entered upon his docket within his township or district, upon his return from such viewing of the premises, the fact that he goes out of his district in viewing the premises upon which such damages are alleged to have been occasioned does not render void the assessment of damages so made by such justice of the peace.</p> <p>(Syllabus by Rummons, O.)</p>

Error from (County Court, MoCurtain County; J. D. Parks, Judge. Action by the O. K. Houck Piano Company against ¡H. McBride. Judgment for defendant, and from an order granting plaintiff a new trial, defendant brings error.

Error from District Court, Kingfisher County; James B. .Cullison, Judge. Suit by the Jos. W. Moon Buggy Company against John Smith and another. Judgment for plaintiff upon the pleadings, and defendants bring error.