Volume 67 — Oklahoma Reports

<p>(Syllabus.)</p> <p>1. Trial — Demurrer to Evidence —Directed Verdict — Evidence.</p> <p>Under the procedure and. practice in tbis state in trials by jury, it is the -well-established and settled law that, even though the testimony is undisputed, it should be so convincing -that all reasonable men must draw the same conclusion from the facts proven, before the court is authorized to sustain a demurrer to the evidence, or direct a verdict.</p> <p>2. Master and Servant — Municipal Corporations — City’s Operation of Electric Plant — Liability — “Machinery” — Contributory Negligence.</p> <p>Deceased was employed by defendant as first engineer of its electric light plant, which position carried with it, practically, control and management of its plant. While so employed, it was his duty to work at and near two tube tanks and the arc light switchboard. These tube tanks were about 18 inches square, placed side by side. The arc light switchboard was about 15 inches to ■ the nearest tank, and had projecting 8 or 10 inches from the west side of it two electrodes, carrying constantly 2,300 volts of electricity, which furnished the current for defendant’s arc lights. A wire, uninsulated, and the metal clips on top of these electrodes, which were unguarded, ran underneath these electrodes. On the west side of the building, about 4 feet from these electrodes, was a washbasin. It was deceased’s duty to remove the tubes from these tube tanks daily and carry them to the washbasin and wash them, after which, to replace them in the tanks, and to clean up all the oil from the floor that had dripped from these tubes. It was while deceased was performing this duty that he came in contact with these electrodes, and received a shock of 2,300 volts of electricity, which, a few days thereafter, resulted in his death. Held, that defendant, in operating its bled-' trie plant, assumed the same responsibilities to its employes therein as are assumed by. private persons and private corporations, operating similar plants, that, owing to the,highly destructive agency in the manufac-’. ture of which defendant was engaged, it' is held to -a correspondingly high degree of.' care and foresight with ’ regard to reason-' able probable contingencies. Held, further, that these electrodes were “machinery” within the contemplation of Rev. Laws 1910, §. 3746, and a failure to properly guard the same is prima facie evidence of negligence on behalf of defendant, and that ordinary custom or usage in installing such machinery, unguarded, in disregard of a statutory duty, is not a test of negligence! Held, ¡further, -that the question of contributory negligence was fairly submitted to the jury, and such finding will not be disturbed.</p>

<p>Error from District Court, Hughes County; John Caruthers, Judge.</p> <p>Petition by Nathan Sanders, minor, by John Cordell, guardian and next friend, in the matter of the estate of James B. Sanders, deceased, praying distribution of the estate, to himself as the only heir at law, opposed by Elizabeth Sanders and others. Prom a judgment of the district court affirming a judgment against petitioner, he brings error.</p>

<p>(Syllabus.)</p> <p>1. Appeal and. Error — Parties — Joinder in Petition in Error.</p> <p>A joint judgment was rendered against B. and W., and the latter only filed a motion for a new trial. When it was overruled and exceptions saved. B. not only, joined with W. in securing an extension of time in which to make and serve a case, •but in making and serving the same and with him duly submitted it for settlement and signing; and, after the same was filed in the office of the clerk, also joined with him as plaintiff in error in the. petition in error attached to the ease-made in this court. Held, that W. is here as a proper plaintiff in error, and can assign as error both errors apparent on the judgment roll and errors occurring at the trial saved by his motion for a new trial. Held, further, that B, is here as a proper plaintiff in error, and can ‘assign as error such errors as are apparent on the judgment roll.</p> <p>2. Pleading — Departure — Objection.</p> <p>An objection to a pleading on the ground of a departure m!ust be raised by a motion to strike. It cannot be raised by a motion for judgment on the pleadings.</p>

<p>Courts — Supreme Court — Allegation of Jurisdiction — Rule of Court.</p> <p>Where the Attorney General, in an original proceeding in this court fails to observe rule 15 (47 Okla.' 'viii. 165 Pac. viii), the same will be dismissed.</p>

<p>Appeal from State Corporation Commission.</p> <p>Proceeding by the State of Oklahoma and citizens of Walters, Okla., against the Chicago, Rock Island & Pacific Railway Company and Jacob M. Dickinson, receiver. Prom an order of the Corporation Commission, the Railway Company appeals.</p>

<p>Error from District Court, Washington County: R. H. Hudson, Judge.</p> <p>Action by Zachariah Foreman against D. W. Marks and others. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Banks and Banking — Depositors’ Guaranty Statute — Application to Sell®©! Fund Deposit.</p> <p>Section 7943, Comp. Laws 1909, provided a specific system for the protection of any part of the permanent school fund deposited in any bank or trust company; and the protection extended to general depositors by virtue of (.he police power of tin* state, by virtue of section 323, Comp. Laws 1909, which created the depositors’ guaranty fund, did not apply to deposits of the permanent school fund.</p> <p>2. Same — Insolvency of Bank — School Fund Deposit — Distribution of Assets.</p> <p>Where, in May, 1909, the commissioners of the land office deposited certain moneys belonging to the permanent school fund in a certain institution which thereafter became insolvent and passed into the hands of the bank commissioner on September 29, 1909, wlio administered its affairs under the banking laws of the state, and where the assets of said institution wore insufficient to pay the general depositors, protected by the depositors’ guaranty fund, the deposit of the commissioners of the land office was not entitled to share in the assets of said institution.</p> <p>3. Constitutional Law — Due Process of Law - — Rights of Surety.</p> <p>Section 323, Comp. Laws 1909, as construed herein does not deprive a surety who executed a bond under the provision of section 7943, Comp. Laws 1909, securing a temporary deposit of any of the school moneys of the state, and who is compelled to repay same, of its property without due process of law.</p> <p>4. Constitutional Law — Privileges and Immunities — Security for Deposits of School Fund.</p> <p>An unconstitutional discrimination does not exist by reason of the guaranty of general deposits under section 323 and the security required for deposits of school funds under section 7943.</p>

Error from District Court, Oklahoma County; .Tames R. Tolbert, Assigned Judge. Action by the State of Oklahoma, on relation of H. C. Schilling, against the Oity of Oklahoma City and others. Demurrer -to petition sustained, and cause dismissed, and relator brings error.

<p>1. Appeal and Error — Assignments of Error — Consideration.</p> <p>Where an appeal is commenced in due lime after the rendition of a judgment in the trial court, an assignment of error, complaining of the overruling of a demurrer to plaintiff’s amended bill of particulars, may be considered, although the petition in error was not filed in the Supreme Court within (he time fixed for filing appeals when computed from the date of the order overruling said demurrer.</p> <p>2. Work and (Labor — Bill of Particulars— Sufficiency.</p> <p>Amended bill of particulars examined, and held to state a cause of action.</p> <p>3. Contract for Benefit of Third Person— Enforcement.</p> <p>A contract made expressly for the benefit of a third person may be enforced by him at any lime before the parties thereto rescind it.</p> <p>4. Tidal— Demurrer to Evidence — Sufficiency of Evidence.</p> <p>When defendant’s demurrer to plaintiff’s evidence was overruled and defendant thereafter offered evidence in his own behalf upon the very point wherein he claimed- plain-liff's evidence was deficient, and the cause «"as submitted to the jury without further exception to the sufficiency of the evidence, if upon all the testimony in the case the judgment was properly rendered, it Will not l)c disturbed on appeal.</p> <p>5. Work and Labor — Recovery for Threshing — Question for Jury.</p> <p>Evidence examined, and 'held sufficient to warrant the court to submit the case to the jury.</p> <p>6. Instructions — Thebry of Parties.</p> <p>Instructions examined, and held to fairly submit the case to the jury in accordance with the theory upon which the case was tried.</p>

<p>(Syllabus.)</p> <p>1. Chattel' Mortgages — Sale—Accounting of Proceeds.</p> <p>In the absence of fraud or bad faith when the holder of a chattel mortgage, after default, takes possession of the mortgaged- property and sells it in accordance with the provisions of the mortgage, he is accountable for the amount received therefor at such sale, less the proper expenses of keeping and sale, and is not accountable for the market value of the property when taken, if such value should prove to be greater than the price obtained.</p> <p>2. Chattel Mortgages — Default—Possession of Property.</p> <p>The only restrictions upon the mode by which the mortgagee secures possession of the mortgaged property, after breach of condition, is that he must act in an orderly manner and without creating a breach of the peace, and must not intimidate by securing the aid of an officer who pretends to act colore officii.</p> <p>3. Appeal and Error — Harmless Error — Exclusion of Evidence.</p> <p>As the evidence excluded was offered for (lie purpose of proving that that part of the property sold did not sell for a sum sufficient to pay the amount due the mortgagee, the action of the trial court in excluding this evidence constitutes reversible error.</p>

<p>(Syllabus.)</p> <p>Attorney and Client — Disbarment — Dismissal of Proceeding — Want of Prosecution.</p> <p>Report of referee approved, and proceedings dismissed for want of prosecution.</p>

<p>Error from District Court, Carter County; Stillwell H. Russell, Judge.</p> <p>Action by James Beasley against the Gulf, Colorado & Santa Fe Railway Company. Judgment for plaintiff, and 'defendant brings error.</p>

■ Error from District Court, Woodward County; J. C. Robberts, Judge.' Action between Luke B. Gollins and another and John Garvey and another. Judgment for the latter, and the former bring error.

<p>(Syllabus.)</p> <p>Limitation of Actions — Bar of Statute — “Out iof the State.”</p> <p>The theory of the statute of limitátions is that it operates to bar all actions, except as against persons and corporations upon whom notice of the action cannot be served because of their being out of the state. If such notice can be served during .the whole of the prescribed period, and a personal jiidgment obtained which can be enforced in the mode provided by law, then such- person or corporation is not “out of the state,” within the meaning of section 4660, Rev. Laws Olda. 1910, which provides: “If, when a cause of action accrues against a person, he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he so absconded or concealed; and if, after the cause of action accrues, he depart from the state, or abscond, or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be, brought.”</p>

Action by Emma Hartshorn against Eugene Hartshorn. Property of defendant was seized and sold under an execution issued on an order of .the Supreme Court allowing plaintiff alimony pendente lite and attorney’s fees, and she moves to confirm sheriff’s ’sale.

i Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action for alimony and divorce by Emma Hartshorn against Eugene Hartshorn, with cross-petition for divorce. Prayers of petition and of cross-petition denied, and plaintiff brings error.

Error from District Court, Choctaw County; C. E. Dudley, Judge. Suit by H. H. Hale against Ed V. Record to enjoin the latter’s use of the end of a public highway at the edge of a navigable river for the landing of a ferryboat. Defendant’s motion for judgment on the pleading sustained, and plaintiff brings error.

<p>(Syllabus.)</p> <p>1. Insurance — Life Insurance — Change of Beneficiary — Validity.</p> <p>The change of beneficiary in a policy of life insurance, which reserves to the insured the right to do so, made by the insured at a time when he was entirely without understanding, is void, and the right to the proceeds of the policy vests at the death of the insured in the original beneficiary.</p> <p>2. Same i— Substituted Beneficiary — Capacity of Insured.</p> <p>After the death of the insured, the beneficiary first named may contest the claims of the substituted beneficiary to the proceeds of the policy upon the ground of such, want of mental capacity of the insured to make the change in the original contract.</p>

Error from District Court, Garvin County ; F. B. Swank, Judge. Replevin by E. H. Scrivner against James H. McClelland, consolidated with a separate suit for injunction by McClelland against Scrivner, in which plaintiff Scriv-ner filed a cross-petition. Judgment for defendant, McClelland, on the pleadings, and plaintiff, Scrivner, brings error.

<p>Error from District Court, Comanche County; 'Cham Jones, Judge.</p> <p>Mandamus by the Maxwell Investment ■Company, a corporation, against W. D. Turner, as Commissioner of Finance of the City of Lawton, Okla. Writ awarded, and the commissioner brings error.</p>

<p>Error from District Court, .Seminole 'County ; J. W. Bolen, Judge.</p> <p>Action between Isadore Buckner and another and the Walton Trust Company. Judgment for the latter, and the former bring error.</p>

<p>Error from District Court, Oklahoma County; W. R. Taylor, Judge.</p> <p>Replevin by R. H. Fife against Frank Haskett and another, in which W. F. Essex intervened, claiming the property. Verdict for plaintiff, and intervener brings error.</p>

Error from District .Court, 'Craig County; Chas. G-. Watts, Assigned Judge. Application by Winifred T. Stanfield for an order requiring Wade S. Stanfield to show cause why he should not pay alimony past due, and for the determination of the amount due, with motion by defendant for the modification of the original decree. Motion of defendant denied, and amount due applicant on past installments fixed, and she brings error.

<p>(Syllabus.)</p> <p>1. Account, Action on — Payment — Acceptance of Notes — Recovery oh Open Account.</p> <p>The question as to whether or not a note taken for a pre-existing debt satisfied and extinguishes the pre-existing debt depends upon the intention of the parties, and is not a question of law, but one of fact for the jury. Hence it is held that a recovery canno.t be had upon an open account where the jury finds that notes had been accepted by the creditor as satisfaction of said account.</p> <p>2. Principal and Agent — Authority of Agent — Settlement of Account — Notes.</p> <p>Where the contract of sale of merchandise provides that the account may be settled “by cash or note,” and the creditor sends its representative to settle, and he settles by taking notes, with the distinct agreement that the notes should be in satisfaction of the account, held, that the contract contemplated two methods of settlement, either “by cash or note,” and that, when the creditor’s representative accepted the notes, as contemplated by the contract, and the creditor in turn accepted the result of his settlement, it cannot be contended that, in taking the notes in satisfaction of the account, the representative acted beyond the scope of his authority.</p> <p>Kane and Hardy, JJ., dissenting.</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Exceptions by' Lucy Anderson, nee Brown, and others,' to . the final separate accounts of William Anderson, .guardian ,of Lucy Brown and Nellie Brown, minors. . .Exceptions sustained, and «the guardian .surcharged with certain amounts, and he brings 'error.

Error from District Court, Garfield County ; James B. Cullison, Judge. Action between the City of Enid and Lillian L. McCann. Judgment for the latter, and the former brings error.

<p>(Syllabus.)</p> <p>1. Notaries — Action on Bond — Limitations.</p> <p>On July 31, 1915, O. F. M. .Co., a corporation, brought this action against J., B., and S., for damages, alleging that J., as notary public, on June 8, 1909, made false certificates of acknowledgement to two certain mortgages purporting to have been executed by A. and wife, to O. F. M. Co., to secure the payment of money; that B. and S. were sureties on J.’s notarial bond, dated February 13, 1908, and further alleging that the falsity of the certificates was not discovered by O. F. M. Co. until August 5, 1912. Held: First, that the cause of action accrued at the time of the making of the false certificates; second, that the special statute of limitations, providing that “no suit shall be instituted against any such notary or his securities more than three years after the cause of action accrues” (section 4249, Rev. Laws Okla: 1910), controls in the ease, and that on the face of the petition the cause of action is barred.</p> <p>2. Limitatian of Actions — Fraudulent Concealment — Effect.</p> <p>“■Fraudulent concealment constitutes an implied exception to the statute of limitations, and a party who wrongfully conceals material facts, and thereby prevents a discovery of his wrong, or the fact that a cause of action has accrued against him, is not allowed to take advantage of his own wrong by pleading the statute, the purpose of which is to prevent wrong and fraud.”</p> <p>3.Same — Negative Act.</p> <p>“The mere failure to disclose that a cause of action exists is not sufficient to prevent the running of the statute. There must be something more; some actual artifice to prevent knowledge of the facts; some affirmative act of concealment, or some misrepresentation to exclude suspicion and prevent inquiry.”</p>

Error from District Court, Tulsa County; L. M. Poe, Judge. Suit in equity by Charles A. Sanderson against J. Ered Dee, B. S. Davis, and others. Oase dismissed as to the defendants other than Davis, demurrer to plaintiff’s testimony sustained, and he brings error.

Error from District Court, Ottawa County ; Preston 'S. Davis, Judge. Action by Ida S. Allen against S. D. Newton and others, partners under the name and style of the Eureka Mining Company, Judgment for plaintiff, and defendants appeal.

Error from District Court, Woodward County; James W. Steen, Judge. Action by S. B. Laune and another against the Santa Fe, Liberal & Englewood Railroad Company and another. Judgment for plaintiffs, and the Santa Fe, Liberal & Engle-wood Railroad Company brings error.

Error from District Court, Stephens County; Cham Jones, Judge. Action by L. J. Ray, administratrix of the estate of H. E. Ray, deceased, against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and de* fendant brings error.

Error from District .Court, Oklahoma County; George W. Clark, Judge. ■Suit in equity by Frank E. Lee against O. H. Cameron and the Paden Oil Company, in which A. D. Morton. intervened and adopted the allegations of the plaintiff’s petition and asked for the same relief. Decree in favor of defendant Cameron, and plaintiff and the intervener bring error, and defendant Cameron files a cross-petition in error.

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by Myrtle Robertson against the Ponca City Ice Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Master and Servant — Mining Overseer— ¡Statutory Duties — “Fellow Servants.”</p> <p>By statute every operator of a coal mine in this state is required to employ a competent and practical inside overseer for each mine employing ten or more persons inside, to be called mine foreman, who shall have charge of the inside operations of the mine. These statutes also prescribe the qualification for such foreman and define his duties. Statutes examined, and held, that they require such foreman to devote the whole of his time to his statutory duties in the mine when in operation. Held, further, that such foreman is the servant and employe of the mine owner, and a “fellow servant” with a coal digger.</p> <p>2. Same — Instructions.</p> <p>Instructions examined, and held that the instructions of the trial court submitting the question of the scope of the duty of inspection of the foreman to the jury for determination are erroneous and misleading and constitute reversible error.</p> <p>3. Question of Fact — Contributory Negligence.</p> <p>Section 6, art. 23, Williams’ Constitution, provides: “The defense of contributory negligence or of assumption of -risk shall, in all eases whatsoever, be a question of fact, and shall, at all times, be left to the jury.”</p> <p>4. Master anti Servant — Mine Foreman’s Coniributbry Negligence — Assumption of Risk — Questions for Jury.</p> <p>The plaintiff, a mine foreman, in an aetion for personal injuries against the defendant, a mine owner, by whom ho was employed, alleged facts sufficient to constitute primary negligence on the part of a fellow servant, for which, by virtue -of section 36, art. 9, Williams’ Constitution, the mine owner would be responsible. The defense was a general denial, assumption of risk, and contributory negligence on the part of the plaintiff. Oh the trial there was evidence adduced on the part of the plaintiff reasonably tending to establish the primary negligence alleged. There was also' evidence conclusively showing that the plaintiff did not perform the duties of inspection cast upon him by statute. Held, that the question of contributory negligence or of assumption of risk on the part of the plaintiff are questions of fact to be submitted to the jury for determination under proper instructions.</p> <p>5. Master and Servant — Intervening Neg-. Iigence — Proximate Cause — Question for Jury.</p> <p>Where negligence on the part of the master is shown, whether the intervening negligence of the person injured is a proximate cause of the injury is a mixed question .of law and fact, and is, therefore, primarily one for the jury to determine under proper’ instructions. The court will not undertake to settle it in any case where it involves the weighing of conflicting evidence, the balancing of probabilities, and the drawing of inference.</p> <p>6. Master and Servant — Master’s Liability —Fellow Servants — Mining Company.</p> <p>Section 36, art. 9, Williams’ Constitution, is self-executing and abrogates the common-law doctrine of the fellow servant so far as it affects the liability of the master for injuries to his servant resulting from the acts or omissions of any other servant of the common master, as to every employe of every railroad company and every street railway company, and of every person, firm, or corporation engaged in mining in this state; and every such employe shall have the same right to recover for every injury suffered by him for the acts and omissions of any other employe of the common master that a servant would have If such acts or omissions were those of the master himself in the performance of a nonassignable duty.</p> <p>7. Dismissal by Plaintiff — Statute.</p> <p>Section 5126, Rev. Laws 1910, provides: “A plaintiff may, on the payment of costs and without an order of court, dismiss any civil aetion brought by him at any time before a petition of intervention or answer praying for affirmative relief against bim is filed in tbe action. * * * Such dismissal .shall be in writing and signed by the party or his attorney, and shall he filed with the clerk of the district court, the judge or clerk of the county court, or the justice, where the aetion is pending, who shall note the fact on the proper record: Provided, such dismissal shall be held to he without prejudice, unless the words ‘with prejudice’ be expressed therein.”</p> <p>8. Judgment — Res Adjudicata — Record.</p> <p>Record examined, and held, that the trial court did not err in denying defendant’s plea of res adjudicata.</p> <p>Thacker and Miley, JJ., dissenting.</p>

Error from District Court, Garvin County; P. B. Swank, Judge. Habeas corpus by P. Buel Adams, Sr., against Julia G. Campbell, to obtain custody of his infant son, P. Buel Adams, Jr. Judgment .for petitioner, and respondent brings errer.

<p>Error from District Court, Alfalfa County ; J. O. Robberts, Judge.</p> <p>Action by George W. May against Joseph Zehr and wife. Judgment for plaintiff, and •defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Highways — Road Tax — i Application ot Statute.</p> <p>■Section 433, Rev.' Laws 1910, applies to road taxes collected from residents of any incorporated city or town, and on account of real or personal propei’ty situated in said town, levied for town purposes, but does not apply to taxes levied by the county authorities for a county road and bridge fund.</p> <p>2. Statutes — Construction — Inconsistency —Effect.</p> <p>Where two statutes cover, in whole or in part, the same matter, and ar.e not absolutely irreconcilable, the duty of the court —no purpose to repeal being clearly expressed or indicated — is, if possible, to give effect to both. The construction is to be on the entire statute, and where one part is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions and opposed to the other, that construction which will render all sections of the statute harmonious must be adopted.</p>

Error from Superior court, Logan County; S. S. Lawrence, Judge. Action by O. O. Fish against the National Bank of Commerce, the Pauls Valley National Bank, and the First National Bank of Wynnewood. Judgment in favor of other defendants, and for plaintiff against National Bank of Commerce, and it brings error.

<p>(Syllabus.)</p> <p>1. Indians — Allotment—Constitutional Provision — Act of Congress — Repeal—Re-cordation of Instruments — Oil and Gas Lease.</p> <p>Section 2, art. 25, Williams’ Ann, Const., which extended all laws in force in Oklahoma Territory to the state of Oklahoma, including the laws regulating the recordation of instruments affecting the title to real estate, did not repeal Act Oong. March 1, 1907, e. 2285, 34 Stat. 1015, which provided that the filing of any lease in the office of the United States Indian agent., - Union Agency, Muskogee, Ind. T., shall be deemed constructive notice, but said a"t of March 1, 1907, survived, and an oil and gas lease filed in accordance therewith is effectual to impart notice to all persons subsequently dealing with the lands therein 'described.</p> <p>2. Same — Approval of Lease — Effect on Deed.</p> <p>Where C., a full-blood Creek citizen, executed an oil and gas lease upon his allotted land, which lease was filed in. the office of the United States- Indian agent, Union Agency, at Muskogee, and C. died before its approval by the Secretary of the Interior, and the heirs of O. thereafter conveyed said lands by deed duly approved by the county court, after which said lease was approved by the Secretary of the Interior, held, that the approval related back to the date of the lease, amd the grantors -in the deeds bjr the heirs of C. take title subject to said lease.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Assignments <of EiTor— Sufficiency.</p> <p>Where assignments of error are so indefinite and uncertain as not to point out the errors complained of, and do not direct the court’s attention to any fact showing cause for reversal, the Supreme Court will not consider them.</p>

Error from District Court, «Ellis County; T. P. Clay, Judge. Action by the Atchison, Topeka & Santa Fe Railway Company against T. J. Eldredge, Couinty Treasurer of Ellis County. Demurrer to petition sustained, and action dismissed, and plaintiff brings error.

Error from District Court, Beckham County; T. P. Olay, Judge. Action between the National Surely Company and the First Bank of Texola. Judgment for the latter, arid the former brings error.

Error from District Court, McOurtain County; C. E. Dudley, Judge.. Will contest by Lizzie Coleman (nee McCoy) against Mayo James, executor of the will of W. A. Coleman, deceased, and others. From a judgment of the district court, on the trial de novo on appeal from a judgment of the county court admitting the will to probate,, in favor of the defendants, denying the contest, and ordering the county court to probate the will, contestant brings error.

<p>Error from District Court, Oklahoma County; W. R. Taylor, Judge.</p> <p>Action by the E. B. Cockrell Holding Company against the ISpringfield Fire & Marine Insurance Company, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Corporations — Change of Name.</p> <p>Plaintiff was incorpoi'ated asad doing business under the name of S. C. S. Co., but changed its name according to law to the D. A. S. Co. Thereafter a bond was executed and delivered to it under its old name as obligee by C., as principal, with defendants T. and H. as sureties, guaranteeing the fidelity of C. while in the employ of plaintiff as salesman. D. A. -S. Co. sued C„ T., and H. for a breach of the bond. The evidence tends to show that, although its name was changed, there was practically no change in the organization or business of plaintiff; that after the delivery of the bond C. continued in plaintiff's employ as salesman; and that the change in the name did not affect the identity of the corporation. Held, that plaintiff was entitled to maintain a suit upon the bond.</p> <p>2. Pleading — Reply—“New Matter.”</p> <p>The. petition sought to' recover upon a contract and bond. Defendants filed a verified general denial. Held', that the answer did not constitute “new matter” under Rev. Laws 1910, § 4753, entitling plaintiff to a reply thereto, and that a motion to strike such reply should be sustained.</p>

<p>Error from District Court, Blaine County ; W. C. 'Crow, Assigned Judge.</p> <p>Action by F. G. Bonfils and another against Lee A. Akin. Judgment for plaintiffs, and defendant brings error.</p>

Original disbarment proceeding by the State against P. J. Breslin and J. E. Breslin. License of J. E. Breslin suspended for six months ,and proceeding against P. J. Breslin dismissed.

<p>Appeal from Corporation Commission.</p> <p>Proceeding between Jake B. Hamon and the State of Oklahoma and others. Judgment for the latter, and the former appeals.</p>

<p>Error from District Court, Oklahoma County; John J. Carney, Judge.</p> <p>Mandamus by the Wilkin-Hale State Bank against Robert Dunlop, as Treasurer of the State of Oklahoma. Peremptory writ awarded, and defendant brings .error.</p>

Error from County Court, McCurtain County; J. D. Parks, Judge. ■ Action by J. W. Skelton against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Forcible Entry and Detainer — Right of Action — Possession.</p> <p>The right to maintain an action of forcible entry and detainer is not determined by plaintiff’s right of possession, but by ■whether he has been in possession, and such possession has been taken from him by force.</p> <p>2. Appeal and Error — Question Of Fact-Verdict.</p> <p>Where 'the evidence is conflicitiing, the verdict of the jury will not be disturbed, if there is any evidence reasonably tending to support the same.</p>

<p>(Syllabus.)</p> <p>Payment — Payment by Check — Acceptance.</p> <p>Where a debtor assigned all his property to a trustee to be sold, and the proceeds paid to his creditors in proportion to the amount of their several claims, and the assignment provided that the amount received by the creditors accepting thereunder would be in full settlement, a-nd satisfaction of all claims of said creditors, and where the trustee voluntarily sent to a creditor who had refused to agree to the assignment or participate therein his check for the amount the creditor would have been entitled to had he agreed to become a party thereto, which check the creditor offered to accept as part, but not in full payment, if the debtor would consent, but which consent was refused, held, that the mere failure to .return the cheek without presenting same for payment or making other affirmative use thereof did not amount to an acceptance of same as payment in full satisfaction of the debt.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Parties.</p> <p>On appeal to the Supreme Court, all parties to the judgment which it is sought to reverse whose interests will be affected by a reversal of the judgment must either join in tb,e prosecution of an appeal, or be made parties defendant and be brought into this dourt by service of summons, when they do not voluntarily appear.</p> <p>Thacker and Miley, JJ., dissenting.</p>

<p>(Syllabus.)</p> <p>Counties —> Liabilities — Sheriff’s Fees and Expenses — limitation of Indebtedness.</p> <p>Moneys lawfully expended by a sheriff in the feéding of prisoners , and fees earned by him in the discharge of duties imposed upon him by the Constitution and laws of the state constitute- a valid Charge against the- county, and are not within the limitations imposed upon the county by section 26, art. 10 (section 291, Wms. Anno.) Constitution.</p> <p>Thacker, J., dissenting.</p>

Error from County Court, Pittsburg County ; S. F. Brown, Judge. Action by J. T. Stapleton against the American National Bank. From a judgment of the county court for plaintiff, on a trial de novo on appeal from justice’s court, defendant brings error.

<p>('Syllabus.)</p> <p>Appeal and Error — Petition in Error — Dismissal — Statutes.</p> <p>Where the judgment or order brought to this court for review antedates the act of March 23, 1917 (chapter 219, Laws 1917, p. 403), and, although more than six months have since expired, no praecipe for summons has been filed, nor summons served nor issued, nor has there been any waiver of such issuance or service of summons, nor a general appearance made by any defendant in error, a motion to dismiss the petition in error will be sustained.</p>

<p>Error from District Oourt, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by Marie Smith Hopkins against the American Bankers’ Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, McCurtain County; C. E. Dudley, Judge.</p> <p>Action between L. M. Merriett and others and R. C. Newton and others. Judgment for the latter, and the former bring error.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Assignment of Error —Sufficiency.</p> <p>“An assignment of error which in- effect merely alleges that the court erred in rendering judgment for one party and against the other presents nothing for this court to review.”</p> <p>2. Same — Petition in Error — Form.</p> <p>“The petition in error should, in a concise and specific manner clearly point out the particular error or .errors complained of and which it is sought to have reviewed.”</p>

Error from District Court, Alfalfa County ; James W. .Steen, Judge. Action by G. J. McDuffee against D. S.. Schuber, Reinhard Meier, and others. Judgment for plaintiff, and defendants Schuber and Meier bring error. On the death of plaintiff, judgment and proceedings in error revived in name of H. P. McDuffee, administrator.

, Error from District Court, Bryan County ; Jesse M.- Hatchett, Judge. Action by the Missouri, Kansas & Texas Railway Company against E. C. DYarmett, the Guaranteed State Bank of Durant, and others. Judgment in favor of plaintiff, and judgment for defendant the Guaranteed State Bank of Durant against defendant DYarmett denying a lien, and the Guaranteed State Bank brings .error, and DYarmett files a cross-petition in error.

<p>Error from District Court, Tulsa County; D. M* Po-e, Judge.</p> <p>"Action by James Egan against the First National Bank oí Tulsa. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Wilson Moffer, a minor, by Samuel G. Cumberledge, his next friend, against Bernard B. Jones, the Gypsy Oil Company, and others. Judgment for defendants, land plaintiff brings error.

<p>Error from District Court, Bryan County; Jesse M. Hatchett, Judge.</p> <p>Action by Mattie M. Lowrance, adminis-tratrix of the estate of E. S. Lowrance, deceased, against the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Washita County ; Thos. A. Edwards, Judge. ' Application toy Caroline Ptachek, .executrix, and Otto E. Tesmar, executor, of the estate -of Charles Ptachek, 'otherwise known a's Charles Bird, deceased, to designate certain lands as the homestead of Charles Ptachek, opposed by the German .State Bank of Elk City. Application granted by the county court, and from an order of the district court, affirming the order, the opponent brings error.

Error from District Court, Oklahoma County; W. R. Taylor, Judge. 'Suit by the Jefferson Life Insurance Company against Della Limerick, with cross-petition by defendant. Judgment for plaintiff, denying the cross-petition, and defendant brings error.

<p>Error from District Court, Creek County; Wade S. Stanfield, Judge.</p> <p>Action by Nancy Atkins, by her guardian, Micco T. Harjio-, against H. U. Bartlett, A. A. Hammser, the Gypsy Oil Company, "William S. Murphy, Wilber M Norris, W. H. Walton, and Ellis H. Hammet to recover real property and remove cloud from title of same. Judgment for plaintiff, and H. U. Bartlett, A. A. Hammier, a'id the Gypsy Oil Company bring error.</p>

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by Fannie E. Gray against the Continental Beneficial Association. Judgment for plaintiff, and defendant brings error.</p>

<p>Error -from District Oourt, Oklahoma County; W. R. Taylor, Judge.</p> <p>Action by J. L. Woody against the Jones Leather Company. Judgment for the plaintiff, and defendant brings error.</p>

<p>Error from District Court, Oklahoma County; W. R. Taylor, Judge.</p> <p>Suit by J. W. Sutton against H. M. Smith and another. Judgment for plaintiff, and -defendants bring error.</p>

Error from County Court, Tulsa County; H. L. Sta-ndeven, Judge. Action by N. J. Cates against W. P. Miles and others. From a judgment sustaining a demurrer to plaintiff’s second amended petition, he brings err-or.

Error from Bistriet Court, Okmulgee County; Ernest B. Hughes, Judge. Action by J. L. Terwilliger against Sol Haggerty, Martha Haggerty, and others. Judgment for plaintiff with a foreclosure of a mortgage lien against defendants Hag-•erty, and from the denial of their petition to vacate the judgment and for a new trial, they bring error.

Error from County Court, Okmulgee County; Mark L. Bozarth, Judge. Suit by William Lunsford against Lonnie McCann and others. Judgment against defendant McCann and in favor of the -other defendants, and plaintiff brings error.

<p>Error from District Court, Kingfisher County; James B. Cullison, Judge.</p> <p>Suit in equity by Sylvie E. Kale against Grant Humphrey, Lon Humphrey, as partners in the name of Humphrey Bros., Grant Humphrey, the Grant Humphrey Mercantile Company, a corporation, and Clyde Smith, ns sheriff of Kingfisher County, Okla., to enjoin the sale of an undivided one-half of the S. E. % of section 5 in township 15 N., range 8 W. I. M., in Kingfisher county, Okla., under an execution that had been levied up-en the same, and under any other execution that might be issued, and to enjoin the issuance of any other execution, upon a judgment in favor of Humphrey Bros., against Chas. W. Kale, and for a decree that the said Sylvie E. Kale is the absolute .owner in fee simple of all of said lands, and also of the S. E. % of section 13, township 15 N., range 9 W. I. M., in Kingfisher county, >Ofcla., and also that each and all of the defendants have no right, title, interest, or lien upon the aforesaid lands or any part of the same. Decree for the plaintiff as to said S. E. % of section 13, township 15 N., range 9 W. I. M., and against her as to said undivided one-half of S. E. 14 .of section 5, in township 15 N., range 8 W. I. M., in that the decree was that Humphrey Bros., by virtue ufi their said judgment, had and have a lien thereon, that a temporary injunction restraining the payment under said .execution be dissolved, and that said Humphrey Bros, shall not be further restrained from proceeding to enforce their judgment against the same. Plaintiff brings error.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by the Severns Paving Company and the City >of Oklahoma City against the Oklahoma Railway Company. Judgment for the Paving Company, and the defendant Railway Company brings error.

<p>Error from District Court, ■ Seminole County; Tom D. McKeown, Judge.</p> <p>Action by T. H. Smith against Frank R. Nee and D. A. Marlow to cancel a deed and to quiet 'title. Judgment for the plaintiff, and defendant Noe brings error.</p>

<p>Error from District Court, Oklahoma County; George W. Clark, Judge.</p> <p>Action by the Séver-ns Paving Company and the City of Oklahoma City against the Oklahoma Railway Company. Judgment for plaintiffs, and defendant Railway Company brings error.</p>

W. Clark, Judge. In the matter of the assessment of Mrs. Ida Rolater and another. From a judgment of the district court an appeal from the county.hoard of equalization fixing the valuation for assessment- of mortgaged' reil estate, the owners appeal.

<p>Appeal from District Court, Oklahoma County; Ceo. W. Clark, Judge.</p> <p>In the matter of 'the assessment of Mrs. Ida Rolater. From a judgment of the district court fixing a valuation of assessment of mortgaged real estate, the owner appeals.</p>

<p>(Syllabus.)</p> <p>Appeal) and Error — Question of Fact — Sufficiency of Evidence.</p> <p>Tliis being an action at law, and the testimony, in which there is sharp conflict, reasonably tending to support t-he verdict of the jury, the judgment of the lower court, based upon the verdict, will not be set aside on assignments of error depending upon the sufficiency of the evidence to support the verdict.</p>

<p>Error from District Court, 'Rogers County ; W. J. Campbell, Judge.</p> <p>Action by Wm. D. Matthews, Commissioner of Charities and Corrections in and for the State of Oklahoma, as next friend of Liddy Bateman, an incompetent and defective, against F. M. Rucker and another. Demurrer to petition sustained, and plaintiff brings error.</p>

<p>1. Appeal and Error — Discretion of Trial Ctourt — Continuance.</p> <p>A continuance of the trial of a cause is a matter of discretion, and refusal to grant a continuance will not work a reversal of the cause, unless it clearly appears that such discretion has been abused.</p> <p>2. Appeal and Error — Ruling on Motion for Verdict Non Obstante Veredicto— Review.</p> <p>Where an exception is not reserved to the overruling of a motion fo-r a verdict non obstante veredicto, this court will not consider the action of a trial court on such motion.</p> <p>3. Appeal and Error — Verdict—Sufficiency of Evidence — Necessity of Objection.</p> <p>Where the evidence is not challenged by a demurrer thereto, or by a request fo-r a directed verdict, this court, in a law case, will no-t consider the sufficienej’ of the evidence to support the verdict rendered.</p> <p>4. Bills and Notes — Evidence — Defenses— Want of Consideration — Parol Evidence.</p> <p>Where an action is brought by the original payee against the maker upon a promissory note, it may be properly pleaded as a defense that the amount of said -note was greater than the balance due, for which said note was given, and 'to the extent of such proved excess said note is without consideration, and evidence to support said partial want of consideration in the note sued upon is not in contravention of the rule that, the terms of an unambiguous written instrument cannot be varied toy parol.</p> <p>5. Costs — Attorney’s Fees — Evidence — Statute.</p> <p>Where an action is brought upon a promissory note for the foreclosure of a lien upon collateral given to secure the payment of said note, an attorney’s fee, under section 3877, Revised Laws 1910, may be awarded the successful party in the action and taxed ns costs, but the trial court is without authority to award such attorney’s fee without evidence as to the value of such attorney’s fee. (Thacker, J., dissenting.)</p> <p>6. New Trial — Newly Discovered Evidence —Diligence.</p> <p>A motion for a new trial should not he granted upon the ground of newly discovered evidence where it is shown by the motion for such new trial that the averred newly discovered evidence was known to the parties seeking the new trial prior to the trial of the cause.</p> <p>(Syllabus by Collier, O.)</p>

<p>(Syllabus.)</p> <p>1. Champerty and Maintenance — Avoidance of Deed — Grounds.</p> <p>To avoid a deed because it was executed in violation of section 2259, Rev. Laws 1910, making the buying of land in suit a misdemeanor, it must be ¡Shown that the grantee had knowledge of the pendency of a suit affecting the lands conveyed by the deed at the time of the execution thereof:</p> <p>2. Same — Second Conveyance by Allottee.</p> <p>H. went into possession of land allotted to M., a minor Greek freedman, under void conveyances executed toy M. during his minority. After reaching his majority, and when said lands were no longer restricted, M. .conveyed the same land to Montgomery by warranty deed. Held, that said conveyance was not cbampertous under the authority of Murrow Indian Orphan Home v. Mc-Clendon, 64 Okla. 205, 166 Pac. 1101.</p>

<p>(Syllabus.)</p> <p>1. Constitutional Law — Statutes — Vested Rights — Procedure — Prospective Operation.</p> <p>No one has a vested right in any particular mode of procedure for the enforcement or defense of his rights. Hence the general rule that statutes will be construed to be prospective only does not apply -to statutes affecting procedure; but such statutes, unless the contrary intention is clearly expressed or implied, apply to all actions falling within their terms, whether the right of action existed before or accrued after the enactment.</p> <p>2. Judgment — Res Ad judicata — Dismissal of Suit.</p> <p>The court under the provisions of section 4674, Rev. Laws 1910, dismissed a suit filed in Osage county on the ground that under that statute it had been brought in the wrong venue; but subsequently, -and while the right of action still survived, that section of the statute was so amended as to make Osage county the proper venue of the action, and another suit was then filed declaring upon the same cause of action, in that same county, and the court under this amended act assumed jurisdiction of the case. Held, this was -not res adjudicata, since under these conditions in passing upon the motion to dismiss in the last case filed, the court had an entirely 'different question before it to that passed upon in the motion to dismiss in the former case.</p> <p>3. Pleading — Motion—Demurrer,</p> <p>Where a petition states both a statutory and common-law cause of action', growing out of the same transaction, in one count, 'this is a defect that may be remedied on motion, but cannot, be reached by demurrer.</p>

<p>OSyllabus.)</p> <p>1. Vendor and Purchaser — Fraud — Value of Land — Expressions of Opinion.</p> <p>A purchaser of land cannot predicate fraud upon the statements made by the vendor which amount to mere expressions of opinion as to value, where the parties are on equal footing, have equal means of knowledge, and there 'is no relation of trust and confidence existing between them.</p> <p>2. Same— Misrepresentations.</p> <p>Where the purchaser undertakes to- make investigations of his own, and the vendor does nothing to prevent his investigation from being as full as he chooses to make it, the purchaser cannot afterward allege that the vendor made misrepresentations which amount to no more than an opinion as to the value.</p> <p>3. Evidence — Reputation — Fraud.</p> <p>In an action for damages based on fraud in a contract for the exchange of real estate, it was error to permit evidence that the 'general reputation of the plaintiff for being a truthful and honest man w,as good.</p>

Error from Superior ’Oourt, Oklahoma County; Edward Dewes Oldfield, Judge. . Action by the Oklahoma iSash & Door Company against the American Bonding Company. Judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Bryan County; Jesse M. Hatchett, Judge.</p> <p>Suit by the Western Silo Company, a corporation, against F. Manning. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Creek County; Tom D. McKeown, Trial Judge. Suit in ejectment and to clear title by Chotkey Wildcat, a minor, by his guardian, and others, against Cowokoehee, James A. Chapman, and R. W. McFarlin, with answer and cross-petition by Cowokoehee and by his codefendants to quiet title, and amended answer and cross-petition by Cowokoehee to amend an order of distribution, and application by Mm for the appointment of a receiver pendente lite.

<p>(Syllabus.)</p> <p>Railroads — Orders — Governmental Operation of Railroads — Effect.</p> <p>The Corporation Commission made an -order requiring appellant to remove i-ts present depot in the ci-ty of Miami and to replace same by a modern structure to be constructed •cf incombustible material and made fireproof, from which order appellant appealed. Since the submission of the case in this court the United States has taken charge of appellant’s line of railroad and is -now operating same. In view of this situation the order -o-f submission is set aside, and the cause continued until the further order of the court.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Jesse James Welch, a minor, by O. L. Clark, his legal guardian, against Adam Focht and others. Demurrers to petition sustained, action dismissed, and plaintiff brings error.

Error from District Court, Oklahoma County ; Edward Dewes Oldfield, Judge. Action by James Beaty against the Board of County Commissioners of Oklahoma County. Demurrer to petition overruled, and judgment for plaintiff, and defendant brings error.

Error from District Court, Muskogee County; R. P. De Graffenreid, Judge.- Action for divorce by E. A. Merrell against Ada M. Merrell. Decree for plaintiff, and from the action of tbe district court in setting aside tbe decree, plaintiff brings error.

<p>(Syllabus.)</p> <p>Guardian and Wal'd — Guardian’s Bond-Liability of Sureties.</p> <p>Sureties on a guardian’s bond executed under section 6564, Rev. Laws 1910, to authorize sale of real estate, are not liable for mis- ' appropriation by the guardian of funds not arising from the sale of the real estate in relation to which the bond was executed.</p>

<p>Appeal from State Board of Equalization.</p> <p>The Enid Electric & Gas Company appeals from the assessment o,f its property for taxation.</p>

The Muskogee Gas & Electric Company appeals from orders of the State Board of Equalization, assessing its property for taxation for certain years.

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Mandamus by the State of Oklahoma, on relation of H. H. Breene, Chief Deputy Inspector of Oil and Gas, against E. B. Howard, State Auditor. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from County Court, Stephens County; J. W. Marshall, Judge.</p> <p>Action by Will Weaver against 'the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Usury — What Constitutes.</p> <p>• To- constitute usury, there must either be a loan of money or forbearance of a debt for which the borrower pays and, the lender knowingly receives a higher rate of interest than that allowed, or such higher rate is reserved, charged, or secured.</p> <p>2. Same — Usurious Transactions — Commission.</p> <p>Where T. borrowed $2,610 from F. & Co. and by agreement executed his note for $5,-610 to include $3,000 commission claimed by F. & Co. on a prior transaction, the note was not rendered usurious by including this $3,-000, although the commission may not have been justly e'arned or may have been extortionate and unreasonable for the services rendered.</p> <p>3. Same' — Evasion of Law — Question for Jury.</p> <p>Where a note and mortgage executed for the_ loan of money are apparently fair on their face, and the interest reserved thereby, as disclosed by the terms of the instruments, is within the legal limit, but the claim is made that usury was charged under a pretended claim for commission on a prior transaction, the question as to whether the amount so charged was in good faith claimed as a commission, or was a cloak or device to evade ¡the law against usury, is a question of fact to be determined by the jury.</p>

<p>(Syllabus.)</p> <p>1. Constitutional Law — Impairment of Obligation of Contracts — Bond.</p> <p>Chapter 89, Laws 1910-11, created the public building fund, to be composed of the proceeds of the sale and rentals of section 33, and lands granted to the state in lieu ¡hereof for charitable .and penal institutions and public buildings, and authorized the issuance and sale of $3.000.000' bonds, which should be payable out of said fund, and pledged the faith of the state to safely keep and preserve the proceeds of such sale and rentals, and apply same to the payment of the bonds authorized by that act, and to no other purpose or purposes. Bonds were issued and sold to the amount of $2,451,000, of which there have since matured and been paid bonds in the amount of $447,500. In 1917 the Legislature made certain appropriations for public buildings payable out of surplus moneys in the public building fund. Held, that so long as the appropriations did not exceed the amount that would be due on the amount of bonds authorized but not issued, with the interest that would accrue thereon, the conditions of the contract of the state with the holders of outstanding bonds would not be impaired.</p> <p>2- Statutes — Coinstruction—Subsequent Legislation.</p> <p>Subsequent legislative enactment may be resorted, to as an aid in the interpretation of prior legislation upon .the same subject.</p> <p>3. States — Trust for Bondholders — Management.</p> <p>The state, as trustee for the bondholders, has the same powers as any other trustee would have under similar circumstances, and is under the obligation to exercise its powers for the conservation of the trust fund and the accomplishment of the 'trust purposes as a prudent man would exercise in the management of his own affairs.</p> <p>Thacker, J., dissenting.</p>

<p>(Syllabus.)</p> <p>1. Trial — ^Requested Instruction — Given Instruction.</p> <p>When an instruction is given which fairly contains the substance of an instruction refused, the refusal of such instruction does •not constitute reversible error.</p> <p>2. Master and Servant — Trial—Action for Injury — Instructions.</p> <p>Instructions given examined, - and held to correctly state the law applicable to the issues joined by ¡the pleadings and the evidence in a fair and impartial manner. Held, further, that in these circumstances, it is not error to refuse to restate the law of the ease in the more amplified form requested by one of the parties.</p> <p>3. Setting Aside Judgment — Graint of New Trial — Statute.</p> <p>Section 6005, Rev. Laws 1910, provides: “No judgment shall be set aside or new trial granted by any ¡appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”</p> <p>4. Appeal amd Error — Trial Errors — New Trial.</p> <p>After an examination of the entire record, we are unable to say that it appears that the errors complained of have probably resulted in a miscarriage of justice, or constitute a substantial violation of any constitutional or statutory right.</p>

<p>(Syllabus.)</p> <p>1.Taxation — Equalization — Appeal ■ — Presumption.</p> <p>On appeal from the state board of equal-iz i t.ioii; i r the absence of affirmative showing that an erroneous method of valuation was used, or that values not properly assessable were taken into consideration, the presumption is that the action of the board of equalization is correct.</p> <p>2. Taxation — Gas and Electric Plant — Depreciation and Replacement — Presumption. _</p> <p>In a proceeding for the purpose of assessing the property of a gas and electric company for the purpose of taxation, in the absence of evidence to the contrary, the presumption is that any natural depreciation in the value of its instrumentalities is provided for by replacements paid for out of the net earnings of the company, and that the plant of the company is always kept in an ordinary state of efficiency.</p> <p>3. Taxation — Uniformity — Discrimination —Value of Franchises of Gas and Electric Company.</p> <p>The consideration of the values represented by franchises held by a gas and electric company in determining the taxable value of the property owned ,by it does not violate the uniformity clause of 'the state Constitution, nor constitute an unjust discrimination against such company.</p> <p>4. Taxation — Valuation of Property — Earning Capacity.</p> <p>The earning capacity of property may be considered in arriving at its fair value, but its value cannot be determined by that cir-sumstance alone.</p>

Proceeding by the Corporation Commission against the Atchison, Topeka & Santa Fe Railway Company and others. From a rate order issued by the Commission, and from a denial of a motion for new trial, the Atch-ison, Topeka & Santa Fe Railway Company and others appeal.

<p>Error from District Court, Sequoyah County ; John H. Pitchford, Judge.</p> <p>Action by Charles Chappelle against the Incorporated Town of Sallisaw. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr„ Judge.</p> <p>In the matter of the assessment of the Conservative Loan Company, a domestic corporation for the taxes for the year 1915. From the assessment fixed by the county board of equalization the company appealed, and from the district court’s judgment fixing the assessment, the State appeals.</p>

<p>Error from District Court, Canadian County ; John J. Carney, Judge.</p> <p>Action by Western Electric Company against Hans. C. Paulsen and Henry Schafer and another. Judgment for plaintiff, and defendants, Paulsen and Schafer, bring error.</p>

<p>Error from District Court, Roger Mills County; T. P. Clay, Judge.</p> <p>Action by tbe Pittsburg Mortgage Investment Company against Earl W. Baber and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court Pottawatomie County; Chas. B. Wilson, Jr., Judge. In the matter of the assessment of the Amazon Fire Insurance Company, a domestic corporation, for the year 1915. From the assessment fixed by the county board of equalization, the company appealed, and from a judgment of the district court fixing the assessment, the State appeals.

<p>Error from District Court, Bryan County; Jesse M. Hatchett, Judge.</p> <p>Mandamus by C. D. Donaldson against James 'Yarbrough, Mayor of the City of Durant. Judgment for plaintiff, and defendant brings error.</p>

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by Gladys Bur-ton, a minor, by Maud F. Burton, her guardian and next friend, against the Title Guaranty & Surety Company of Scranton, Pa. Judgment for plaintiff, -and defendant brings error.

Error from County Court, Tulsa County; J. W. Woodford, Judge. Replevin by the Cable.' Company against A. L. Chase. Verdict for plaintiff, motion for new trial overruled, and defendant brings error.

Error from District Court, Haskell County; W. H. Brown, Judge. Action by Fred Cotton against Harry Welch and o.hers. Judgment for plaintiff upon a directed verdict, and defendants bring error.