Volume 70 — Oklahoma Reports

Error from District Court, Kiowa County; Thomas A. Edwards, Judge. Action in replevin by the Citizens’ National Bank of Woonsocket, R. I., against E. F. Paxson and another, in which the Iowa National Bank and the National Reserve Bank of Kansas City, intervened. From the denial of its motion to set aside special findings of fact and its motion for a new trial, the Iowa National Bank, intervener, lu-in,gs error.

Error from District Court, Oklahopia County; John W. Hayson, Judge. Suit by W. H. Ricks against James W. Busk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, and defendant bring error.

Error from District Court, Coal County; X H. Linebaugh, Judge. Action by the Coalgate Grain Company by way of motion or judgment on an appeal bond against Otto A. Shuttee, surety. Judgment for plaintiff, and defendant excepts and brings error.

<p>Appeal and Error — Frauds, Statute of — Theory of Case Below — Description of Real Estate.</p> <p>The parties upon appeal are bound by the same theories upon which they tried their case in the lower court, and, applying that rule to the case at bar, it is held, that the description of the real estate embraced in said contract is sufficient to take the transaction without the statute of frauds, and that the contract, is valid, binding, ami enforceable.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Kiowa County; Thomas A. Edwards, Judge. Action by J. F. Brown and B. AY. Poteet against G. 1). Thompson, James Grant, J. A. Krueger, and the Snyder Co-operative Association. Actions dismissed as to Krueger, and verdict for Thompson and Grant, and also a judgment for Brown and Poteet against the Snyder Co-operative Association, from which it brings error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Samuel Jones against Thomas R. Smyth and the Commerce Trust company, a corporation. Judgment for defendants, and plaintiff brings error.

<p>Guardian and Ward — Guardian’s Purchase of Realty — Ward’s Title — Petition to Recover Purchase Price.</p> <p>Where, a guardian without the authority of the county .court purchases real estate for his ward, the transaction being free from fraud, and causes a deed to be made to his ward therefor, the title to said property passes to the ward, and a petition filed by a subsequent, guardian against the vendor in said deed to recover the purchase price paid for the same, upon the sole ground that the conveyance to the ward passed no title because the order of (he court was made by a judge related to the then guardian within the prohibited degree provided by section 5812, Rev. Laws 1910, fails to state a cause of action, and a demurrei thereto was properly sustained.</p> <p>(Syllabus by Hooker,-('.)</p>

<p>Error from Superior Court, Muskogee County; H. O. Thurman. Judge.</p> <p>Action by State of Oklahoma, on the relation of G. W. R. Morrison, against -the City of Muskogee and others. Judgment for defendants, and plaintiff appeals.</p>

Error from District Court, Muskogee County; Chas. G. Watts, Judge. Action toy Edward E. Doering against the Muskogee Electric Traction Company. From a judgment of the district court, on appeal from a judgment for plaintiff in the justice’s court, directing a verdict for plaintiff, defendant excepts and brings error.

Error from County Court, Grant Ooun-iy; C. AV. Stephenson, Judge. The county attorney of Grant county filed information on behalf of the State as plaintiff against Jacob M. Dickinson and II. TJ. Mudge, receivers of the Chicago, Rock Island & Pacific Railway Company. Judgment for complainant, and defendants bring error.

Error from County Court, Carter County ; Thomas W. Champion, Judge. Suit by A. H. Whitefield and another against the St. Louis & San Francisco Railroad Company, James AV. Lusk, and others, receivers, etc. Judgment for plaintiffs in justice’s court, and from a judgment for plaintiffs in the county court on appeal, defendants bring error.

Error from County Court, Grant County; C. W. Stephenson, Judge. The county attorney of Grant county filed information on behalf of the State, as plaintiff, against Jacob M. Dickinson and H. TJ. Mudge, receivers of the Chicago, Rock Island & Pacific Railway Company. Judgment for the State, and defendants bring error.

<p>Error from District Court,' Stephens County; Cham Jones, Judge.</p> <p>Motion by the Comanche Ice & Fuel Company against Binder & Hillery to vacate a judgment. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal and Error — Joint Judgment — Par-ties.</p> <p>All parties to a joint judgment must be joined in a proceeding in error in this court, either as plaintiffs in error or as defendants in error, before such judgment can be reviewed.</p> <p>(Syllabus by Rummons, C.)</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by the Cleveland Trinidad Paving Company against L. P. Pax-tee. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Pawnee County ; Conn Linn, Judge. Action by G. B. Fuss against C. H. Cocan-nouer, as administrator of the estate of Margaret Cocannouer, deceased. Judgment for defendant, and plaintiff brings error..

Error from District Court, Tulsa County; Conn Linn, Judge. Action by J. E. Crane, as administrator of the estate of Laura Crane, against Johu A. Oliphant and C. B. Lynch. Judgment for plaintiff, and defendants bring error.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by J. E. Crane, as administrator of Laura Crane, deceased, and A. H. Harrison, as administrator of J. H. Harrison, deceased, against John A. Oliphant and O. B. Lynch. There was judgment for plaintiffs, and defendants bring error.

Error from County Court, Greek County; J. V. Frazier, Judge. Proceedings by the State against one Hudson Super-Six Automobile and Lizzie Goff and others, claimants. Judgment for the State, and claimants bring error.

Error from .County Court, Love County; J. H. Hays, Judge. Action by the State of Oklahoma to confiscate an automobile claimed by the State National Bank of Ardmore. Prom an order of confiscation, and the overruling of its motion for a new trial, the Bank brings error.

<p>1. Appeal and Error — Ruling on Demurrer —Exception—Necessity.</p> <p>A demurrer to the petition and the order of the court sustaining the same are a part of the judgment roll or record proper, and error of the trial court in passing upon said demurrer will be reviewed in this court, though no exceptó.us have beui taken to the riding of the trial court.</p> <p>3. Trusts — Resulting—Land Purchased for Ward — Enforiv;iui nt by Trustee.</p> <p>A guardian appointed to have charge of the iorsons and estates of four minors, by mistake petitioned rhe county court having jurisdiction to order the investment of funds alleged to belong to the estate of one of said wards, which order was duly made pursuant to said petition. Lands were purchased, the title to which was taken in the name of said ward, when in fact said guardian • had in nis possession no funds of said ward, the fund3 expended for suc^,lauds belonging to the estates of the other three wards. Sutil guardian, having resigned his guardianship, and a successor having been duly appointed and qualified, cannot maintain an action to declare a trust in said Ipnds in favor of the other wards, and to have the title divested from the ward in whose name it was taken and vested in the other wards whose money was expended therefor.</p> <p>3. Guardian • and Ward — Investment — Order — Mistake.</p> <p>A guardian, appointed in one proceeding for four wards, • is not protected in the investment in lands of funds belonging to the estates of three of said wards by an order of the county court, upon the petition of said guardian, which by mistake alleged that such funds belonged to the estate of the other of said wards, directing the said guardian to invest funds of such other ward in said lands, which investment was accordingly made and title taken in the name of said other ward.</p> <p>(Syllabus by Rummons, O.)</p>

<p>Insurance — Fire Insurance — Knowledge of Insurer — Estoppel.</p> <p>Where an insurance company issues its policy insuring certain property against loss by fire with full knowledge of the conditions of the title to said property, the nature of the interest of the insured therein, and of the changes made in the ownership at the time of the issuance and delivery of said policy, it is estopped from setting up as a defense in an action on said policy the facts and circumstances concerning the condition of the title of the property, the nature of the interest of the insured, and the change of ownership, of which it had knowledge and notice at the time of issuance of the policy.</p> <p>(Syllabus by Pryor, O.)</p>

<p>Error from District Court, Oklahoma County: John W. Hayson, Judge.</p> <p>Action on notes and to foreclose a mortgage by Fred W. Fleming against James M. McCornack and Elizabeth J. McCornack. Judgment for plaintiff, with order of sale, motion to vacate judgment overruled, and J. H. Everest, assignee under the sale, moved to confirm the sale, and from an order confirming the sale, defendants bring error.</p>

Error from District Court, Washita County ; Tilomas A. Edwards, Judge. Action by the Antrim Lumber Company to foreclose a mechanic’s lien against W. B. King and Minnie Zschornae!:. which Minnie Zsehornack was permitted to interplead, with answer and cross-petition by W. B. King to the petition of intervention, and in which the Antrim Lumber Company by demurrer to the evidence was eliminated from the ease.

<p>1. Indians — Allotment—Inheritance — Statute.</p> <p>The inheritance of lands allotted to a Creek Ereedman, who died after the taking effect of the Creek Supplemental Agreement of June 30,1902, c. 1323, 32 Stat. 500, and before statehood, is east according to chapter 49, Mansfield’s Digest of the Statutes of Arkansas, as modified by section 6 of such agreement.</p> <p>2. Same — Next of Kin.</p> <p>Subject to dower or to title by curtesy consummate, tbe inheritance of the allotted lands of a Creek Freedman, none of whose ancestors were of Creek blood or of Creek citizenship, who died intestate without issue, in the year 1903, is cast upon the nearest kin of the decedent of the nearest common ancestral lineage who are Creek citizens or Creek descendants of Creek citizens. In case of failure of such kinsmen, so qualified, the surviving spouse, if a Creek citizen or Creek descendant of a Creek citizen,-may take. In case of entire failure of such kinsmen or surviving spouse, meeting the requirements imposed, the inheritance shall go to non-citizen heirs in the order named in Mansfield’s Digest of the Statutes of Arkansas.</p> <p>3. Same.</p> <p>If a Creek Freedman, none of whoso ancestors were of Creek blood or of Creek citizenship, died in 1903 intestate and without issue, the fact that kinsmen, who are, themselves. Creek citizens, must trace their kinship to the decedent only through non-citizen blood, is not of itself a bar to inheriting allotted lands of the decedent.</p> <p>4. Same — Statute.</p> <p>Two brothers, Cherokee Freodmen, .one of whom is dead and the other living, would inherit, if both were living and not barred because of their noncitizenship in the Creek Nation, the allotment of a deceased Creek Freedman. The deceased brother left one child now living; the living brother has eight living children and one living grandchild. the offspring of his deceased child. The children of both brothers, including the grandchild, are Creek citizens through ma-'fernal blood. The deceased child likewise was a Creek citizen. The intestate died in the year 1903. Held, that under chapter 49, Mansfield’s Digest of the Statutes of Arkansas. construed in connection with section 6 of the Creek Supplemental Agreement of ,7 une 30. 1902, such living children, belonging to the same class of kin, take equally in their own right, and the grandchild takes its parent’s interest, by representation, each of the children and the grandchild named taking one-tenth interest in the inheritance.</p> <p>(Opinion by Stewart, C.)</p>

Error from District Court, Garvin County : F. B. Swank, Judge. Replevin by C. C. Walker and another against W. L. Hinton. Demurrer to amended petition sustained and cause dismissed, and plaintiffs bring error.

<p>1. Contracts — Contract in Writing — Oral Rescission and Substitution c£ New Contract.</p> <p>While under .section 988, Rev. Daws 1910, the parties to a written contract cannot alter the same by parol, they may, independent of the statute, rescind the written contract by parol and substitute therefor a new pa-tol contract; said section has no application to the new contract.</p> <p>2. Same — Specific Performance — Breach— Remedies.</p> <p>On breach of contract the injured party has his choice of three remedies in a proper case. He may sue on the contract for the damages he has sustained by reason of the breach, or he may consider the contract terminated by the breach and sue on the quantum meruit under an implied contract, and recover for his services and the amount expended by him on the contract, or he may have recourse to equity and compel a specific performance of the contract.</p> <p>(Syllabus by Pryor, O.)</p>

' Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by James T. Maloney against F.“ R. Letcher and the Canadian Oil & Gas Cortv-pany. Judgment for plaintiff, motion of defendant Letcher for new trial overruled, and lie brings error.

<p>1. Contracts — Building Contracts — Abandonment — Recovery.</p> <p>A building contractor who entered into a contract with the owner to furnish material and labor and to remove the old and build a new front in a storeroom according to plans and specifications and was to receive therefor the sum of $725, and after certain materials had been furnished and part of the labor performed on the contract, the contractor abandoned the work, the owner accepted the work done and materials furnished, completed the work at his own expense. Held, the contractor is entitled to recover for the work done and materials furnished according to the contract price, in proportion that the same hears to the completed work, less the damages sustained by the owner by reason of the contractor’s failure to complete the work.</p> <p>2. Same — Action—Findings—Evidence.</p> <p>Evidence,, examined, and held that same reasonably tends to support the findings and the judgment of the trial court.</p> <p>(Syllabus by Pope, O.)</p>

<p>Rills and Notes — Guaranty—Consideration.</p> <p>A promissory note must be supported by a lawful consideration; also, a contract of ■guaranty to answer for the obligation of another, made subsequent to the original obligation. must be supported by a distinct consideration.</p> <p>(Syllabus by Pryor, C.)</p>

<p>1- Constitutional Law — “Due Process of Law.”</p> <p>By due process of law is meant the enforcement of right or prevention of wrong before a legally constituted tribunal having jurisdiction over the class of cases to which the one in question belongs, with notice to the party upon whom the law exhausts itself or upon whose property rights it operates, with an opportunity to appear and be heard in his own defense.</p> <p>2. Same — Exercise of Powers of Commissioners of Land Office.</p> <p>The commissioners of the land office have authority to exercise such ministerial and judicial functions respecting the state’s school lands as may be conferred upon them by the Legislature, and the exercise of such powers is not a denial of “due process of law’’ under either the Fourteenth Amendment to the federal Constitution or section 7, art. 2, of the state Constitution.</p> <p>(Syllabus by Springer, C.)</p>

Error from District Court, Murray County; F. B. Swank, judge’. .Action .by the Bank of Commerce of Sul-phur, Okla., against C. J. Webster and another. . Judgment for defendants, and plaintiff brings error.

<p>1. Mechanics’ Lien — Subcontractor’s Lien— Statute.</p> <p>Under section 3864, Rev. Laws 1910, the theory upon which the lien of a subcontractor may be sustained is that' his material or lien has benefited the owner’s premises and if the lien statement is filed in the proper office within 60 days from the time the material is last furnished to the owner by the subcontractor, the statement is filed within the time authorized by statute.</p> <p>2. Sufficiency of Evidence.</p> <p>The evidence in this case examined, and it appearing that the material furnished by the subcontractor was delivered to the premises of the owner on December 3, 1917, and the lien statement was filed by the subcontractor within 60 days thereafter, the subcontractor is entitled to a lein upon said property to secure the payment of his claim.</p> <p>(Syllabus by Hooker, O.)</p>

<p>Replevin — Judgment—Evidence.</p> <p>The evidence in this cause is examined, and held, that there is not sufficient legal evidence to sustain the verdict and 'judgment of the trial court.</p> <p>(Opinion by Pryor, C.)</p>

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by Fannie A. Grey against the Knights and Ladies of Security. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Woods County; W. O. Crow, Judge. Action by the State of Oklahoma, on the relation of the Standard Savings & Loan Association, plaintiff, against D. P. Miller, County Treasurer of Woods County, Okla. From an order overruling a demurrer to plaintiff’s petition, defendant brings error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by R. E. Gilliam, as administrator of the estate of Jess Gilliam, deceased, against the Kali-Inla Coal Company, From an order of the court vacating a default judgment, plaintiff brings error.

Error from County Court, Carter County; Thos. M. Champion, Judge. Motion by Moran Scott to revive a judgment against Wesley A. Jackson, administrator of. Chin Goon, deceased. Motion sustained, and the administrator brings error.

<p>Appeal and Error — Record—Review.</p> <p>Errors occurring during the trial, no record appearing upon the record proper, cannot be considered by the Supreme -Court, unless the overruling by the trial court of motion for new trial is assigned as error.</p> <p>(Syllabus by West, O.'t</p>

<p>Error from District Court, Creek County: Ernest B. Hughes, Judge.</p> <p>Action by E. T. Ramey and others., against Annie Stephney and others. Judgment for defendants, and plaintiffs bring- error.</p>

Error from County Court, Oklahoma County; Wiliam H. Ewick, Judge. Action by the Burke Crain Company against L. Stinchcomb, doing business under the name and style of the Stinchcomb Grain Company. Judgment for defendant, motion for new trial overruled, and plaintiff brings error.

<p>1. Princ'pal an.l Agent — Action for Commissions — Defense.</p> <p>Where the contract made between the manufacturing company and the dealer provides that no commission shall be paid to the dealer unless the order of the purchaser is signed by the dealer, the same is no defense in an action by a dealer against the company for a commission for a sale of machinery, when it is alleged in the pleadings and established by the evidence that the failure of the dealer to sign the order was due to the act and conduct of the company.</p> <p>2. Same — Contract—Recovery.</p> <p>In such action, when the company refuses to recogirze the contract right of the dealer to a commission, the. dealer may sue and recover the entire amount thereof even though under the provisions of his contract the commission would be due and owing by tbe company as the purchase-money notes are paid by (be purchaser.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Oklahoma 0 Action by O. F. Kibhy against Kubie, Hei-mann & Co. and M. O. Binion, Sheriff of Oklahoma County, Okln., to enjoin the collec-Con of a judgment and to set off damages against the judgment. Judgment for defendants, motion for new trial overruled, and plaintiff brings error.

Error from District Court, Oklahoma County; George AY. Clark, Judge. Action by Marie J. Clapper and another against the Putnam Company and others. Prom a judgment for defendants, plaintiffs bring error.

<p>1. Bastards — Legitimation — Acknowledgment — Statute.</p> <p>Under the laws of Arkansas, which were extended over the Indian Territory, the only mode by which an illegitimate child could be made legitimate was by the marriage of the father and mother of such illegitimate child, and an acknowledgment by said . father that he was the father of such illegitimate child.</p> <p>2. Bastards — Inheritance — Declaration —Statute.</p> <p>Where the father of an illegitimate child dies intestate, the only njode by which such illegitimate child can be made an heir of the estate of such father, under the laws of Arkansas, which were extended over the Indian Territory, is for the father to have made a declaration m writing as provided for in section 2544, Mansfield’s Digest, and the said declaration must have been recorded as required by section 2545, Mansfield’s Digest.</p> <p>3.Indians — Allotment—Descent.</p> <p>A duly enrolled Seminole freedman, after receiving his allotment, died in 1901 or 1902, leaving surviving him a widow and a daughter, who had been enrolled as Chickasaws. Held, that the descent was cast under chapter 49, Mansfield’s Digest of Arkansas, and the question of whether or not the said widow and daughter are Seminole citizens is not involved in determining the descent of said land.</p> <p>(Syllabus by Collier, C.)</p>

Error from District Court, Alfalfa County; J. C. Robberts, Judge. Action by Charles M. Delzell, administrator of the estate of ffm. R. Addy, deceased, against Larkin S. Couch. Demurrer to petition sustained, judgment rendered for defendant for his costs and that the cause be dismissed, and plaintiff brings error.

Error from District Court. Choctaw County; C. E. Dudley, Judge. Action by the Reinhart & Donovan Company' against the Board of Commissioners of Choctaw County, Okla., and others. From an order sustaining a demurrer to the petition, plaintiff brought error on the transcript of the record, and S. C. Boswell appeared specially and moved to dismiss the appeal.

Error from District Court, Le Elore County ; W. H. Brown, Judge. The Central Coal & Lumber Company appealed from an order of the Board of Equalization of Le Elore County, Okla., raising an assessment and refusing a petition to vacate the order and from a judgment of the district court on appeal in favor of the Board, plaintiff brings error.

Error from County Court, Cotton County: J. C. Norman, Judge. Application by the State of Oklahoma to forfeit an automobile used without owner’s knowledge or consent in transporting intoxicating liquors in violation of law, with in-terplea by Mrs. Elvort J. Cox and the First National Bank. Interplea of First National Bank denied, and it brings error.

Error from District Court, Alfalfa County; James B. Cullison, Judge. Motion by the Nichols & Shepard Company against S. J. Sneary for an order that the entry of satisfaction of a judgment be set aside and expunged from the judgment docket and that the judgment be revived and that plaintiff have execution thereon. Demurrer to motion overruled, judgment for plaintiff, and defendant brings error.

<p>Sales — Construction of Contract — Time for Delivery — Tender — “Shipment During August.”</p> <p>In an action for damages for the breach of a contract for the purchase and sale of 5,000 bushels of wheat, which contract provides for shipment during August, it appeared that the seller loaded said wheat upon cars and procured bills of lading therefor during the last days of July; such bills of lading were tendered to the ijurchaser on August 5th, together with draft for the purchase price. The purchaser refused to accept such bills of lading or pay such draft for the reason that such bills of lading were issued in July. Held, that the words “shipment during August” contained in the contract, were not words of description, but that such words controlled the time of the performance of such contract and required •the purchaser to accept and entitled him to demand such wheat during the month of August, and that a tender 'by the seller of the bills of lading for such wheat to the purchaser during the month of August was a sufficient offer to ijerform the contract of the seller without regard to the time when such wheat was loaded for shipment, and ftiat upon a refusal by the purchaser to accept such wheat the seller was entitled to recover his damages for a breach of the contract.</p> <p>(Syllabus by Rummons, 0.)</p>

Error from District Court, Alfalfa County; J. C. Robberts, Judge. Suit for injunction and damages by B. R. Metcalf against Samuel H. Glaze. Judgment for defendant, and plaintiff brings error.

<p>1. Municipal Corporations — Paving Improvement — Resolution of Necessity — Jurisdiction.</p> <p>By the adoption and publication by the mayor and council of a city of a preliminary resolution, declaring the necessity of improvement by paving, guttering, and curbing the streets and alleys of a district in a city, said mayor and council acquire jurisdiction to proceed with the necessary steps to make such improvement.</p> <p>2. Same — Levy of Assessment — Jurisdiction.</p> <p>When, after the passage and publication of such preliminary resolution, the mayor and council proceed to improve the streets and alleys in such district, and duly give notice of the hearing on the return of the appraisers assessing the cost of such improvement, jurisdiction to levy assessents to pay the cost thereof against the abutting property is consummated.</p> <p>3. Same — Collection of Assessments — Injunction.</p> <p>Though the mayor and council adopt the resolution of determination to proceed with such improvement before the expiration of 15 days from the- last publication of the preliminary resolution of necessity in which protest against 'such improvement may be filed, as provided by section 616, Rev.. Laws 1910, an action to enjoin the collection. of special assessments, levied against abutting real estate to pay the cost of such improvement, commenced more than 60 days after the passage of the final assessing ordinance, is barred by the special statute of limitation contained in section 644.</p> <p>4. Same — Number of Petitioners — Priesump-tions.</p> <p>Whether the owners of more than one-half in area of the land liable to assessment in a paving district signed a petition for paving is a question of the mayor and council of the city to determine before taking action pursuant to said petition, 'and, in the absence of an attack, either directly or collaterally upon their finding, it must be presumed that they found that the petition contained the requisite number of names, and that such finding is correct.</p> <p>5. Same — Special Assessment — Action for Injunction — Limitations.</p> <p>When the mayor and council of a city act upon a petition for paving, purporting to be signed by the owners of more than one-half in area of the land liable to assessment for such paving, grant said petition, proceed thereunder to improve the streets and alleys as prayed in said petition, and give notice as required by law of the hearing on the return of the appraisers, assessing the cost of such improvement, without protest or objection to the sufficiency of such petition, an action, commenced more than 60 days after the passage of the final as sessing ordinance, levying special assessments against abutting property to pay the cost of such improvement, to enjoin the collection of such assessments, upon the ground that such petition was not signed by the owners of more than one-half in area of the land liable to assessment, is barred by the special statute of limitation.</p> <p>6. Same — Relief Against Assessment ■— Laches.</p> <p>A municipality having acquired jurisdiction by (lie passage of the proper resolution declaring the necessity of a street improvement, and no sufficient protest or objection thereto having been filed, a property owner, who stands idly by while such street improvement is being prosecuted, with full knowledge that large expenditures are being made for such improvement which will benefit his property, and that a portion of the cost thereof will be assessed against his property, and wdio fails to appear at the proper time and present his objections before the proper tribunal, will not, long after the work is completed, be afforded relief in equity against assessments levied against the property benefited to pay for such work.</p> <p>(Syllabus by Rummons, C.)</p>

Error from County Court, Tulsa County: J. W. Woodford, Judge. Action by the Grosman Company against William P. Milos and another. Judgment for plaintiff on the pleadings, and defendants bring error.

<p>1. Allegations of Execution of Written Instrument — Verified Denial.</p> <p>Under the provisions of section 475!), Iiev. Laws 1910, in all actions allegations of the execution of written instruments or of any power or authority shall be taken as true, unless the denial of the same is verified by the affidavit of the party or his attorney.</p> <p>2. Indians — Conveyance of Allotment — Title of Grantee — Statute.</p> <p>The conveyance of a portion of the allotment of a member of the Citizen Band of Pottawatomie Indians of Oklahoma in excess of 80 aeies, approved by the Secretary of the Interior under the terms of Act Cong. Aug. 15, 1894, c. 290 (28 Stat. 286), extinguishes the Indian title, and the grantee holds such lands free from any restrictions upon alienation.</p> <p>3. Indiians — Partial Conveyance of Allotment — Title of Grantee — Patent—Statute.</p> <p>A patent thereafter issued to such grantee containing the provisions set forth in Act Cong. Peb. 8, 1887, e. 119 (24 Stat. 388), to the effect that the United States does and will hold the land for the period of 25 years, in trust for the sole use and benefit of the Indian or in case of his decease of his heirs, according to the laws of the state or territory where such land is located, and at the expiration of said period the United States will convey the same by patent to said Indian or his heirs as aforesaid, in fee, discharged of said trust and free of any charge or incumbrance whatsoever, does not have the effect of reimposing restrictions upon the alienation of said lands by said grantee.</p> <p>4. Judgment — ¡“Collateral Attack.”</p> <p>A “collateral attack” on a judgment is an attempt to avoid or deny its force and effect in some incidental proceeding not provided by law for the express purpose of attacking it.</p> <p>5. Same — Finding of Jurisdictional Facts— Conclusivenless.</p> <p>A finding of the jurisdictional, facts in a domestic judgment is conclusive in a collateral attack upon such judgment attempting to again put such facts in issue.</p> <p>(Syllabus by Rummons, O.)</p>

Error from Histrict Court, Garvin County; P. B. Swank, Judge. Action by the Lucky Strike Oil & Gas Company against the North British & Mercantile Insurance Company. Verdict and judgment for plaintiff, motion for new trial overruled, and defendants brings error.

Error from Superior Court. Pottawatomie County; Leander 6. Pitman, J udge. Action by Alice Blunt against the Chicago, Rock Island & Pacific Railroad Company and William Barnes. Verdict and judgment for plaintiff, motion for new trial sustained, and plaintiff brings error.

<p>Error from District Court, Beaver County ; W. C. Crow, Judge.</p> <p>Action- by R. M. Groseclose against T. Clifford and others to enjoin a sale under execution and to set aside a judgment rendered against him bv a justice of the peace in his action against Clifford. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Logan County ; A. H. Huston, Judge. Action by the State of Oklahoma against J. S. Herber, as surety on appeal bond given by one Lou Green in an appeal from a conviction in a criminal action. Judgment for defendant upon a directed verdict, and the plaintiff brings error.

<p>Error from District Court, Rogers County; AY. J. Campbell, Judge.</p> <p>Suit originally begun by the First National Bank of Muskogee to foreclose a mortgage against Edward L. Rees, W. G. Brockman, Charles N. Simon, and N. J. C. Johnson and others, in which W. G. Brock-man and N. J. C. Johnson filed an answer and cross-petition to which defendant Rees filed an answer. The bank’s motion for leave to withdraw was granted, and judgment was rendered in favor of the defendant Rees, and Brockman. Simon, and Johnson bring error.</p>

<p>Error from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by Walter W. Morton and William P. Morton against John Smith. Judgmént for plaintiffs, and defendant brings error.</p>

Error from District Court, McCnrtain County: Chas. B. Wilson, Jr., Assigned Judge. Suit by Frank Yawitz against Wallace G. Hopkins and T. W. Hopkins, as guardian, and another. Judgment for defendants, and plaintiff brings error.

<p>Error from Superior Court, Muskogee County; H. C. Thurmon, Judge.</p> <p>Action by the Chestnut-Gibbons Grocery Company against J. M.' Simmons. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Process — Service of Summons — Sufficiency — Juris diction.</p> <p>In all cases where neither general appearance is made nor service of summons waived, summons must be served by delivering a copy thereof to the defendant personally or by leaving a copy at his usual place of residence, with some member of his family over 15 years of age, at a time before the return day, and the leaving of a copy at his usual place of business with his business manager is insufficient to confer jurisdiction of the person.</p> <p>2. Justices of the Peace — Waiver of Jurisdiction-Bill of Exceptions — General Appearance.</p> <p>In an action brought before a justice of the peace, the defendant may, by special appearance for such purpose, contest the jurisdiction of his person, and, in case the justice of the peace overrules his objections, may ixreserve bill of exceptions, file super-sedeas. bond, and have the action of the justice of the peace, on the question alone of jurisdiction of the person, reviewed by the county, superior, or district court by petition in error and bill of exceptions, and the pursuing of such course will not constitute a general appearance or waiver of jurisdiction of the person.</p> <p>3. Justices of the Peace — Appeal—General Appearance — Waiver of Jurisdiction.</p> <p>The filing of a bond for the purpose of an appeal to the county, superior, nr district court on both the law and the facts from a judgment of a justice of the peace invoices the jurisdiction of the appellate court for all purposes, and constitutes a ■ general appearance, being' a waiver of objection to the jurisdiction of the person of the appealing party.</p> <p>4. Judgment — Presence of Party and Counsel — Vacation of Judgment-Casualty.</p> <p>A party to a cause and his attorney aré required to use reasonable diligence to be present at the time the cause is set for hearing, but, if absent because of unavoidable casualty which could not have been prevented or foreseen by the use of ordinary prudence, and in such absence an adverse judgment is rendered, the judgment should be set aside, on proper terms as to costs, and another trial had when such casualty is duly made to appear to the court and there is a showing of a meritorious cause of action or ground of defense.</p> <p>(Syllabus by Stewart, C.)</p>

Error from District Court, Washington County; R H. Hudson, Judge.. Action by the Union National Bank of Bartlesville against M. C. Lausten and others. Judgment against defendants by default, defendant Lausten’s motion to vacate the judgment denied, and he brings error.

Error from District Court, McClain County : E. B. Swank, Judge. Action by William A. Taylor, by bis guardian, J. F. Keesban, against Cairroll A. Taylor, former guardian, and tbe Southwestern Surety Insurance Company, as surety on bis bond. Judgment for plaintiff,, and defendant Southwestern Surety Insurance Company brings error.

Error from District Court, McClain County : P. B. Swank, Judge. Action by Dora Y. Tayh r, by her guardian, J. P, Keeshan, against the Southwestern Surety Insurance Company and Carroll A. Taylor'. Judgment fot p’lájntiff, and the defendant company brings error.

<p>Error from District Court, Seminole County: Tom D. McKeown. Judge.</p> <p>Suit by Mabel A. Clark against the Continental Casualty Company Defendant’s demurrer to the evidence overruled, and verdict directed for plaintiff, motion for a new trial denied, and on plaintiff’s motion for a new trial judgment increased, and defendant brings error, and plaintiff brings cross-error.</p>

<p>1. Mortgages — Fraud.</p> <p>A guardian entered into and carried out a conspiracy resulting in a fraudulent sale of his ward’s land. Such sale was made under order of the county court, and the proceedings in regard thereto, on their face, were regular, including a deed to a bogus purchaser, who subsequently, in furtherance of the conspiracy executed, without consideration, a deed to another conspirator for said lands, who secured a loan from an investment eomiyany, and executed a mortgage upon said land to secure the payment of the loan, which mortgage was by the trial court ordered to be canceled upon the ground of fraud, but the court found that no actual knowledge of such fraud came to such investment company. Held that, in the absence of proof that such investment company had knowledge of facts which, if followed, would have disclosed the fraud practiced in the sale of said lands, it was reversible error to order said mortgage canceled.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser — Knowledge.</p> <p>Knowledge by a purchaser .of land that the grantor under whom the vendor claims is in possession thereof is not such knowledge as to put the purchaser upon inquiry as to the title of such grantor.</p> <p>3. Mortgages — Bona Fide Purchaser— Knowledge — Evidence.</p> <p>The evidence in this case carefully examined, and found that the weight .thereof is against the conclusion of the court that: “The E. B. Collins Investment Company making the loan, had such knowledge of facts as should have put it upon inquiry, which inquiry, followed up, would have given it notice of the fraud perpetrated in the sale of the property by W. M. Waide, as guardian of Harold L. Waide, to Roy E. Burks.”</p> <p>4. Holder In Due Course — Statute.</p> <p>When it is shown that the title of any person who has negotiated a negotiable instrument was defective, the burden is on the holder to prove that he or some person under whom he claims acquired the ti-tile as a holder in due course.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from District Court, Custer County; Thos. A. Edwards, Judge.</p> <p>Action by the Farmers’ State Guaranty Bank against C. E. Cromwell. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, McIntosh County; R. W. Higgins, Judge. 'Suit by the Continental Gin Company against T. E. Moore. Plaintiff’s motion for-judgment on -the pleadings sustained. Motion for new trial overruled, and case brought up by case-made and petition in error.

<p>Error from County Court, Payne County; W. R. Jones, Judge.</p> <p>Action by Bell Smith against J. A. Alexander. Judgment for plaintiff!, and defendant brings error.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by the State of Oklahoma, on relation of C. Caldwell, County Attorney, and Jas. F. McCullough, Clerk of the County Court, against H. J. Swarts and the International Bank & Trust Company. Judgment for plaintiffs, and defendants bring error.

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. An action by W. H. Thompson against Matilda J. Thompson, for divorce. Judgment for plaintiff, granting a decree of divorce and defendant brings error.

<p>Error from County Court, Jefferson County; Ben F. Saye, Judge.</p> <p>Action by E. J. Kelley and others against the Cushman Motor Works Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Delaware County; John H. Pitchford, Judge.</p> <p>Action by the J. I. Case Plowworks against W. R. Stewart. Judgment for defendant, and plaintiff brings error.</p>

<p>Brokers — Action for Commission — Defenses.</p> <p>In an action for a commission for the leasing of some land for oil and gas purposes, it is no defense that the agent did not procure a written lease or contract, where the lessor failed to comply with his contract, and the nonproeurement of the contract or lease was due to his own act.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from District Court, Tulsa County ; W. J. Campbell, Judge.</p> <p>Action by J. J. Oallendar against the Gem Oil Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, . Okmulgee County; Wade S. Stanfield, Judge. Suit by Herbert E. Smith against Edmund Hardridge and others, to enforce an attorney’s employment contract executed by defendant Hardridge. Judgment for plaintiff, and defendants bring error.

<p>1. Appeal and Error — Time for Case-Made —Extension.</p> <p>An order made by the trial court extending the time for making, serving, and settling a case-made bejmnd the period of 6 months within which an appeal may be had is a nullity, but does not operate to prevent the subsequent making of a valid order rf extension. The trial court may, afterwards and before the expiration of an extension theretofore properly allowed, extend and limit such time to a date within the 6 months allowed for appeal.</p> <p>2. Same — Notice—Review.</p> <p>The trial court may extend and limit the time for making, serving, and settling a case-made without notice to the appellee and without the appellee being present at the time the order is made, and the finding of the trial court that good cause is shown cannot be reviewed on appeal.</p> <p>(Syllabus by Stewart, O.)</p>

<p>1. Appeal and Error — Presumptions — Dismissal of Suit — Statute.</p> <p>Where plaintiff, under section 5126, Rev. Laws 1910, files motion to dismiss his cause of action, it is one of the conditions precedent to the automatic • dismissal of said suit under said section that all costs be paid, and where in such case the defendant filed motion to strike the files on account of said motion being filed by plaintiff, and the same is by the court overruled, the presumption that goes with this action of the court (there being no evidence to rebut such presumption) is that the conditions precedent for the automatic dismissal of said suit were not complied with, or that the filing of said motion was obtained by fraud, and in either event said motion would be ineffectual to the automatic dismissal of said cause.</p> <p>2. Contracts — Indians—Commission on Sale of Inherited Interest in Allotment — Approval by County Court — Validity of Contract — Recovery of Money Paid.</p> <p>Where W., a full-blood Indian, makes a contract with M. wherein he agrees to pay M. all money in excess of a certain sum for which M. may sell his interest in an inherited allotment, and such contract is withheld from the knowledge of the county court who has jurisdiction to approve such sale under Act Congress May 7, 1908, c. 199, 35 Stat. 312, which contract had 'the effect, if not the purpose, of securing the approval of the county court to a conveyance for a less consideration than would have secured the approval of the court, had it been aware of the contract, this would render such contract void as between the parties, and W. would have a right to recover any sums of money paid M. under said contract, whether paid voluntarily or otherwise.</p> <p>(Syllabus by West, C.)</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Action for injunction by Bessie Tyrell, nee Offutt, and others, against Charles B. Shaffer and another. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Error from District Court, Marshall County. Ejectment by Sarah Lewis and others against Jno. G. Gillard and others. Judgment for defendants, and plaintiffs bring error. Reversed, with directions to enter judgment for plaintiffs, except as to Webb Lewis. Ejectment by Sarah Lewis and others against Buck Gardner and others. Judgment for plaintiffs, except as to Webb Lewis, and defendants bring error.

<p>1. Homestead — Oil and Gas Lease — Consent of Husband and Wife.</p> <p>An oil and gas lease covering a homestead which grants the right to enter upon the same and operate for oil and gas, together with the right to lay pipe lines, telephone and telegraph lines, and erect power houses, stations, fixtures necessary for the' production of oil and gas, is such a grant of the use and occupancy of the homestead as requires the joint consent of both the husband and wife.</p> <p>2. Same — Consent of Wife — Evidence.</p> <p>The evidence in this cause examined, and held, that -the same is insufficient to show that the wife’s consent to the execution of the oil and gas lease in controversy was given, and that there is no evidence showing any act or acts on her part which would operate to estop her asserting the invalidity of the lease.</p> <p>(Syllabus by Pryor, C.)</p>

Error from District Court, Beckham County ; T. P. Clay, Judge. Action by the National Bank of Commerce of St. Louis, Mo., as plaintiff, against D. A. Mayer and Calvin M. Rosser, as defendants, in which the State Exchange Bank of Elk City is interpleaded by said defendants. Prom judgment, in favor of defendants, Mayer and Rosser, and against the inter-pleader, the State Exchange Bank of Elk City brings error.

Error from District Court, Johnston County; J. H. Linebaugh, Judge. Action by Mrs. Hattie McLaughlin against the Liverpool & London & -Globe Insurance Company. Verdict for plaintiff. A judgment overruling a motion for a new trial was rendered, and defendant brings error.

Error from District Court, Delaware County; John H. Pitchford, Judge. Suit by Ausley A. Welch and another against D. F. De Priest and another. Judgment for complainants, and defendants bring error.

Error from District Court, Carter County ; W. F. Freeman, Judge. Action by Sam G. Wood against Etta wood. From an order of the district court, committing the plaintiff to the county jail until he complies with an order of the district court for payment of alimony, plaintiff brings error.

<p>Error from District Court, Carter County ; W. F. Freeman, Judge.</p> <p>Action by C. E. Burch, guardian, against Porter Staples. Judgment for defendant, and plaintiff appeals.</p>

<p>Appeal and Error — Dismissal and Nonsuit —Assignments of Error — Motion for New Trial.</p> <p>The refusal of the court to permit the plaintiff below, after the introduction of its evidence, to dismiss its. cause of action without prejudice, to which it excepted, was error, and in order for same to be reviewed here it is not necessary for the error to be assigned in the motion for a new trial.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>1. Appeal and Error — Assignments of Error — Necessity.</p> <p>Where plaintiff fails to assign as error the overruling of a motion for a new trial, this court will not review the sufficiency of the evidence to support the verdict.</p> <p>2. Statutes — Special Legislation — Uniform Operation! of General Laws.</p> <p>Sections 3765 and 3768. Rev. Laws 1910, are not in contravention of section 59, art. 5 of the Constitution of the state of Oklahoma.</p> <p>3. Constitutional Law — Fourteenth Amendment — False Inducement to Enter Employment.</p> <p>That part of section 3768, which provides that, “in addition to the actual damages that a workman may have sustained, he shall be entitled to recover such reasonable attorney’s fee as the jury may fix,” is not vio-lative of the fourteenth amendment of the Constitution of the United States.</p> <p>(Syllabus by Collier, O.)</p>

<p>Error from District Court, Coal County; J, H. Linebaugh, Judge.</p> <p>Action by C. A. Mayo and another, doing business under the partnership name of Mayo Furniture Company, against Robert Galbreath. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Pontotoc County; J. W. Bolen. Judge.</p> <p>Action by W. R. Phares against the First National Bank of Ada, a corporation. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by John H. IColler and others against Mrs. Viola Russell, formerly Mrs. Viola Easterday, and others. Judgment for plaintiffs. From a judgment confirming execution sale of pr< perty claimed as a homestead defendant Russell brings error.</p>

<p>Error from District Court Garfield County ; James B. Cullison, Judge.</p> <p>Action by Dorsey Benner against the Oklahoma Automobile Company, a corporation. ' Judgment for plaintiff, and defendant brings, error.</p>

Error from District Court, Harper County; W. C. Crow, Judge. Action by J. S. Harding against I. N. Wag-goner wherein Lyman L. Bunker intervened. Judgment for Harding against defendant and the intervener, and the latter brings error.

<p>Error from District Court, Osage County; R. H. Hudson, Judge.</p> <p>Suit by Ada O. Mongrain against W. H. Aaron and qthers. Erom a judgment for defendants on the pleadings, plaintiff appeals.</p>

<p>Error from' District Court, Cherokee County; John H. Pitchford, Judge.</p> <p>Suit by Plora N. Holland against Robert B.Holland for divorce, in which plaintiff obtained a decree’of divorce. Prom a judgment refusing defendant’s motion to vacate the decree, he brings error.</p>

<p>Error from- District Court, Pontotoc County; J. W. Bolen. Judge.</p> <p>Action by Edward Granger against S. P. Taylor. Judgment for plaintiff, and defendant brings error. Affirmed.</p>

R. Johnston, Judge. Action by H. O. Du Bois against P. Fire-baugh. A motion for a new trial was denied, and defendant brings error.

Error from District Court, Jefferson County; Cham Jones, Judge.. Action by Edward Stewart against J. M. Dickinson, as receiver of the Chicago, Hock Island & Pacific Hallway Company, and another. Judgment for plaintiff, and defendants bring error.

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by Truman Barton against the Rainbow Oil & Gas Company, to recover compensation for labor performed. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Insurance — Life Insurance — Representations — Defense.</p> <p>Where a policy of life insurance provides that all statements made by the insured shall, in the absence of fraud, be construed as representations and not warranties, in order for representations made by the insured in an application to avail the insurer as a defense it must show, not only that the statements were not true, but that they were willfully false, fraudulent and misleading and made in bad faith.</p> <p>2. Same — Proof of Death — Effect.</p> <p>Proofs of death furnished an insurance company, while not conclusive evidence of the facts therein stated and subject to be explained or to proof that such statements are incorrect, furnish some evidence of the facts therein stated and are prima facie evl deuce in behalf of the insurer.</p> <p>3. Same — Age of Insured — Question for Jury.</p> <p>Where the proof of death furnished an insurance company shows the age of the deceased to be greater than stated in the application for the policy, such proof of death furnished some evidence as to the age of the insured, and the insurer is entitled to have the question submitted under proper instructions to the jury, who may give to such evidence the weight to which they think it entitled under the circumstances of the case.</p> <p>4. Trial — Direction of Verdict — Evidence.</p> <p>Even though the defendant offers no evidence in rebuttal, where defendant has denied plaintiff’s case and the evidence introduced on the part of the plaintiff is of such a nature that men of ordinary intelligence might draw different conclusions therefrom, it is error for the court to instruct a verdict for the plaintiff.</p> <p>(Syllabus by Rummons, O.)</p>

Error from District Court, Pushmataha County; Summers Hardy, Judge. Suit by C. B. Allen against N. C. Faulkner and another to quiet title. Decree for complainant, and defendants bring error.

Error from District Court, Tulsa County; Conn Linn, Judge. Suit by Estelle Franklin against Cora B. Ward and others. From a judgment for defendants on the pleadings, plaintiff brings error.

Error from District Oourt,. Muskogee County; R. P. De Graffenried, Judge. Action in justice’s court by A. T. In'gram against S. C. Cavender. Prom the district court’s dismissal of a bill of exceptions and petition in error on his attempted appeal from a judgment of the justice court against him, defendant brings error.

Error from District Court, Dewey County; T. P. Clay, Judge. Action of forcible detainer by J. B. Gray against W. A. Whitla. Judgment of the district court on appeal from the judgment of a justice court, for defendant, and plaintiff brings error.

<p>Error from County Court, Mayes County; T. L. Marteney, Judge.</p> <p>Action by Lillie P. King and others to the probate side of the county court to set aside a final order approving the report of Jesse King, guardian qf Lillie P. King, and discharging the guardian, opposed by the Southwestern Surety Insurance Company. Demurrer to petition overruled, and defendant brings error.</p>

<p>Trover and Conversion — Right of Action — Demand.</p> <p>In an action for damages for wrongful conversion, demand is not a necessary prerequisite to the commencement of the action, where the act of conversion has been consummated and demand would be a useless act.</p> <p>(Syllabus by Pryor, C.)</p>

<p>1. Bills and Notes — Special Warranty by Payer — Sufficiency5 of' Petition.</p> <p>A petition which sets forth a special warranty made by the payee of a promissory note at the time of transferring the same, but does not allege a breach or failure of such warranty, does not state a cause of action against the payee.</p> <p>2. Same — Liability of Payee — Sufficiency of Petition.</p> <p>An allegation in the petition of plaintiff, in a suit on promissory notes against the maker thereof, in which it is sought also to enforce liability against the payee who transferred such notes, that at the time of the sale and transfer the payee represented to the plaintiff that there was absolutely nothing wrong with the notes, and that there were no defects and infirmities about them, or any equities existing between the payee and the maker, does not state grounds for action against the payee, unless there is a further allegation setting out defects, infirmities, or equities so existing.</p> <p>3. Evidence — Transfer of Notes — Action Against Páyete.</p> <p>In case a note has been indorsed by the payee for the purpose of being used as collateral and afterwards, on the payment of the principal debt, the note is returned to the payee and he sells and transfers the same to another, who afterwards brings suit thereon against the maker and the payee, it is competent to show the facts as to such indorsement, and that, as a part of the contract made and executed at the time of the sale and transfer, the liability of the payee as indorser was, by executed oral contract, limited so as to extend only as to a warranty against equities between the maker of the note and the payee.</p> <p>4. Bills and Notes — Waiver of Presentment and Notice of Protest — Notice of Dishonor — Pleading and Proof.</p> <p>A provision in a promissory note waiving presentment for payment, notice of payment, protest and notice of protest is sufficient to relieve the holder of the note, who brings action against an indorser thereon from pleading and proving notice of dishonor.</p> <p>5.Appeal and Error — Assignment of Error —Review.</p> <p>In the trial court judgment was rendered against the defendant who, as shown by the files in the office of the court clerk, duly filed motion for new trial within three days from the rendition of the judgment. After-wards the plaintiff filed motion to strike the motion for new trial for the alleged reason that the files did not speak the truth, and that the motion for new trial was not filed within the time required by law, which motion to strike the trial court overruled. The motion for new trial was also overruled, and defendant appeals, but the plaintiff does not assign any error. Held that, in the absence of error duly assigned by the plaintiff, the action of the trial court in overruling the motion to.strike cannot be considered by this court.</p> <p>(Syllabus by Stewart, C.)</p>

<p>1. Pleading — Burden of Proof — Execution of Written Instrument — Verified Denial.</p> <p>When a recovery is sought upon a written obligation and the execution of the instrument is put in issue by a verified denial, the burden of proving the execution of the instrument is on the plaintiff, and, in the absence of any proof of the execution of the instrument sued on. a demurrer should bi sustained to the evidence of plaintiff.</p> <p>2. Attachment — Parol Evidence — Value of Property Attached — Return</p> <p>An officer’s return is prima facie evidence of the value of the property attached in the absence of any other proof, but is not exclusive upon either the officer or the parties to the action, and their privies, and is subject to be overcome by parol evidence of a different valúe.</p> <p>3. Sheriffs and Constables — Appointment of Deputy — Evidence—Records of County Clerk.</p> <p>The record of the county clerk showing the approval of a deputy sheriff is some evidence of the appointment, and is sufficient to make the question an issue of fact to be determined by the court or a jury.</p> <p>(Syllabus by Davis, O.)</p>

Error from District Court, Latimer County; W. H. Brown, Judge. Action by T. P. Mobley against the St. Louis & San Francisco Railroad Company, and James W. Lusk and others, its receivers. Defendants’ motion to quash and set aside the service of summons overruled and judgment rendered for plaintiff, and defendants bring error.

<p>1. Insurance — Policy — .Enforcement of Provisions.</p> <p>In a policy of file insurance issued since the law of this state providing a certain form of policy and that no fire insurance company shall issue fire insurance policies on property in this state other than those of standard form became effective, a provision in the' policy of fire insurance on property in this state not found in such standard form of policy will not be enforced unless such provision is within the exception named in section 3481, Revised Laws 1910.</p> <p>2. Same — Accordance with Standard Form.</p> <p>A provision in a policy of fire insurance, issued since the enactment of the law providing a standard form of policy in this state, that, “in case the assured fails to pay the premium notes or order at the time specified, then this policy shall cease to be in force and remain null and void during the time said note or order or any part thereof remanís unpaid after its maturity,” not being in accord with the standard form of policy provided by the la.w of this state, will not be enforced.</p> <p>3. Insurance — Action on Policy — Default in Payment of Premium Note.</p> <p>Where the insurer retains the note given for the premium of a policy of fire insurance and continues to endeavor to collect such note, the insurer is estopped from setting up the failure to pay said note as a defense to an action upon said policy.</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from County Court, Harmon County ; E. C. Abernathy, Judge.</p> <p>Replevin by the J. I. Case Threshing Machine Company against H. C. Snodgrass. Judgment for plaintiff:, and defendant brings error.</p>

<p>1. Eminent Domain — Proceedings — Notice.</p> <p>Any attempt on the part of a board of county commissioners to appropriate lands privately owned for public purposes, without due notice to the landowners or in violation of constitutional requirements, is void even though under the color of statutory authority.</p> <p>2. Same — Procedure—Statutes.</p> <p>It is within the province of the Legisla.-ture to prescribe procedure to be followed by boards of county commissioners in locating and establishing public roads, but land privately owned cannot be appropriated and a public road constructed across the same without the consent of the owner until the requirements set forth in section 24, art. 2. of the Constitution, as to condemnation and compensation are met.</p> <p>3. Same — Compensation—Payment.</p> <p>In the absence of an agreement with the owner, the construction of a public road across land privately owned can only be commenced after condemnation proceedings duly instituted and maintained, in which the damages are assessed by not less than three disinterested freeholders duly appointed by a court of competent juridietion or the judge of such a court from the regular jury list for the county in which the land is situated and the compensation allowed is paid to the owner or deposited into court for his use with the right of trial by jury afterwards to any party aggrieved as to the amount of damages.</p> <p>4. Same — Proceedings — Conditions Precedent.</p> <p>When the board of county commissioners</p> <p>brings condemnation proceedings in order to use land privately owned for the purpose of a public road, it is necessary for the board to show that the' road has been duly located in accordance with the law across such land and that the proceedings are necessary because of failure to agree with the owner of the land.</p> <p>5. Same — Consent of Owner — Presumption.</p> <p>In this state when private property is sought to be taken for public use without the consent of the owner under statutory or constitutional authority all presumptions indulged are in favor of the person whose property is sought to be taken without his consent.</p> <p>6. Same — Procleedings — Jurisdiction of Board of County Commissioners — Appeal — Effect.</p> <p>When an appeal is duly perfected to the district court from an action of the board of county commissioners in locating and establishing a public road, the jurisdiction of the board to proceed further ceases until the matters involved in the appeal are finally "determined.</p> <p>7. Same — iR|emedy of Owner — Injunction.</p> <p>When the road supervisor or overseer, pursuant to an unauthorized order of the board of county commissioners, appropriates land privately owned and proceeds to construct a public road across the same without the consent of the owner, injunction is a proper demedy.</p> <p>(Syllabus by Stewart, C.)</p>

Error from District Court, Garfield County ; J. C. Robberts, Judge. xVetion by J. J. Rawlins and others against tbe Warner-Quinlan Asphalt Company and others. Judgment for defendants; and plaintiffs bring error.

<p>Error from District Court, Adair County; John H. Pitchford, Judge.</p> <p>Action by A. J. Langley against John Weaver and others. Judgment for the defendants, and plaintiff brings error.</p>

<p>Error ifom District Court, Caddo Counity; Cham Jones, Judge.</p> <p>Suit by the Mangold & Glandt Bank against W. T. 'Utterback. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from District Court, Garvin County; F. B. Swank, Judge.</p> <p>Action by the First Trust & Savings Bank of Chicago, Ill., against Eliza Bloodworth and others. Judgment for defendants, and plaintiff brings error.</p>

Error f-rom District Court, Mayes County; Chas. G. Watts, Judge. In the matter of the guardianship of Chrystal Iva Bates, minor. From an order of the court disapproving certain items of credits claimed in his final report as guardian of Chrystal Iva Bates, a minor, W. L. Bates brings error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by the State, on the relation of James I). Lankford State Bank Commissioner, against T. J. Collins and Emma R. Collins ; the Modern Woodmen of America as garnishee. From an order dissolving the garnishment, the State brings error.