Volume 71 — Oklahoma Reports

<p>Error from District Court, Grant County; W. M. Bowles, Judge.</p> <p>Action by the First State Bank of Lamont against W. L. Ware and others. Judgment for defendants, and plaintiff brings error.</p>

Appeal dismissed for failure to file briefs. Error from County Court, Stephens County ; J. W.‘ Marshall, Judge. Action between Julia F. Cantwell and others and Alfred Patterson and another. From the judgment, Cantwell and others bring error.

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to File Brief— Affirmance.</p> <p>Where plaintiff in error fails to serve and file brief as prescribed by rule 7 of this court (47 Oída, vi, 165 Pac. vii), no excuse being offered therefor, the judgment of the! ■trial court should be affirmed.</p>

<p>Error from District Court, Jefferson County ; Cham Jones, Judge.</p> <p>' Action by W. C. Langford and another against C. J. Longest. Judgment for plaintiffs upon a directed verdict, motion for new trial overruled, and defendant brings error.</p>

Error from District Court, Seminole County ; Tom D. McKeown, Judge. Action to foreclose a chattel mortgage by the National Bank of Commerce against J. 5. McDaniel, in which B. G. Hoff sought to enforce a lien. Judgment for Hoff and plaintiff brings error.

Error ftom District Court, Wagoner Cowlty; It. P. De Graffenried, ~ndge. Action between Blanche I. Teiry, nee Wil-hams, and Jasper N. Moore and others. From the judgment, Terry brings error.

Error from District Oourt, Muskogee Oo~mty; Ohas. G~ Watts, rudge. In the matter of Stella Mason nee Manuel. P. M. Ford was appointed guardian on the application of Isaac Mason, and Stella Mason brings error.

Error from District Court, Texas County; T. P. Clay, Judge. Action by Lula May Granbery, adminis-tratrix of estate of Watt O. Granbery, against J. M. Dickinson, receiver of the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.

Error from District Court, Pottawatomie County; Charles B. Wilson, Jr., Judge. Action by R. W. Cook, administrator of the estate of Enos Nichols, deceased, against R. L. Alexander, County Treasurer, and another. Demurrer to the petition sustained, and plaintiff brings error.

<p>(Syllabus.)</p> <p>1. Judgment — “Res Judicata.”</p> <p>In order to constitute a good plea for res judicata, the following elements should be apparent: First, the parties or their privies must be the same; second, the subject-matter of the action must he the same; third, the issues must be the same, and must relate to the same subject-matter; fourth, the capacities of the persons must -be the saime in reference to the subject-matter and to the issues between them — and where these elements are clearly apparent the plea should be granted.</p> <p>2. Schools and School Districts — Consolidation — Validity — Procedure— “Public Proceeding.”</p> <p>A suit brought against a consolidated school district in the name of one of several school districts comprising the territory out of which said consolidated school district was formed, for the purpose of testing the validity of the organization of said consolidated school district and the validity of an election at which bonds were voted to erect a sehoolhouse in said consolidated district, is in the nature of a public proceeding, and the courts may deal with said action and control it accordingly.</p> <p>3.Judgment — Res Judicata —Identity of ¡Parties and Issues.</p> <p>When such a suit is instituted against a consolidated school district and its officers to enjoin the defendants from maintaining a school in said consolidated district, and from issuing its bonds for the purpose of raising revenue with which to build a sehoolhouse in said consolidated district, on the ground that said consolidated district was not legally organized and that the bond election was illegal, in which action a final judgment adverse to the plaintiffs is tendered and remains unappealed from, there is sufficient identity between the parties filing said suit and the plaintiffs in a subsequent suit brought in the name of the other school districts comprising the territory out of which the said consolidated district was formed, joined by several resident taxpayers of each of said respective districts-, against the same defendants, wherein the validity of the organization of said consolidated district and the legality of the bond election are involved, to justify the pleading of the judgment rendered in the first suit as res judicata as to all questions concerning the validity of the organization- of said consolidated district and the legality of said bond election that are identical in both cases and that were or could have been tried in the former.</p>

<p>(Syllabus.)</p> <p>’3. Pleading— Inconsistent Defenses — Election.</p> <p>Even if defenses are inconsistent, unless expressly prohibited by statute they may still be united in one answer, and the pleader cannot be compelled to elect between such defenses.</p> <p>2. Sales — Particular Description — Default of Seller.</p> <p>Where an article is sold according to a particular description, and the thing delivered is not according to the description, it is a nonperformance of the contract upon the part of the seller.</p> <p>3. Same — Tender— Necessity.</p> <p>Where a sale is made of a described article, the tender of an article answering the description is a condition precedent to the purchaser’s liability, and if the condition is not performed the purchaser has the right to reject the article delivered, provided he does so within a reasonable time.</p> <p>4. Sales — Rejection by Buyer — Reasonable Time.</p> <p>What is reasonable time is a mixed question of law and fact, and depends upon the facts of each particular case. Unless the time is unusually short or unusually long, the question should be submitted to the jury under proper instructions.</p> <p>5. Same.</p> <p>Under the facts, as disclosed by the record in this case, the question as to whether the article delivered was rejected within a reasonable time was properly submitted to the jury, and its verdict is found to be amply supported by the evidence.</p> <p>6. Contracts — Modification.</p> <p>A contract in writing may be altered by a contract in writing or by an executed oral agreement, but not otherwise-</p> <p>7. Appeal and Error — Harmless Error.</p> <p>Under section 6005, Rev. Laws 1910, the Supreme Court is not authorized to set aside any judgment or grant a new trial in any case 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, 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>8. Instructions.</p> <p>The record in this case examined, and held that the error, if any, in the instructions did not result in a miscarriage of justice.</p>

<p>Error from District Court, Woods County ; W. O. Crow, Judge. *</p> <p>Action by the Union National Bank against W. A. Mayfield and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; W. C. Crow, Judge. Action by the Southwestern Electric Company against the Skirvin Operating Company and others. Judgment for plaintiff, and the named defendant brings error.

Error from. District Court, Grady County; Will Linn, Judge. Suit by Allen K. Swan, trustee in bankruptcy of William D. Bailey, bankrupt, against Clementine Bailey. Judgment for defendant, from which plaintiff prosecutes error.

<p>Petition by the Prairie Oil & Gas Company against the District Court of Grady County and others for a writ of prohibition.</p>

<p>(Syllabus.)</p> <p>1. Master and Servant — Injury to Servant —Petition—Sufficiency.</p> <p>Petition examined and construed to allege that the acts c f negligence set out and relied upon at the -trial were the proximate cause of the accident from which plaintiff received his injuries.</p> <p>2. Same — Evidencia—Sufficiency.</p> <p>Evidence examined, and held to reasonably support the verdict of the jury.</p> <p>3. Same — Burden of Proof.</p> <p>In an action by a servant fcr damages resulting from the negligence of the master, the plaintiff is required to establish negligence on the part of the defendant, and is further required to show that such negligence was the proximate cause of the injuries complained of-</p> <p>4. Negligence — Evidence—Similar Facts.</p> <p>Negligence may be established by direct evidence when this character of proof is obtainable, and it may also be established by proof of other facts and circumstances and the causal connection between the negligence alleged and the injuries received may be shown by proof of such facts as logically create the inference that -the negligence proved contributed to the injury.</p> <p>5. Master and Servant — Injury to Employe —Liability of Railroad.</p> <p>It is the duty of a railroad company to make and keep its roadbed and tracks in a reasonably safe condition, and if it permits same to become and remain out of repair, and as a result thereof an accident is caused, resulting in injury to an employe, the’company will be liable.</p> <p>6. Damages — Personal Injuries — -Excessive Verdict-</p> <p>Plaintiff was 25 years of age, was serving as fireman, and was earning $3.45 per day. The power of sight in his left eye was destroyed; that in his right eye diminished one-third. He was injured in his right groin. He suffered constantly, and was nervous and miserable all the time. His lower limbs were affected; he could not walk right; and his injuries were permanent. His expectancy, according to the American Mortality Table was 38.81 years- There is nothing in the record to indicate that the jury were influenced by passi-on or prejudice. Held, (hat a verdict for $18,750 was not excessive.</p> <p>7. Witnesses — Repetition of Questions.</p> <p>Where a question has been asked and answered without objection, it is net error to sustain an objection to practically the same question.</p> <p>8. Masijer and Servant — Injuries to Employe — Knowledge of Danger.</p> <p>General orders issued by a train dispatcher to the crew of a train that was derailed, calling attention to the condition of the track and road of a railroad company, and directing the rate of speed to be maintained over certain portions of the track, are admissible for the purpose of showing notice to and knowledge upon the part of defendant as to the condition -of the track and roadbed at the time and place of the accident</p> <p>fl. Appeal and Error — Master and Servant —Duty to Inspect Appliances — Contributory Negligence — Assumption ef Risk— Instructions.</p> <p>Instructions examined, and held to contain no prejudicial error.</p>

<p>(Syllabus.)</p> <p>1. Indians — Cancellation of Lease — Consideration — Fraud.</p> <p>Where lessees paid $15 for a 99-year lease on certain lands of the value of $2,000, which lease was shown to be of the reasonable value of $1,500 or $2,000, and where lessors were Greek Judian citizens who had no experience in the buying or selling of lands and who knew nothing as to the market or rental value of lands, held, that the consideration was so grossly inadequate as to furnish, in connection with the other facts and circumstances, satisfactory and convincing evidence of fraud in the procurement of the lease and to justify the cancellation thereof.</p> <p>2. Limitation of Actions — Recovery of Land.</p> <p>Where lessee claimed possession of certain lands under a 99-year lease bearing date of January 23, 1902, executed in the Indian Territory, and where defendant had been in the open, notorious, and adverse possession of said premises from and after the 18th day of March, 1907, and where lessees commenced an action to recover possession of said lands on November 16, 1915, held, that plaintiff's cause of action was barred by the statute of limitations.</p>

<p>(Syllabus.)</p> <p>1. Oil and Gas — Lease—Suit to Forfeit— Jurisdiction.</p> <p>A court of equity has jurisdiction to decree the forefeiture of an oil and gas lease on account of the breach of an implied covenant to diligently operate and develop the property, when such forfeiture will effectuate justice, and the lessor is not limited to an action for damags because of such breach, where the measure thereof is uncertain, vague, and indefinite.</p> <p>2. Same — Lease—Cancellation.</p> <p>The same relief will be applied in equity for the cancellation of an oil and gas lease on land in a gas field, where the initial well drilled on the plaintiff’s premises produced gas only and the payment for the gas was the stipulated sum of $50 per annum for each well.</p> <p>3. Pleading — Demurrer—Pleading Good in Part.</p> <p>Where a general demurrer is filed to a petition as a whole, if any paragraph of the pleading is good, and states a cause of action, the demurrer should be overruled.</p> <p>4. Appeal! and Error — Review—Sufficiency of Evidence.</p> <p>In an action to cancel an oil and gas lease for failure to diligently operate and develop the property, the trial court found that the leased premises were not being sufficiently operated and developed. The judgment will not be disturbed by the Supreme Court on the ground of the insufficiency of the evidence, since it is not clearly against the weight of the evidence.</p> <p>5. Appeal and Error — Review.</p> <p>. The judgment in favor of the plaintiff in an action to cancel an oil and gas lease for failure to opérate and develop was, in effect, that 'tbe defendant would be required to drill two additional wells or pay $50 per annum each in lieu of the drilling of said wells, and that if neither of these things were done that the lease be canceled. Is its answer filed in the cause, and in the opening statement of its counsel, defendant offered to abide by the decision of the court as to tbe amount of development (hat should be made on -the lease. Held, that the judgment rendered, if erroneous, was in the defendant’s favor, that it invited (he same and was not prejudiced thereby.</p> <p>Miley, J., dissenting.</p>

<p>Error from District Court, Major County; James B. Cullison, Judge!.</p> <p>Action by E, C. Voris against Howard Hall and others. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error —■ Appellate Jurisdiction — Parties—Statute.</p> <p>Under th^ act approved March 23, 1917, Sess. Laws 1917, p. 403, e. 219, it is not necessary, in order to vest the Supreme Court with jurisdiction to hear and determine the cause on appeal, that a joint judgment debt- or, who did not appear at the trial and take part in the proceedings from which an appeal is taken, be served with the case-made or summons in ejrror, or be made a party to an appeal, or proceedings in error in this court, where the appealing judgment debtor gave notice in open court at the time judgment was rendered against him of his intention to appeal therefrom to the Supreme Court.</p> <p>2. Appeal and Error — Right of Appeal — Waiver.</p> <p>Any act on the part of a defendant by which he impliedly recognizes the validity of a judgment against him operates as a waiver to appeal therefrom, or to bring error to reverse it.</p>

Error from Superior Court, Pottawatomie County; George O. Abernathy, Judge. Action by the Liverpool & London & Globe insurance Company, Limited, against Richard F. Biggers and others. Judgment for defendants, and plaintiff brings error.

<p>Kane, Miley, and Rainey. JJ., dissenting.</p> <p>Error from District Court, Creek County; Wadej S. Stanfield, Judge.</p> <p>Action by Charles Whitaker against Joseph Bruner and’ H. 0. Miller. Judgment against Bruner and in favor of Miller, and Whitaker brings error.</p>

<p>Error from County Court, Carter County; Thos. W. Champion, Judge.</p> <p>Action by R. H. Chowning against W. P.-Harwell. Judgment for plaintiff before a justice was affirmejd in the county court, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Conversion — What Constitutes.</p> <p>“Conversion” is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein.</p> <p>2. Chattel Mortgages — Conversion ■— Va/-riance — Demurrer.</p> <p>In an aetion brought by a chattel mort-' gagee charging several defendants with having conspired to cheat and defraud the plaintiff by causing the mortgaged property, at the time in the mortgagor’s possession, to bej shipped and transported to market and there sold and delivered, without its consent and to its great detriment and damage, with knowledge of plaintiff’s rights in the premises, and by reason whereof plaintiff was prevented from taking possession of and exercising lawful dominion over it, whereby plaintiff was damaged in a sum equal to the value of the cattle, and an additional sum for expenses laid out and expended in searching for and attempting to recover the cattle alleged to have been wrongfully converted, and where the evidence wholly failejd to prove the conspiracy charged, and the only evidencei in support of the verdict against the] defendant bank (the verdict being in favor of the other defendants) was that such defendant had received on deposit from the mortgagor the proceeds of the sale) which had subsequently been checked out by the depositor, and a portion thereof subsequently paid the bank in settlement of the depositor’s indebtedness to it, being an aetion for the conversion of the cattle arising out of the conspiracy charged, and not a suit against the bank to impress a trust on the proceeds of the sale, was not supported by the evidence, and it was ejrror for the trial court to overrule a demurrer thereto.</p> <p>3. Aetion — Joinder of Causes of Action — Common Liability.</p> <p>In an aetion against several defendants charging a conspiracy to cheat and defraud the plaintiff whereby certain cattle upon which plaintiff held a mortgage were con-vertejd to the use of the alleged conspirators and on account of which it sought to recover a Joint Judgment against such defendants, during the trial and at the close of the plaintiff's evidence, the plantiff asked permission to amend its petition by adding thereto a paragraph charging one of the defendants with having obtained possession of the proceeds of the sale of the mortgaged property in such way as to constitute such proceeds a trust fund for which plaintiff asked Judgment against said defendant alone, at the same time insisting upon its original claim to Judgment against all the defendants remaining in the case. Held, that as the proposed amendment did not affect all the parties to the action as required „in section 4738, Rev. Laws, and as the two causes of action could not have been united in action, the court did not err in refusing leave to fil^ the amendment.</p> <p>4, Appeal and Error — Judgment—Reversal —Refusal of Trial Amendment.</p> <p>In a proceeding in error in the Supreme Court, the Judgment of the! trial court will not be reversed on account of the court’s action in refusing a trial amendment to the petition, where the only defendant affected by such tendered amendment is not made a party to the proceedings to review.</p>

<p>(Syllabus.)</p> <p>1. Indians — Allotted Lands — Descent—“Ancestral Estate.”</p> <p>Lands allotted to a full-blood Cherokee Indian, who thereafter and on September 8, 1904, died unmarrieid,- intestate, and without issue, will be treated as an ancestral estate within tbe meaning of section 2531, Mansfield’s Digest of tbe Laws of Arkansas at tbe timej in force in tbe Indian Territory by Congressional enactment.</p> <p>2. Indians — Allotment—Descent.</p> <p>In case both parents- are of Cherokee blood,- tbe estate! of a deceased son ascends equally to tbe father and tbe mother. If tbe mother’s death precedes that of tbe son, the moiety which ishe, if living, would have taken ascends to her heirs.</p> <p>3. Appeal and Error — Review — Questions Not Raised Below.</p> <p>Where a case is submitted Entirely upon an agreed statement of facts in which it is stipulated by the parties “that tbe sole question to be passed upon and decided by tbe court in this case is the question of descent,” and tbe court so confines its decision, tbe prevailing party will not be permitted in this court for tbe first timej to rai.se tbe issue of limitations, on tbe claim that upon that issue tbe trial court reached a correct conclusion.</p>

Error from District Court, Greer County; Thomas A. Edwards, Judge. Action between the City of Mangum and Jarrett Todd. Judgment for the latter, and the former brings error.

Error from District Court, Oklahoma County r John W. Hayson, Judge. Action by the Mutual Benefit Life Insurance Company of Newark.

<p>Error from District Court, Oklahoma County; John W. Hay son. Judge.</p> <p>Action by F. O. Hoehler and H. W. Cummings, partners as Hoehler & Cummings, against the City of Oklahoma City. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Action by1 O. W. Seay against J. M. Dickinson and H. U. Mudge, receivers of the Chicago, Bock Island & Pacific Bailway Com pany. Judgment for plaintiff, and defendant brings error.

Error from District Court, Carter County ; S. H. Russell, Judge. Action by O. Edgar Honnold against Bo'ard of County Commissioners of Carter County, Okla., and Wim. Kirkpatrick and others, members of such board. Judgment for defendants, and plaintiff brings error.

Error from District Court, Jefferson County; Prank M. Bailey, Judge. Action by William Cameron & Company, Incorporated, against Nettie Yarby and others, and Mary Johnson and others. Judgment for defendants, and plaintiff brings error.

Error fnom County Court, Alfalfa County; F. II. Gustin, Judge. Proceeding by Carl S. Dunnington, as Treasurer of Alfalfa County, against David T. Evans, to list for taxation property alleged to have been omitted from taxation. Objections by Evans sustained by county treasurer, and from judgment of the county court, dismissing the appeal of the county attorney anid others for want of jurisdiction, they ibring error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Supersedeas — Proceeding in Error.</p> <p>The general rule is that a proceeding in error commenced by the judgment debtor does not abate or discharge the judgment rendered against him, but merely suspends it until the appeal is disposed of.</p> <p>g. Same.</p> <p>In this jurisdiction a proceeding in error alone, without the execution of a super-sedeas bond, does not even suspend or stay the issuance of execution on the judgment appealed from.</p> <p>3. Same-r-Death of Plaintiff in Error — Liability of Sureties.</p> <p>Neither the death of the plaintiff in error ■pending appeal, nor failure to revive the proceeding in error in the Supreme Court, excuses performance by the sureties of a condition in a supersedeas bond, obligating the parties thereto to prosecute said appeal to effect without unnecessary delay, and to pay the amount of the judgment appealed from, if the said appeal be withdrawn or dismissed.</p>

Referendum petition No. 30, Sitaite Question No. 94, protested by W. T. Salmon. From a ruling of the Secretary of State, declaring the petition sufficient, the paqoitest-ant appeals.

Error from District Gourt, McClain County; E. B. Swank, Judge. Will contest by Gena Cook for herseif and for and as next friend of William Paul Cook against Mary Cook. Pnom a judgment of the district court affirming a judgment of the county count denying probate of will of William Nye Cook, deceased, contestee brings error.

<p>Error from County Court, Okmulgee County ; Mark L. Bozarth, Judge.</p> <p>Action by Amanda Cox against the Fireman’s Fund Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Okfuskee County; Geo. 0. Crump, Judge. Action for injunction by the First National Bank of Weleetka and others, against Jo Duling, County Treasurer of Okfuskee County. Judgment for plaintiffs, and defendant brings error.

<p>Appeal from District Court, Love County; W. F. Freeman, Judge.</p> <p>Action by Odessa Wright against the Conservative Loan Company. Judgment for defendant, and plaintiff appeals.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Proceeding by the State of Oklahoma, on the relation of A. J. Hardy, County Attorney of Carter County, against one automobile: Tom Cooper, claimant'. Judgment for relator, and claimant brings error.

<p>(Syllabus.)</p> <p>1. Officers — Action for Salary’ — Defense of Abandonment — Proof.</p> <p>Where, in defense of an action brought by plaintiff to recover salary alleged to be due him, it is urged that plaintiff had abandoned his position, proof of abandonment must be clear, unequivocal, and decisive.</p> <p>2. Schools and School Districts — Action for Salary — Directed Verdict — Evidence.</p> <p>Evidence examined, and held, that the court was right in instructing a verdict for plaintiff.</p>

<p>(Syllabus.)</p> <p>Sufficiency of Evidence — Judgment.</p> <p>Record examined, and held, 'that the evidence reasonably tends to support the judgment of the trial court.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Appointment of Guardian i — Appeal—Parties.</p> <p>Where F., an Indian woman, executed •and delivered an oil and gas lease upon certain lands owned by her, and afterwards F. was adjudged incompetent and a guardian appointed for her person and estate, held, that the lessee in such oil and gas lease cannot maintain an appeal from the order appointing a guardian.</p>

<p>(Syllabus.)</p> <p>1. Indians — Oil and Gas Lease — Approval —Validity—'“Conveyance of Interest in Land.”</p> <p>An oil and gas mining lease executed February 11, 1915, by a full-blood heir of a deceased Creek Indian allottee, is a “conveyance of an interest” in said lands, and is void unless approved as required by section 9, Act Cong. May 27. 1908, c. 199, 35 Stat. 315.</p> <p>2. Guardian and Ward — Oil and Gas Lease —Approval—Validity.</p> <p>An oil and gas mining lease of such land executed by a guardian of a minor full-blood heir of such deceased allottee, on March 2, 1912, for a period of years extending beyond the minority-of his ward, which lease was duly approved, is valid.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Proceeding to enforce mechanics’ liens by O.H. Powell and others against the Heald-ton-Wheeler Oil & Gas Company and the Republic Supply Company. From a decree lidding plaintjiff’s lien superior, the Republic Supply Company brings error.

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Action for injunction by Victor Pucini and •another against W. M. Bumgarner. Judgment for defendant on the pleadings and plaintiffs bring error.</p>

<p>(Syllabus.)</p> <p>Oil and Gas — Lease—Consideration—Cash Bonus — Validity.</p> <p>Where a cash bonus of $160 was paid for an oil and gas lease which provided that lessee should commence the drilling of a well within 12 months from the date thereof or pay a quarterly rental of $40, and further provided that the lessee might at any time upon the payment of a further sum of $2 and as accrued liabilities surrender '(the leased premises and terminate all future liabilities under the lease, held, that the cash bonus supports each and all the covenants in the lease; and held, further, that the presence of a surrender clause in said lease did not render the same void for want of mutuality nor confer on the lessor the right to terminate said lease at will.</p>

<p>(Syllabus.)</p> <p>1. Commerce — Rules of Decision— Federal Courts — Rights Under Interstate Ship- • ment.</p> <p>The rights and liabilities of the parties to an interstate railway shipment depend upon federal legislation, the contract or bill oí lading under which the shipment is made, and common-law rules as accepted and ap- , plied in federal tribunals.</p> <p>2. Courts — Decision of United States — Supreme Court — Rights of Parties to Interstate Shipment.</p> <p>In cases arising in the state courts involving the rights and liabilities of the parties to an interstate railway shipment, the decisions of the Supreme Court of the United States, construing and applying the federal act, are controlling upon the state courts.</p> <p>3. Carriers — Interstate Shipment of live Stock — Notice of Injury — Right of Action.</p> <p>Failure to comply with the stipulation in a live stock contract under which an interstate shipment is made, providing in effect that, as a condition precedent to the •shipper’s right to recover damages for any loss or injury to his stock during the transportation thereof, such shipper, or his agent in charge of the stock, would give notice in writin <>• ' f his claim therefor to some officer of the company or to the nearest sta- • tion agent “before such stock shall have been removed from the place of destination . * * * or from the place of delivery of the same to the consignee, and before such stock shall have been slaughtered or intermingled with other stock, and will not re- ■ move such stock from said station or stockyards until after the expiration of three liiours after the giving of such notice, and :a failure Do comply in every respect with the "terms of this clause shall be a complete bar to any recovery of any and all such damages. is, in the absence of special circumstances rendering such stipulation invalid or excusing noncompliance, binding upon the •parties thereto, and will be enforced in a court of law, when relied uplon as a defense in an action arising under such contract.</p> <p>4. Same — Burden of Proof.</p> <p>The giving of the written notice of claim being made a condition percedent to a recovery, the burden of proof rests upon the shipper to show that such notice was given within the time provided, when made an issue in the case.</p> <p>5. Same — Limitation of Time for Bringing Action — Validity.</p> <p>Under the Carmack amendment of June 29, 1906 (34 Stat. 595, c. 3591, U. S. Comp. St. Supp. 1911, p. 1307 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) §• 7, pars. 11 and 12, to Act Feb. 4, 1887 (24 Stat. 386, c. 104) § 20, which furnishes the exclusive rule on the subject of the liability of the carrier under contracts for interstate shipment, a stipulation in a contract for an interstate shipment of live stock, providing that no suit or action against the carrier shall be sustained in any court of law or equity “unless such suit or action shall be commenced within six months next after the loss or damage shall have occurred,” and that the failure to institute suit within said time shall be a complete bar to such suit, is a reasonable provision and binding upon the parties to such contract.</p>

<p>Error from District Court, Beckham County; G. A. Brown, Judge.</p> <p>Action by Lucy L. Johnson against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Action of escheat by the State against 'the Parwal Investment Company anid others. Judgment for the State, and defendants bring error

<p>(■Syllabus.)</p> <p>1. Death — Wrongful Death — Right of Action — Statutes—“Next of Kin.”</p> <p>Where] there has been no administration upon the estate of a deceased' single person, although an adult, and who is survived by his father and sister, the father is his “next of kin” under section 8418, Rev. Laws 1910, and may maintain an action for his wrongful death in his own name, where the deceased, prior ,to his death, lived with his father and had devoted his earnings to his support, and there] was a reasonable expectancy that he would continue to do so.</p> <p>On Rehearing.</p> <p>2. Mines and Minerals — Abandoned Mine— Negligence — Pleading.</p> <p>The petition examined, and found to state a causi^ of action when challenged by a general demurrer.</p> <p>3. Mines and Minerals — Temporary Suspen- . sion of Operations — Danger Signals — Construction of Statute.</p> <p>That part of section 3976, Rev.' Laws 1910, which provides that' in all mines where operations are temporarily or indefinitely suspended, the superintendent and mine foreman shall see that a danger signal be placed at the mine entrance] or entrances, which shall be a sufficient warning to persons not to enter the mine, was not intended to protect persons engaged ini mining only, but was intended to afford protection to the public generally.</p> <p>4. Negligence — Negligence Per Se — Nonperformance ofl Statutory Duty.</p> <p>It is well settled that the failure to perform a statutory duty, imposed by a valid statute under the police power of the state for the protection of the public, is negligence per se.</p>

<p>(Syllabus.)</p> <p>1. Conspiracy — Civil Liability — Proof—Circumstantial Evidence.</p> <p>It is not necessary, in an action on the case in the nature of a conspiracy, to prove by, direct Evidence that the parties actually came together and entered into a formal agreement to do the things complained of; but such an understanding may be shown by proof of facts and circumstances from which the existence of a conspiracy may be inferred, and in 'the admission of cii'eum* stantial evidence upon a charge of conspiracy great latitude is allowed. The limit to which evidence of this kind may be admitted rests in the sound discretion of the trial court.</p> <p>2. Conspiracy — Acts of Co-Conspirators — Lr ability.</p> <p>When a conspiracy is entered into to cheat and defraud any person of any property, all persons who engage therein are responsible for all that is don^ in pursuance thereof by any of their co-conspirators until the object for which the conspiracy was entered into is fully accomplished.</p> <p>3. Appeal and Error — Modification of Instruction — Prejudice.</p> <p>The modification by the court of a certain instruction re&uestejd by the defendants, and the giving of the instruction in its modified form, held not prejudicial error.</p>

<p>Error from District Court, McIntosh County; R. W. Higgins, Judge.</p> <p>Action for injunction by Ella Jones against C. S. Whitlow, as County Treasurer of McIntosh County. Prom a judgment for defendant, sustaining a demurrer to the pe-</p> <p>tition, plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>1. Adverse Possession — What Constitutes— “Possession” — ■“Actual Possession.”</p> <p>What constitutes “possession” of land is a mixed question of law and fact; “actual possession” consisting of thq exercise of acts of dominion over it, in making the ordinary use of it and taking the .ordinary profits it is capable of yielding in its present state.</p> <p>2. Equity — Nature of Jurisdiction.</p> <p>Equity will not permit a mere form to conceal th^ real position and substantial rights of parties. It always attempts to get at the substance of things, and to ascertain, uphold, and enforce rights and duties which spring from the real relations of parties. It will nevejr suffer the mere appearance and external form to conceal .the true purpose, objects, and consequences of a transaction.</p> <p>3. Mines and Minerals — Injunction — Possession of Land — Waste.</p> <p>While courts of equity will generally refuse to interfere with possession of land before the right is determined at law, yet, If defendant’s possession is not exclusive, and is but an interruption of the prior, open, notorious, and peaceable possession of complainant, an injunction may be allowed, especially in cases where thq entry by the defendant was for the purpose of committing waste such as the taking out of minerals.</p>

<p>('Syllabus.)</p> <p>1. Signatures —1 Signature by Mark — Construction of Statute.</p> <p>Under section 2945 and section 5541, Rev. Laws 1910, in order for one who cannot write to execute a written instrument by mark, the person who wri.es the name of the maker must also write his own name on the instrument near such signature as a witness thereto except in case of an affidavit or deposition, or a paper executed before a judicial officer; and where the name) of the maker is written by one person, and different persons write their names as witnesses, such does not constitute a “signature,” within (the meaning of (he statute.</p> <p>2. Same — Proof of Signature.</p> <p>The statute being mandatory, where the terms have not been complied with, it is not competent to prove that the maker in fact executed the instrument, when the execution thereof is properly put in issue.</p>

Action by Ada T. Cushing, executrix of the estate’ of Francis J. Cushing, deceased, against Sillin McWaters, neje Secor, and others, for foreclosure of mortgage. Judgment for defendants, and plaintiff brings error.

Error from District Court. Okfuskee County; John Carutk.ers, Judge. Action toy Annie Hutchinson against the Ft. Smith & Western Railway Company. Judgment for plaintiff, motion for new trial overruled on condition that plaintiff remit one-half of the verdict, which was done, and defendant brings error.

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action by C. S. McDaniejl and C. E. McDaniel against the Southwestern Oil Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Caddo County; Thomas A. Edwards, Assigned Judge. Action' by Guy G. Robertson, trustee in bankruptcy of Lewis Plante, bankrupt, against Cecelia Plante, with cross-petition by defendant. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>Oil and Gas Lease — Forfeiture—Waiver.</p> <p>Reversed and remanded on authority of No. 9362, Southwestern Oil Co., a Corporation, v. McDaniel et al., 71 Okla. 142, 175 Pac. 920.</p>

<p>(Syllabus.)</p> <p>1. Process —■ Summons — Return — Statutes.</p> <p>Where a summons, directed to the officer of a county other than the one in which the action was commenced, was made returnable in less than 10 days from the date it was issued, and the same was duly served and returned within said time, it was irregular; but where such summons gave the defendant the full statutory time within which to plead said defendant was not deprived of any statutory right nor prejudiced in any way, anfl the court did not err in refusing to quash said summons.</p> <p>2. Limitation of Actions — Amendment — New Cause of Action.</p> <p>Where plaintiff, by amendment, sets up no new matter or claim, but merely restates in a different form, more correctly and specifically, the same cause of action set out in the original declaration, it is not a new suit, and the statute of limitation will not avail for a period between the original and amended pleading. Where the original declaration states a cause of action, but does it imper: fectly, and afterwards an amended declaration is filed correcting thd (defect, the plea of the statute of limitations will relate to the time of filing the original declaration.</p> <p>8. Amendment to Pleading — Statute.</p> <p>Section 4790, Rev. Laws of 1910. expressly authorize^ trial courts to permit parties to amend their pleadings by “inserting other allegations material to the case.”</p> <p>4. Insurance, — Fire Insurance — Proof of Loss — Diemurrer to Evidence.</p> <p>Wher^ the plaintiff, in a suit for damages on a fire insurance policy, alleges the making of a proper proof of loss, and where the evidence discloses that a proof of loss was furnished the company, accepted and retained by it, and no complaint made of any defects or notice given the insured, and the proof of loss is offered in evidence without objection on the part of the company, held., that a demurrer to the evidence on the ground that the proof of loss was defective was properly overruled.</p> <p>5.. Appeal and Error — Reversal—Violation of1 Statutory or Constitutional Right.</p> <p>Unde'r section 6005, Rev. Laws of 1910, the Supreme Court is not authorized to set aside any judgment or grant a new trial in any case 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, after an examination of the entire record, it appears that jhe error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.</p> <p>6. Trial — Instruction — Assumption) as to Facts.</p> <p>A certain instruction given by the court and excepted to by counsel examined, and held to be free of prejudicial error as applied to the facts of this case.</p>

Action between Charle^ Olentine and D. A. Anderson, Jr. Judgment for the latter, motion for new trial overruled, and the former brings error.

<p>Sharp, O. J. dissenting.</p> <p>Error from District Court, Johnston County ; J. H. Line'baugh, Judge.</p> <p>Action by W. H. Phelps, administrator of the estate of Needham Phelps, deceased, against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgment for plaintiff, motion for new trjial overruled, and defendants bring error.</p>

Error from District Court, .Tulsa County. Action on notes and to foreclose a mortgage by Samuel 31. Kcnnard and others, trustees- of Barn'es Hospital, against! Charles F. Reeder and Jessica Reeder, in which parties claiming an interest in mortgaged property were made defendants. Joint judgment for 'plaintiffs, and the named defendants bring’ error.

<p>(Syllabus.)</p> <p>1. Principal and Agent — Revocation.</p> <p>The relation of principal and agent is created by contract, and the mere appointment of a receiver for .the principal does not ipso facto revoke the agency.</p> <p>2. Railroads — Receivers — Service on Station Agent.</p> <p>Record examined, and held that, under the order of the federal court appointing a receiver, the interests of the receiver and of the railway company are not so adverse as to preclude the same person from acting as the station agent of the company for the purpose of serving summons upon it, pursuant to 'the laws of .the state, while so acting for the receiver in aniother sense.</p> <p>3. Master and Servant — Assumption of Risk — Obvious Danger.</p> <p>The rule is well settled that the servant assumes risks of his employment caused by the master’s negligence which are obvious or fully known and appreciated by him, but whether such negligence and risk are so patent and obvious that an ordinarily prudent person would see the one and appreciate the lOltlrer are generally questions of fact to be submitted to the jury under proper instructions.</p> <p>4. Same — Instructions.</p> <p>Record examined, and held that the trial court did not err in submitting these Questions to the jury under proper instructions.</p>

<p>KAN®, X, dissenting.</p> <p>Appeal from State Industrial Commission.</p> <p>Proceeding by Timothy A. Downing for compensation under the Workmen’s Compensation' Act, opposed by the Lahoma Oil Company, the Maryland Casualty Company, and others. Prom an award made by the State Industrial Commission, the Lahoma Oil Company and the Maryland Casualty Company .appeal. On the death of said Downing, the action was revived in the name of Malinda Downing, administratrix. On motion to dismiss action.</p>

Error from District Court, Garter County ; W. F. Freeman, Judge. Proceeding by George R. Broadwell against the Board of County Commissioners of Carter County. Petition denied by board of county commissioners, and, on appeal to district court, defendant’s demurrer thereto was sustained and plaintiff brings error.

Error from District Court, Pontotoc County; J. W. Bolen. Judge. Suit by George W. Edwards against the Atchison, Topeka & Santa Fe Railway Company. There was judgment for plaintiff in justice court, and on appeal there was judgment in the district court in his favor, and defendant brings error.

<p>Error from County Court, Rogers County; Edward Jordan, Judge.</p> <p>Action by R. T. Bentley against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Garvin County; ,T. D. Mitchell, Judge.</p> <p>Action between B. H. Williams and W. C. Kelly. Judgment for the latter, motion for new trial overruled, and the former brings error by transcript.</p>

Proceeding by the State of Oklahoma and others against the Atchison, Topeka & Santa Ee Railway Company and the Gulf, Colorado & Santa Ee Railway Company. Erom an order of th^ Corporation Commission, requiring them to operate a Pullman car between certain stations on certain trains to determine whether the revenue therefrom would be remunerative, the respondents appeal.

<p>Error from District Court, Canadian Coun. ty; Edward Dewes Oldfield, Judge.</p> <p>Action by Etta Bell Gunn against W. B. Fryb^rger. General demurrer to petition sustained, aniel plaintiff brings error.</p>

Error from District Court, Carter County; Stilwell H. Russell, Judge. Action for injunction by, Roy M. Johnson and others against W. R. Ingram and others. Judgment for plaintiffs, and defendants bring .error.

<p>Error from District Oourt, Sequoyah County; John H. Pitehford, Judge.</p> <p>Action by the Farmers’ National Bank against John E. Johnston. Judgment for defendant, and plaintiff brings error.</p>

Error from District- -Court, Okmulgee County; Ernest B. Hughes, Ju¡dgd. Suit by Clark F. Bryan, doing business under the firm name and style of the Okmulgee Credit & Collection Service, against the Ok-mulgee; County Business Men’s Association and Dave U. Franke and others, as officers, directors, and members of such association. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Tillman County; John W. Hayson, Assigned Judge.</p> <p>Suit to quiet title by J. H. Myers against J. L. Lair. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court. Ottawa County ; Preston S. Davis, Judge. From an order of the district court affirming thei judgment of the county court of Ottawa county declaring Joseph P. Fish an incompetent, and appointing Ira C. Deaver guardian of his person and estate, Joseph P. Fish brings error.

<p>(Syllabus.)</p> <p>Courts — Original Action in Supreme Court —Failure to File Briefs — Dismissal.</p> <p>Where the relators in an original action in this court fail to file briefs in compliance! with' the rules governing same, the cause will be dismissed.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Ineffectual Determinar tion — Dismissal.</p> <p>Where it appears, in an action between two claimants to th^' office of town treasurer over the custody of the funds, records, and paraphernalia of the office, that pending the appeal the plaintiff in error has tendered his resignation as treasurer to, and the same has been accepted by, the board of trustees of said town, the appeal may be dismissed.</p>

<p>Error from District Court, Wagoner County; Preston S. Davis, Assigned Judge.</p> <p>Action by Amanda E. Pejndergrass against Albert Kenworthy and another. Judgment for plaintiff against defendant Kenworthy, and he brings error.</p>

Error from District Court, Grady County; Frank M. Bailey, Judge. Action by George Pugh against James W. Lusk and othejrs, receivers of the St. Louis & San Francisco Railroad Company. There u as a judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Craig County; Preston S. Davis, Judge.</p>

Kane and Rainey, JJ., dissenting. Error from District Court, Pottawatomie! County; Charles B. Wilson, Jr., Judge! Actions by the Liverpool & London & Globe Insurance Company, Limited, against Walter H. Parker and others, and against Richard Biggers and others. Judgments for definid-ants, and plaintiff brings enroje.

Error from District Court, Okmulgee County ; Ernest B. Hughes, JudgeJ. Action to quiet title by the Bank of Commerce of Okmulgee against Alex H. Mike and others, with cross-petition by defendant Mik4 Cross-petition denied and judgment renlrlered for plaintiff, and defendant Mike brings error.

<p>(Syllabus.)</p> <p>Appeal and) Error — Grant of New Trial — Confession by Defendant in Error.</p> <p>Where plaintiff: in error has completed his record and filed it in the Supreme Court and has served and filed his brief in compliance with the rul^s of this court, and the defendant in error has not filed a brief in answer thereto or in support of the judgment of the trial court, but on the contrary filed in the trial court his written confession of the plaintiff in .error’s motion for a new trial, and where the brief filed by the plaintiff in error appears reasonably to sustain the assignments of error, the court may reverse the judgment and order a new trial.</p>

<p>Error from County Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by tbe W. T. Bawleigh Medical Company against Clarence W. Hunt and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from Superior Court, Muskogee County; H. C. Thurman, Judge.</p> <p>Action by. Will D. Shoenfelt against Charles A. Bagg and the Kroh Music Company. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Sales — Delivery l— Bills oifl Saje.</p> <p>Where personal property is, from its character or situation, incapable of actual delivery, the delivery of the bill of sale or other evidence of title is sufficient to transfer the property and possession to the vendee.</p> <p>2. Trusts — Delivery—Bills of Sale,</p> <p>Where W. purchased growing timber with the funds and for the use and benefit of his employer, but took the bills of sale in his own name, a delivery of these bills of sale to his employer in execution of the trust, without formal assignment, transferred the property and the possession to the employer for whom it was purchased.</p> <p>3. Trusts — Establishment — Issues and Proof.</p> <p>Where W. prosecuted an action on cross-petition alleging ownership of personal property in' himself, praying equitable relief for his individual use and benefit, and it appeared the bill of sale under which he claimed title, although in his own name, was taken by him as agent and for the use and benefit of his principal, and this bill of sale and the constructive possession of the property delivered to his principal in execution of his trust, there was a failure of proof to sustain the; cause of action alleged.</p>

<p>(Syllabus.)</p> <p>1. Sales — Bill of Sale — Transfer of Title.</p> <p>Where personal property is from its character or situation, incapable of actual delivery, the delivery of the bill of sale, or other evidence of title, is sufficient to transfer the property and possession to the vendee.</p> <p>2. Trusts — Bill of Sale — Transfer of Title.</p> <p>Where W. purchased growing timber with the funds and for the use and benefit of his employer, but took the bills of sale in his own name, a delivery of these bills of sale to his employer in execution of the trust, without formal assignment, transferred the property and possession to the employer for whom it was purchased.</p> <p>3. Escrows — Delivery . — Intermediate Rights.</p> <p>A deed, or contract, conveying title to property, delivered in escrow, does not relate back to the time of its execution and depositing as against purchasers of the property without notice. . Intermediate rights are valid against the second delivery.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Suit in equity by J. W. Bechtel and another against the Southwestern Oil Company. Judgment for plaintiffs, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Oil and Gas — Lease—Consideration—Ter. urination — Mutuality — Surrender — “Tenancy at Will.”</p> <p>Tbe owners of a tract of '60 acres of land executed an instrument, denominated an oil and gas lease, by tbe terms of which they granted, demised, leased, and let the same to another, his heirs, executors, administrators, and assigns, for the sole and only purpose of mining and operating for oil and gas, and of laying pipe lines, and of building tanks, power stations, and structures thereon, to procure and take care of said products. The grant was for a term of five years from date and as long thereafter as oil or gas, or either of them, was produced by said party. The instrument recited a consideration of $1 paid by the lessee to the lessors. The lessee agreed to deliver to lessors one-eighth of the oil produced and saved from the premises; to pay certain stipulated sum per annum for each gas well, and for gas utilized from each oil well. The lessee further agreed to complete a well on said premises within six months, or pay at the rate of $15 for each additional month such completion was delayed. The instrument contained the further provision that the lessee should have the right at any time, on payment of $1 to the lessors, to surrender the lease for cancellation, after which all payments and liabilities thereafter to accrue under and by virtue of its terms should cease and determine. In an action by the owners of the land to cancel the instrument and remove same as a cloud on their title commenced prior to the expiration of the term of five years, it appearing that no well had been commenced, but that the lessee had made timely payments or tender of all sum^ stipulated to be paid for delay in completing a well, held, (a) that the consideration recited in the face of the instrument is sufficient to support the grant of the exclusive right to occupy the land and explore the same for oil and gas and to take and remove such as may be found therein for the entire term specified, and also the right of the lessee, on compliance with the conditions expressed, to terminate the same; (b) that the agreement is not void for the want of mutuality; (c) that, although no well had been commenced on the premises, the lessors had not the option to refuse timely tender of payments for delay in completing a well and terminate the grant, or to compel a surrender thereof; (d) that the instrument does not create a tenancy at will within the operation of the rule that an estate at the will of one party- is equally at the will of the other.</p> <p>2. Case Overruled.</p> <p>. Brown v. Wilson, 58 Okla. 392. 160 Pac. 94, L. R. A. 1917B, 1184, on the questions herein decided, is overruled.</p>

Error from District Court, Texas County; R. H. Loofbourrow, Judge. Suit by J. D. Conwill against Marion El-dridge and Benjamin F. Eldridge, administrators of the estate of W!. H. Eldridge, deceased. Verdict for defendants, motion for new trial overruled, and plaintiff brings error.

<p>Error from District Court, McCurtain County; O. E. Dudley, Judge.</p> <p>Action for injunction by J. C. McDougald against the Incorporated Town of Broken Bow and others. From an order denying the injunction, plaintiff brings error.</p>

Error from District Court, Pawnee County; Conn Linn, Judge. Action by Kate Caesar and' another againsit A. D. Krow and another. Demurrer to 'petition sustained, and plaintiffs bring error.

<p>Error from District Court, Craig County; Geo. C. Crump, Assigned Judge.</p> <p>Action by the Germo Manufacturing Company against the Board of County Commissioners of the County of Craig, State of Oklahoma. Judgment for plaintiff, and defendant brings error.</p>

Error from District Conyt, Oklahoma County; Geo. W. Clark, Judge. Action by Willie B. Peeler against the Metropolitan Life Insurance Company. Plaintiff’s motion for judgment on the pleadings sustained, and defendant brings error.

Error from District Court, Muskogee County; Geo. O. Crump, Assigned Judge. Action by Dora May Perryman against Ed. L. Rees and William Sharp. Judgment for plaintiff against defendant Rees, and in favor of defendant Sharp as against plaintiff, and defendant Rees and plaintiff each bring error.

Error from District Court, Wagoner County; Mark L. Bozar-th, Judge. Action between W. T. Drake and others .and Otis H. Ruble and others. Judgment for the latter, and the former bring error.

<p>Error from District Court, Okmulgee County; Tom D. MeKeown, Assigned Judge.</p> <p>Suit by James M. Hays against the Oklahoma Coal Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Oourt, Oklahoma County; John W. Hayson, Judge. Action by M. P. Morrell and Lenice Mor-rell, a minor, by her next friend, M. P. Mor-rell, and as next of kin to Loris Morrell, deceased, against the Silurian, Oil Company. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Marshall County ; Jesse M. Hatchett, Judge. Action by Freeman Arkansas and another against W. Henderson and others. Judgment for plaintiffs, and from an order overruling a motion to vacate the judgment, defendants bring error.

<p>(Syllabus.)</p> <p>Liability of Stockholder — Extent — Trust Company.</p> <p>(The same as in Case No. 3330, Lank'ord v. Menefee, 45 Okla. 228. 145 Pae. 375.)</p>

<p>(Syllabus.)</p> <p>1. Conversion — “Conversion.”</p> <p>Conversion consists in a tortious act by the defendant, by which he deprives the plaintiff of his goods, either wholly, or but fo,r a time.</p> <p>2. Same — Right oí Action — Requisites in General.</p> <p>'To maintain the action of trover, there must be either a taking from the owner, or an unwarranted assumption of control and ownership over the thing, or an illegal use ov abuse of it, orl proof of demand and refusal to surrender.</p> <p>3. Same — Purchase of Personal Property in Good Faith — Knowledge.</p> <p>The mere purchase of personal property, in good faith, from one who has no right to sell it. is not conversion of it, against the lawful owner, until his title has been made known and resisted.</p> <p>4. Same — Talcing—Evidence.</p> <p>Record examined, and held, that the personal property involved herein was not shown to be taken or interfered with by the defendants in circumstances constituting a conversion thereof.</p>

Error from District Court, Oklahoma County; Geo. W. Clark. Judge. Action by Almeda Sperry and another against J- L. Francis and others to set aside certain orders of the county court i.n approving the final account filed by Francis as plaintiffs’ former guardian and releasing his bondsmen from liability. Judgment vacating the orders, restating the account, and against Francis and his bondsmen, and defendants bring error.

<p>Error from District Court, Rogers County; W. J. Campbell, Judge.</p> <p>Action by H. T. True, Jr., against the St. Louis, Iron Mountain & Southern Railway Company. Judgment for plaintiff, and defendant 'brings error.</p>

Error from District Court, Hughes County ; Geo. C. Crump, Judge. Action for partition by J. M. Champion against P. A. Hoodenpyl and Addie Davis by her guardian ad litem and L. W. Crutch-er, with answer and cross-petition by defendant Hoodenpyl. Motion challenging the court’s jurisdiction overruled, and judgment rendered determining the interests of the respective parties, motion for new trial overruled, and defendants bring error.

Error from District Court, Noble County; W. M. Bowles, Judge. Action, by T. A. Hyailey and, ano their against the Southwestern Oil Company and another. Judgment for defendants, and plaintiffs bring error.

<p>(Syllabus.)</p> <p>1. Fraud — Fraudulent Representations — Material Fact.</p> <p>False representations, made in an exchange of a pair of mules for a pair of ¡mares, as to the age, condition, and ability of the mules to do certain railroad construction -work, for which they were wanted, and that they were as goods as a certain other team with which tooth parties were familiar, were not mere (expressions of opinion as to value, but (amounted to representations of material extrinsic facts affecting value, and are sufficient on which to predicate action for fraud.</p> <p>2. Repl/evin — Verdict—Judgment—Value of Property.</p> <p>In an action for replevin of two mares, where the value of each ¡mare! was stated in the affidavit, and verdict was rendered for the plaintiff for the return of the mares and their offspring, the defendant having retained possession of same, the judgment will not be vacated for the reason that the verdict found the gross value and didi not state 'the separate value of each animal.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. . Application by the Farmers’ Hardware & Implement Company and another against the Parlin & Orendorff Company and W. W. Storm, receiver, for the vacation of an order ■approving the final report of the receiver. Motion overruled and movant brings error.

Turner, J., dissenting. Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by Joseph W. Beatty and another against the Eastern Oil Company. Judgr ment for plaintiffs, and defendant brings error

<p>Error from District Court, -Craig County; Geo. C. Crump, Assigned Judge.</p> <p>Action by Wm. P. Thompson against John S. Thomason, as administrator of W. It. Badgett, deceased. Judgment for plaintiff, motion for new trial denied, and defendant brings ei'ror.</p>

<p>Appeal from State Industrial Oomnxission.</p> <p>Claim for compensation by Frank Flynn against the Ponca City Milling Company and the Millers’ Mutual Casualty Company. From an award of the Industrial Commission; in favor of the claimant, the companies appeal.</p>

<p>Appeal from an Order of the Corporation Commission.</p> <p>The City of Durant and the Town of Bok-chito and others appeal from an order of the Corporation Commission granting an application of the Consumers’ Light & Power Company for an increase in the rates to be charged for electric current.</p>

<p>(Syllabus.)</p> <p>Taxation — Taxation of State Bank — Illegality — Remedy.</p> <p>Where the assessment of a state bank was increased, without notice, by the county board of equalization adding the value of state public building bonds held by the bank, which were exempt from taxation, the tax was illegal to the amount of such increase, and the bank’s remedy was to pay the tax levied, and sue for recovery of the illegal portion in the manner provided by section 7, subd. B, art. 1, c. 107, Sess. Laws 1915.</p>

Error from District Court, Garfield County : J. C. Robberts, Judge. Action for injunction by E. E. Newman and others against Warner-Quinlan Asphalt Company and others. Judgment for defendants, denying the injunction, and plaintiffs ;>3*ing error.

<p>(Syllabus.)</p> <p>Appeal and Error — Appellate Procedure— ■Statute — Parties.</p> <p>I'1, proceedings hi error in this court to review judgments and final orders of the district court rendered prior to March 23, 1917, the procedure is "ovemed by .eetions 5238 to 5240, R. Ii. 1910; and where in such proceeding a defendant in error has not entered a general appearance in this court and summons in error was not issued and served, or waived within the time prescribed by law for perfecting an appeal, this court is witli-'•ut "risdietion to ente1, m'n spch proceeding in error as to such defendant in error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action for injunction by W. E. Crosslin and others against the Warner-Quinlan Asphalt Company and others, in which the First National Bank of Cleveland was joined as a- defendant. Judgment for defendants, and plaintiffs bring error.

Error from Superior Court, Tulsa County; M. A. Breckenridge, Judge. Action by Leroy Archer, by his guardian against Joseph Ardizzonne and another, to recover certain rentals under an oil and gas mining lease. Judgment for plaintiff. Defendants appeal.

<p>Error from District Court, Payne County; James B. Cullison, Assigned Judge.</p> <p>Action by James L. Andrews against the Keys tone Oil & Gas Company and the U. S. Supply Company. Judgment for plaintiff, and defendants bring error.</p>

Error from’ District Court, Okmulgee County; Ernest B Hughes, Judge. Action by Sarah C. iSmith, a minor, by her guardian and next friend, against J. A. Roper, March Monday, guardian of Annie Monday, G. W. King, and the Brown Lumber Company. Prom the decree, defendant J. A. Roper brings error.

Error from District Court, Lqgan County; A. H. Huston, Judge. Petition by Katie E. Burlier to be appointed administratrix of Catherine Rouse, deceased, and petition by George Rouse to be appointed administrator, contesting the. former application, with objection by Katie E. Burker and David Rouse. From an order appointing George Rouse administrator, Katie E. Burker and David Rouse bring error.

<p>Error from District Court, Texas County; T. P. Clay, Judge.</p> <p>Action between the Incorporated Town of Guymon and Mollie Triplett. From the judgment, the town brings error.</p>

<p>Original proceedings by George O. Gibson against A. J. Hutts.</p>

Error from District Oourt. Bryan County; Jesse M. Hatchett, Judge. Consolidated action by Charles Cowen and Myrfie Susie Cowen, minors, by their guardian, A. Neeley, against the Title Guaranty & Surety Company and' John R. Cowen. Judgment for plaintiffs, and defendant Title Guaranty & Surety Company brings error.'

<p>Error from District Court, Osage County ;■ R. H. Hudson, Judge.</p> <p>Action by D. G. Williams against the Auto Trading Company. Verdict and judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>3. Telegraphs and Telephones — Joinder of Lines.</p> <p>The right of one telephone company to connect its lines with that of another company, given under section 5. art. 9, of the Constitution, implies a mechanical union of the lines so as to admit of the convenient passage of messages from one to the other, but does not include the right to compel business intercourse between two competing companies to the detriment of either. The purpose is to establish '.md maintain means for a continuous transmission of messages for the benefit and convenience of the public.</p> <p>2. Same — Fewer of Corporation Commiis-sica;.</p> <p>The Corporation Commission is without authority to arbitrarily require two competing telephone companies to establish a physical connection betiween their exchanges and. toll lines, under rules and regulations which are unfair and which work a discrimination against the subscribers of either cvmpany.</p>

Error from District Court. Garvin County; F. B. Swank, Judge. Suit by the J. I. Case Threshing Machine Company against Albert Rennie and another. Demurrer of defendant Rennie to plaintiff’s evidence sustained, and plaintiff brings error.

<p>Error from District Court, Tulsa County: 'Conn Linn, Judge.</p> <p>Action by J. K. Ronne against Manuel Hirsh. Judgment for plaintiff, and he brings error.</p>

Error from District Court, Garvin County ; F. B. Swank, Judge. Suit by James A. Hill against Ruth Hill and others. Decree for plaintiff, and defendant Ruth Hill, a minor, by Mattie Hill, her guardian, brings error.