Volume 72 — Oklahoma Reports

Error from District Court Elaine County; Thomas A. Edwards, Judge. Suit by C. T. Atkinson against W. C. Phin nie and William Crawford. Judgment for plaintiff on a\ directed verdict, and defendants bring error.

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Equitable suit by W. M. Elliott against J. R. Bond. Judgment ior defendant conditionally, and plaintiff brings error.</p>

Error from District Court, Le Flore County; W. H. Brown, Judge. 'Action by Mrs. Jane Pitchford against the Chicago, Rock Island & Pacific Railway .Company, revived after plaintiff’s death in the name of W. T. Forrester, administrator. Verdict and judgment for plaintiff, and defendant brings error.

<p>Proceedings by the State Bar Commission, on the relation of D. A. Bridges, for the disbarment of H. W. Sitton.</p>

<p>(Syllabus.)</p> <p>1. Sales — Action for Price — Notice of Defect — Instructions.</p> <p>Instructions given and requested instructions refused examined, and held that the court did not err in instructing the jury in the respects complained of.</p> <p>2. New Trial — “Verdict Contrary to Law.”</p> <p>A verdict is contrary to law when it is rendered in disobedience or disregard of the court’s instructions.</p> <p>'3. Appeal and Error — Insufficiency of Evidence — Presentation of Grounds of Review.</p> <p>Where the plaintiff in error (defendant below) acquiesced in the submission of the issues to the jury without either demurring to the plaintiff’s evidence or asking an instructed verdict, or otherwise attacking the sufficiency of the evidence, he cannot in this court successfully claim the evidence does not support the verdict, even though assigned in the motion for new trial as grounds therefor.</p>

<p>(Syllabus.)</p> <p>1. Intoxicating Liquors — Offenses — Repeal of Statute,</p> <p>Section 3619, Revised Laws 1910, was not repealed by section 4, c. 26, Session Laws 1913.</p> <p>2. ' Statutes — Implied Repeal — Statutes on Same Subject-Matter.</p> <p>Repeals by implication are not favored, and, when different legislative enactments have reference to the same subject and are consistent with each other, they must be con.strued together and harmonized, if- possible, so that effect will be given to each so far as is consistent with' the legislative intent us evidenced by the latest enactment.</p> <p>3. Constitutional Law — Criminal Law — Intoxicating Liquors — Prosecutions — Double. Jeopardy — Forfeiture of Estate — Due Process of Law.</p> <p>Section 3619, Revised Laws 1910, is not repugnant to sections 15, 17 or 21. art. 2, of the Constitution of this state, nor of the fourteenth amendment to the Constitution of' the United States.</p> <p>4. Intoxicating Liquors .— Penal Action —■ Erroneous Instruction — Reversal.</p> <p>Where a verdict is so clearly right that had it been otherwise the court would have set it aside, a judgment will not be reversed for the giving of an erroneous instruction.</p>

Error from District Court Wagoner County; It. C. Allen, Judge. Action by Ed Cruel, a minor, by A. J. Mason, his guardian, against Ed Knox and others.' Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Ruling on Motion for New Trial — Review.</p> <p>Where the motion for a new trial is not preserved in the record, nor the grounds therefor stated, this court cannot, in proceedings to review the judgment, hold that the trial court erred in overruling the motion.</p> <p>2. Appeal and Error — King of Motion for New Trial — Recitals in Record.</p> <p>Where no motion for a new trial has been actually filed within the statutory period, a recital in the record that the plaintiff “in due form files his motion for a new trial, and the same being heard and considered is by the court denied,” is of no avail as a substitute for the filing of such motion.</p> <p>3. Appeal and. Error — New Trial — Time for Filing — Review—Statute.</p> <p>Section 503-5, Rev. Laws 1910, requiring a motion for a new trial to be filed within three days after the verdict or decision is rendered, is mandatory; and, in the absence of a showing that the party filing it has been unavoidably prevented from doing so within the time fixed by statute, this court cannot consider errors occurring at the trial.</p>

<p>(Syllabus.)</p> <p>Indians — Alienation of Land — Age of Allot-tee — Sufficiency of Evidence.</p> <p>Evidence examined, and found to reasonably support the findings and judgment of the trial court.</p>

<p>Error from District Court, Okmulgee County; R. P. De Graffenried, Judge.</p> <p>Action by Etha Davis, nee Hutton, against Alice R. Thompson and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Nowata County; W. J. Campbell, Judge. Action between Alice Holbert and others and Ed R. Patrick and others. Prom the judgment, the former bring error.

Error from District Court, Greek County; Geo. W. Clark, Assigned Judge. Sulit toy the .American JNatiorjal Bfank against the Southwestern Bedding Company, in which Waldo Huycke was appointed receiver, and in which the Smith & Furbush Machine Company filed a petition of intervention. Judgment against intervener, and it brings error.

Error from District Court, Oklahoma County; John W. Hay son, Judge. Appeal from- a judgment rendered upon an appeal from an order of the County Board of Equalization relative to an assessment of taxes against the Oklahoma Stockyards National Bank.

<p>Error from District Court, Okmulgee County; Chas. G. "Watts, Judge.</p> <p>Action to quiet title iby W. A. Jolly against W. L. McKee. Judgment for plaintiff, and defendant brings error.</p>

Appeal frcm State Orrp ration Commission; The Kansas City Southern Railway Company brings error from an order of S. F. W/ilson and others, as members of the Corporation Commission, requiring the company to establish a flag station or stop certain trains when flagged at a certain point.

<p>Original petition by Bruce Lankford for a writ of habeas corpus.</p>

<p>Error from District Court, Noble County; Cham Jones, Assigned Judge.</p> <p>Action by E. E. Van Slyke and another against the Gypsy Oil Company. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Creek County; Ernest B. Hughes, Judge. ' Action by Robert Bruner against A. Oswald and others. Trial by agreement before the court without a jury, findings and judgment for defendants, motion for new trial denied, and plaintiff brings error.

<p>Error from District Court, Goal County; J. H. Linebaugh, Judge.</p> <p>Action between Bhoda Kidley and J. D. Petty. Judgment for the latter, and the former brings error.</p>

<p>(Syllabus.)</p> <p>Taxation — Order of County Board of Equalization — Appeal.</p> <p>There is no appeal provided by law from the action of the county board of equalization, refusing to deduct the amount of increase ordered by the state board of equalization in the assessed valuation of the real estate of a bank, from the assessed value of its money capital, surplus, and undivided profits.</p>

<p>(Syllabus.)</p> <p>1. Mortgages — Deed or Mortgage — Determination — Intention of Parties.</p> <p>Whether a transaction concerning real estate, evidenced by an assignment of a certificate of purchase of real estate issued by the state, and at the same time a written contract, acknowledging a certain amount due, and agreeing,- upon the payment of the same within a certain time, to reconvey, and that upon failure to pay the same within one year the person will deliver up possession, must be determined by a consideration of the circumstances of the case, whether the same was an absolute transfer or was only taken as security. The form of the assignment is not conclusive. The intention of the parties is the inly true and infallible test. Their intention is to be gathered from the circumstances attending the transaction, and the conduct of the parties, as well as from the face of the written contract.</p> <p>2. Same — Conveyance or '.Security — Evidence.</p> <p>The evidence examined, and held to prove conclusively that the assignment was intended as security only for an indebtedness. Error from District Court, Oklahoma County; John W. Hayson, Judge.</p>

Error from District Court, Payne County; A. H. Huston. Judge. Action by L. B. Sweet against F. A. Henderson and 27 others. Judgment for defendants, motion for new trial overruled, and plaintiff -brings error.

<p>(Syllabus.)</p> <p>1. Courts — Jurisdiction of County Court— Amount — Interest.</p> <p>Under section 12 of article 7 of the Constitution; providing that the county court, coextensive with the county, shall have original jurisdiction in all the probate matters, and until otherwise provided by law shall have concurrent jurisdiction with the district court in civil cases in any amount not exceeding $1,000, exclusive of interest, held, in an action to recover damages for the negligent delay in a shipment of live stock, resulting in a loss by shrinkage and a decline in the market, that interest on the damages sustained- should be excluded in determining the maximum jurisdictional amount for which the action may be brought in the county court.</p> <p>2. Carriers — 'Delay in Carriage of Live Stock — Common-Law Liability — Special Contract — Carmack Amendment, i</p> <p>The Carmack Amendment (U. S. Comp. St. §§ 8G04a, 8604aa) does not take away the -right of the shipper to maintain an action on the common-law liability of the carrier for the negligent delay in the shipment of live stock resulting in loss by shrinkage and a decline in the market, although the same be an interstate shipment. However, as to interstate -shipments, the common-law liability of the carrier for safe carriage of property may be limited by a special contract with the shipper, where such contract, being supported by a consideration, is reasonable and fairly entered into by the shipper. and does not attempt to cover losses caused by the negligence or misconduct of the carrier.</p> <p>3. Same — Live Stock Contract — Notice of Claim.</p> <p>A provision in a live stock contract or bill of lading to the effect that as a condition precedent to a recovery for any damages by such contract, the shipper will give notice in writing of the claim therefor to some general officer or the nearest station agent of the carrier, or to the agent at destination o’ to some general officer of the delivering line before such stock is removed from the point of shipment or from the place of destination, and before such stock is mingled with other stock, such notice to be served within one day after the delivery of such stock at destination, is valid and must be enforced by the state courts, unless the same be waived.</p> <p>4.Same — Liability—Conditions Precedent— Waiver.</p> <p>A stipulation limiting the liability of the carrier or fixing the time and manner of giving notice or presenting claims, being a condition precedent to a right of action by the shipper, cannot be waived by the carrier.</p>

Error from District Court, Tulsa County; Conn Linn, Judge. Proceeding by Stephen B. Nelson, guardian, against Cora B. McKee for the establishment of a boundary line. From a judgment affirming, on appeal, a survey made by county surveyor, Cora B. McKee brings error.

<p>(Syllabus.)</p> <p>1 Corporations — Purchase of Realty Mortgages — Validity—Foreign Statute.</p> <p>Under thei provisions of section 7091, Rev. St. Mo. 1909, a contract made with the cor-porators or organization committee of a corporation, before the corporation is authorized to transact business, by the terms of which the corporation is to purchase real estate mortgages after it is authorized to do-business, is void and not binding on the corporation or enforceable against it.</p> <p>2. Contracts — Illegality—Enforcement.</p> <p>In an action broirght in which it is necessary to prove an illegal contract in order to maintain the action, the courts will not enforce it, not will they enforce alleged rights springing directly from it.</p> <p>3. Corporations — Void Contract — Adoption —Statute.</p> <p>A resolution passed at a stockholders’ meeting of a Missouri corporation, commending and approving in general terms all the acts of the incorporators and officers of the corporation, does not amount to an adoption of a contract made by the corporators which was void under the statute.</p>

<p>Error from District Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by Emma Haney and others against Albert Anderson and others. Demurrer to petition sustained, and plaintiffs bring error»</p>

<p>(Syllabus.)</p> <p>Indians —■ Allotments — Inheritance — “Nearest Relation.”</p> <p>Lands allotted, under the provisiQns of section 28 of an Act of Congress of March 1, 1901 (31 Stat. at L. 870, c. 676), in the name of a Creek" citizen .who died intestate and without issue before receiving his allotment, descend to his heirs according to the law of descent and distribution of the Oreek Nation : and, where both parents are alive at the time of descent cast, are inherited by the mother as the “nearest relation,” to the exclusion of the father.</p> <p>Sharp. O. J., dissenting.</p>

Error from District Court, Okmulgee County: Chas. G. Watts. Assigned Judge. Action by Prank D. Eakes and another against George Nortbup and others. Demurrer to second amended petition overruled, and judgment for plaintiffs, and Nortb-up and others bring error.

Error from District Court, Garfield County; James B. Cullison, Judge. Action by F. E. Gibson against Minnie M. Anthony and others. Judgment 'for plaintiff by default, defendant George M. Dizney’s motion to vacate the judgment against him was sustained, and plaintiff and the other defendants bring error.

Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by Thomas Jay Archer, an infant, by John W. Archer, his guardian, against Joseph Ardizonne, E. J. Ossenbeek, and others. Judgment for plaintiff against the named defendants and in favor of the other defendants, and the named defendants bring error.

<p>(Syllabus.)</p> <p>1. Master and Servant — Judgment—Voluntary Discharge.</p> <p>In an action for damages for wrongful discharge of plaintiff before the expiration of the term of employment, the breach of the contract was a necessary element in the statement of plaintiff’s action, which he was required to affirmatively prove/ and the defendant was entitled to introduce evidence under a general denial controverting any fact which the plaintiff was bound to prove in order to establish his cause of action.</p> <p>2. Appeal and Error — Harmless Error — Evidence — Instruction.</p> <p>Where in such action the jury finds for defendant upon the issue as to a breach of the contract, error in the exclusion of evidence set out in the opinion and the giving of an erroneous instruction as to the measure of damages will not work a reversal of the case.</p>

Error from District Court, Major County; James B. Oullison, Judge. Action by H. W. Moyers against John Leasure. Judgment for plaintiff, and defendant brings error, and after plaintiff’s death pending appeal the cause was revived in the name of J. 0. Hughes as executor.

Error from District Court, Stephens Goun'ty; Cham Jones, Judge. Action in justice court by the McCall Company against P. T. Long, and others, constituting the Grand Leader. From a judgment of the district court, on appeal, sustaining a demurrer to plaintiff’s evidence and rendering judgment for defendants for their costs, plaintiff brings error.

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by Benjamin Grutofos Jr., against Green Thompson and others. Judgment for defendants, motion for new trial overruled, and plaintiff excepts a'nd brings error.

Error from County Court, Rogers County; Edward Jordan, Judge. Action by the state of Oklahoma against one Dodge Automobile, Motor No. 144296, Car No. 96546, with interplea and claim by the First National Bank of Roff, Okla. Judgment confiscating car and denying claim', motion for new trial denied, and claimant brings error.

<p>Error from County Court, Creek County; J. Y. Frazier, Judge.</p> <p>Action by Ada Sams against the Board) of County Commissioners of Creek County. From a judgment for a lesser sum than sued for, plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>1. Pleading — Objection to Evidence— Sufficiency of Counterclaim,</p> <p>The objection to cei’tain evidence because the same is incompetent, irrelevant, and immaterial is not sufficient to test the sufficiency of the petition, counterclaim, or set-off, or whether it is a proper subject of litigation in the controversy, when the counterclaim or set-off hag not been tested by demurrer, motion or an objection to the introduction of any evidence, .on the ground that the pleading does not state a cause of action or any defense.</p> <p>2. Appeal and Error — Admission of Evidence — Review.</p> <p>Whether the court erred in the admission of testimony will not be considered, when no objections are made to the introduction of the testimony when offered.</p>

Error from Superior Court, Muskogee County; Hal C. Thurman, Judge. Action by the Cahill-Swift Manufacturing •Company and others against the Baltimore Investment Company and Vade N. Sayer. Judgment for plaintiffs for foreclosure of mechanics’ lien on leasehold interest and adjudging it inferior to lessor’s lien under a lease, and plaintiffs bring error.

<p>Error from District Court, Caddo County : Will Linn, Judge.</p> <p>Action by William Mackenzie against the City of Anadarko. Judgment for defendant, and plaintiff brings error.</p>

<p>Error \from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by J. A. Rixse and others against the Jens-Marie Oil Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Muskogee •County; R. P. De Graffenried, Judge.</p> <p>Action by the American Indemnity Com pany against J. Garfield Buell. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Carter County; W. F. Freeman, Judge. Action by Nina Pearl Ansley and Henry Ray Ansley, minors, by their next friend and legal guardian, Dolly May Ansley, against Edward Gault and another. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Tulsa County; W. J. Campbell, Judge. Action by C. M. BlcCoy and J. K. Gano, partners under the firm name of McCoy & Gano, against the Elwood Oil & Gas Company. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by Walter W. Groom (William L. Cheatham, substituted plaintiff) against Joseph E. Dyer. Judgment for defendant, motion for new trial overruled, and plaintiff brings error.

Error from District Court, Carter County; A. Eddleman, Judge. Action by M. G-orman and J. E. McCarty against John H. Carlock ' and John R. Dexter. Judgment for defendants, motion for new trial overruled, and plaintiffs bring error.

<p>Error from District Court, Okfuskee County; Geo. C. Crumpi, Judge.</p> <p>Original application by C. H. Diehl for prohibition against 1-Ion. George C. Crump, as Judge of the District Court for the Ninth Judicial District, and the District Court for Okfuskee County, Okla.</p>

Error from County Court, McClain County; A. J. Maudlin, Judge. Action by Strauss Bros, against M. Bon-neau and Bonneau Bros. Judgment against defendant M. Bonneau and suit dismissed as to Bonneau Bros., and defendant M. Bon-neau brings error.

W. Bolen, Judge. Suit by W. J. Iieed and Mrs. J. K. Reed against the Deming Investment Company. Judgment for plaintiffs, and defendant appeals upon petition in error with transcript of record attached.

Error from District Court,' Murray County ; F. B. Swank, Judge. Action by Joseph H. Lowery and others against the First State Bank of Hewitt, Okla. Judgment for plaintiffs, and the defendant brings error.

Error from District Court, Lincoln County; Ohas. B. Wilson, Jr., Judge. Action by the Union National Bank of Chandler, Okla., against Cora Neil, formerly Cora Walker, a single woman, and Cora Neil, as administratrix of the estate of Elizabeth Jackson, deceased, and others. Judgment for plaintiff against Cora Neil, motion to vacate the judgment overruled, and Cora Neil individually and as administratrix brings error.

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action hy Ida Horn against Thomas E. Bobier and others. Judgment for defendants. From the judgment in favor of defendants Thomas E. Bobier and wife, plaintiff brings error.

<p>Error from District Court, Washington County; R. H. Hudson, Judge.</p> <p>Suit between the Union National Bank of Bartlesville, Okla., and the Leidecker Tool Company, P. H. Mitchell, P. H. Mitchell & Co., and another. Judgment for the latter, and the former brings error.</p>

Error from District Court, Wagoner County; R. P. De Graffenried, Judge. Action by the Aetna Life Insurance Company against Eliza Damet. John B. Damet, and others. Judgment for plaintiff upon the pleadings, and defendants bring error.

Error from District Court, Canadian County; John W. Hay son, Judge. Action by E. C. D’Yarmett against School District No. 27, Canadian County, Okla. Demurrer to petition sustained, and judgment for defendant, and plaintiff brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Suit by the Lawyer-Cuff Company against W. F. Bland and R. N. McConnell. Cause dismissed as to defendant McConnell, and judgment for plaintiff against defendant Bland, and he brings error.

Error from District Qourt, Cleveland County; F. B. Swank, Judge. Proceeding between A. B. Baleh and Claude Pickard, Sheriff of Cleveland County, and another. Judgment for the latter, and the former brings error.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Suit by E. B. Johnson against W. P. Jones and Hodge Bailey, Sheriff of Grady County. Temporary injunction granted, and defendants bring error.</p>

Error from District Court, Garvin County; R. McMillan, Judge. Action by Alvin F. Pyeatt, guardian, and others against Jennie C. Estus and others. Judgment for defendants, and plaintiffs bring error.

Appeal by tbe Mangum Electric Company from an order of the State Corporation Commission, fixing the rates 'to be charged by appellant for electric service in the City of Mangum.

Appeal.from District Court, Carter County; W. E. Freeman, Judge. Action by Martha Ousher against B. C. Ricketts and the First National Bank of Ardmore, Okla. Verdict for plaintiff, motion for new trial sustained, and case dismissed, and appeal to Supreme Court dismissed. From the denial of a motion to set aside the order dismissing tfie cause, and to reinstate case fin the district court docket, she appeals.

<p>(Syllabus.;</p> <p>1. Officers — Action on Bond — Pleading— Evidence.</p> <p>To entitle the plaintiff to rece ver in an action against the sureties upon the official bond of a public officer, it is necessary for the plaintiff to allege and to show in his petition defaults which are covered by and are included within the conditions of the bond sued on.</p> <p>%. Schools and School Districts — Bond of Treasurer — Liability of Sureties.</p> <p>P. was elected treasurer of a school/ district in April. 1908, and gave a bond with sureties, to account for funds coming into his hands during his term of office, and in April, 1909, at the next election provided by law, was re-elected to the same office, and entered upon the duties thereof on the 7th day of May thereafter, and continued in office but without giving a new bond. Held, that the sureties on the bond given upon his first election are not liable for defaults occurring after the commencement of his second term.</p>

Error from District Court, Nowata County ; W. J. Campbell, Judge. In the matter of the guardianship of Callie M. Johnson and John W. .Johnson, minors, Joseph T.’ Johnson, guardian. Petition by the Twin State Oil Company to compel repayment of bonus paid for oil leases' on land of minors. Judgment for defendants, and plaintiff brings error.

Error from District Court, Coal County; J. H. Linebaugh, Judge. Action by Ada T. Cushing, “executrix of the estate of Francis J. Cushing deceased.” against Robert M. Cummings and others. Judgment for defendants on demurrers to separate amended replies, and action dismissed, and plaintiff brings error.

<p>(Syllabus.)</p> <p>Gas — Order of Corporation Commission — Discount of Bills — Review.</p> <p>Where a gas company is required by order of the Corporation Commission to furnish an adequate supply of gas for domestic consumption and is allowed to charge the public a maximum rate which is based upon the adequacy of the service rendered as well as upon the quantity of gas furnished, and it is subsequently shown that this degree of efficiency is not sustained by the company during certain winter months, the Corporation Commission has power to make an order requiring the company tó discount its bills rendered for such months a certain per cent, for the purpose of apportioning the maximum rate allowed according to the efficiency of the service rendered, as well as to the quantity of gas furnished, where it is practicable to do so; and where it appears from the findings of fact of the commission, which are conceded to be correct, that the discount ordered bears a fair relation to the falling off in service, such order will not be disturbed on appeal.</p>

Error from District Court, Hughes County; John Oaruthers, Judge. Foreclosure action by Elizabeth Stevens against John N. Mariis and others. Judgment for plaintiffs, and certain defendants bring error.

Error from District Court, Grady County; Will Linn, Judge. Action by Mrs. G. W. Guthridge, adminis-tratrix, against the Chicago, Rock Island & Pacific Railway Company. Verdict and judgment for plaintiff, and defendant brings error.

Error from County Court, Pontotoc County; I. M. King, Judge. Action by Oklahoma State Bank of Ada against A. M. Gregg. Demurrer to defendant’s amended answer sustained, and default judgment against defendant, motion, for new trial'overruled, and defendant'brings error.

<p>(Syllabus.)</p> <p>:l. Eminent Domain — Damage for Public Use — Damages to Property Adjacent to Pesthouse.</p> <p>Depreciation of the value of real property caused by establishing a hospital for contagious diseases, commonly known as a pegckouse, on adjacent land, although under statutory authority, constitutes a damaging cot private property for public use, for which tcompensation must be made, within the ■meaning of section 24, art. 2, of the Constitution.</p> <p>2. Same — Taking of Property by City— Right to Damages — Governmental Functions.</p> <p>That the city, in erecting and operating a - hospital for contagious diseases, was exercising a lawful governmental function, did not warrant its exercise in violation of the Constitutional _ guaranty to the citizen that private property should not be damaged for public use without just compensation.</p>

<p>Error from District Court, Pontotoc County; J. W. Bolen, Judge.</p> <p>Suit by H. A. Kroeger against C. M. Martin and others.. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Harper County ; W. C. Crow, Judge.</p> <p>Action by Sam Zollinger against Olive Durham, and others. Demurrer to petition sustained, and plaintiff .brings error.</p>

<p>(Syllabus.)</p> <p>Mortgages — Release by Attorney — Liability ior Penalty.</p> <p>Section 4022, Rev. Laws 1910, provides: “Release by Attorney. Any agent or attorney duly authorized to collect the debt secured thereby shall have power and authority to release a mortgage, and a request made of such agent or attorney who shall have collected the debt shall bind the holder of the mortgage the same as if made to him in person, and bind him to pay a like penalty.” Held, that the last clause, “and bind him to pay a like penalty,” refers to the holder of the mortgage; and further held, that the demand for the release from the agent or attorney fully authorized to collect the mortgage debt will render the holder liable for the penalty provided for in section 4023 the same as if such demand for release were made upon the holder in person.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by the State of Oklahoma against B. S. Bailey, and others, with cross-petitions by defendant M. F. Menefee, and by defendant Bailey. Judgment for defendant Mene-fee, and the State and defendants Bailey and others bring error.

Error from District Court, Comanche County; Cham Jones, Judge. Action by Tom Burnett against the City of Lawton, B. C. Koger, and John Langwell. Judgment for plaintiff against the City of Lawton and B. C. Koger, and in favor of defendant, John Langwell, and defendants the City of Lawton and B. C. Koger bring error.

<p>Error from District Court, Okfuskee County; Geo. C. Crump, Judge.</p> <p>Action by Buddie Harjo, a minor, and others, against Thomas F. Meagher. Judgment for plaintiffs, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Carriers — Assistance to lieparting Passenger — Holding- Train — Liability.</p> <p>One who goes upon a train to render nee essary assistance to a passenger, in conformity with a practice approved or acquiesced in by the carrier, has a right to render the needed assistance and to leave the train; and the carrier, in permitting him to enter with knowledge of his purpose, is presumed to agree that he may execute it, and is bound to hold the train a reasonable time therefor, df he is injured by reason of the sudden starting of the train or the omission to give the customary signals, the carrier will- be liable.</p> <p>3.Same — Notice of Entry of Train — Negligence — Evidence.</p> <p>Evidence in this case examined, and held sufficient to go to the jury on the question of whether the defendant railway company, through its agents, had notice that the deceased entered the train for the purpose of seating his wife and whether it was negligent in suddenly starting the train without giving him a reasonable time to procure a seat for his wife and to get off in safety.</p> <p>3. Appeal and Error — Judgment—Bar— Parties on Appeal — Jurisdiction to Reverse or Modify.</p> <p>In an action by plaintiff against defendant railway company and two members of its train crew for the negligent killing of her husband in the operation of one of defendant company’s trains, a judgment was rendered for the plaintiff and against the defendant railway company, and in favor of , the individual defendants. The defendant railway company appealed to the Supreme Court, naming its co-defendants defendants in error, where the cause was reversed and remanded. On the second trial the trial oourt sustained defendant’s objection to the introduction of any evidence against the railway company’s co-defendants, said trial resulting in a judgment against the defendant railway company. Held: (1) that on the former appeal the two members of the train crew were proper and necessary parties thereto, and were properly joined as defendants in error; (2) that the judgment rendered at the'first trial was a joint judgment and the Supreme Court obtained jurisdiction to reverse, vacate, or modify the same or direct that such be done by the trial court as to all parties; (3) upon the reversal of said judgment plaintiff was entitled to a new trial as against all the defendants in the action; (4) that the first judgment in favor of the individual defendants was not a bar to recovery against the railroad company as to the alleged negligence of the individual defendants.</p> <p>4. Carriers — Instructions.</p> <p>Certain requested instructions examined and held, that insofar as they state correct propositions of law, as applicable to the instant case, are covered in the gener/il charge.</p> <p>5. Same.</p> <p>The charge of a certain instruction set out in the opinion held not to constitute prejudicial error.</p> <p>6.Appeal and Error — Harmless Error.</p> <p>A case will not be reversed for error in the admission or rejection of evidence, unless it appears from an examination of the entire record that such error has resulted in a. miscarriage of justice, or constitutes a substantial violation of constitutional or statutory right.</p>

<p>(Sylla'ffus.)</p> <p>1. Oil and Gas — Lease — Extension of Lessee’s Rights — Conditions Precedent.</p> <p>Where an oil and gas lease contains a provision that it shall be operative for the period of five years from date, or so long as gas, oil, or other minerals are found thereon in paying quantities in, under, and upon said land, it is a condition precedent to- the extension of lessee’s right to continue operations beyond the five years that oil and gas or either of them should be found upon the premises in paying quantities within five years from the date of the lease,</p> <p>2. Same — Oil and Gas Lease — Extension.</p> <p>After gas was found upon the leased, premises within five years from the date there, f in paying quantities the lessee thereby became vested with a limited estate in the leased premises for further operations in ace rdance with the terms of the lease.</p> <p>3. Same — Loss of Lessee’s Rights</p> <p>Such right, once vested by discovery of gas in an upper sand, will not be lost if the lessee continues to drill deeper in search of oil or gas in a lower sand, although he does not find oil or gas in the lower sand within the limitations prescribed by the lease. But, if oil or gas be not found in the lower sand, production from the upper sand could not be deferred without incurring the penalty of abandonment or forfeiture if forfeiture be prescribed.</p>

<p>Original proceeding in the Supreme Court by the Grievance Committee of the Oklahoma State Bar Association for the disbarment of J. C. Evans.</p>

Error from District Court, Okmulgee County; Chas. G. Watts, Judge. Action by E. W. Kimbley, Frank King, Frank Sheedy, and W. R. Alexander against Floyd Luckey and Louis Luckey. From the judgment sustaining a demurrer to plaintiffs’ petition and dismissing their action, pjlaintiffs bring error.

Error from District Court, Garvin County; P. B. Swank, Judge. Action by the Union Central Life Insurance Company against Joe Parris and another to foreclose a mortgage. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>Constitutional Law — Taxation — Indian Lands — Exemptions—Vested Rights.</p> <p>The homestead allotment of a Creek freedman, title being in the allottee, is exempt from taxation by the state for a period of 21 years, this exemption being a vested right under Act Cong. June 30, 1902, known as the Supplemental Agreement, and protected by the federal Constitution from abrogation during that period.</p>

<p>(Syllabus.)</p> <p>Commerce — Regulation by State Corporation Commission — Grain Elevators.</p> <p>By reason of the provisions of the Congressional Act regulating interstate commerce (U. S. Comp. St. § 8563), the Corporation Commission is without jurisdiction to require a railway company to designate a point on its right -of way for the location of a portable grain elevator and to spot cars thereto for interstate shipments, when the effect of such order is to obstruct .interstate commerce by materially interfering with the movement of cars to and from elevators permanently located near the right of way. and with the loading of cars on the right of way by track shippers.</p>

Appeal by the Chicago, Rock Island & Pacific Railway Company from an order of the Corporation Commission requiring the company to construct a modern fireproof depot within the city limits of Sayre.

<p>Error from District Court, Wagoner County ; R. C. Allen, Judge.</p> <p>Action by John R. Thomas and another against the Oklahoma Land Company and another. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by I. S. Barner against the Ard-more Oil & Milling Company for damages. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>Municipal Corporations — Public Contracts — Necessity of Bond — Liability of Officials.</p> <p>One who sells material to a public contractor is charged with knowledge of the statutory duty of the contractor to give a bond as required by section 3881, Rev. Laws 1910, and to have the same filed with the clerk of the district court, as required by section 3882 of said laws, and when such contractor gives a bond that is neither conditional as required by said section 3881, supra, nor filed with the clerk of the district court, as required by section 3882, supra, a material-man who sells such contractor material, which goes into the construction of the public improvement contracted for, is not entitled to recover damages from the individual oflieers who failed to secure and have filed the bond as provided by the provisions of said sections.</p>

Error from Dist.'ict Court, Nowata County; W. J. Campbell, Judge. Action between Lizzie Alberty and An-ri ew Alberty f r the allotment of a deceased minor child. A decree was rendered, giving each of 'the parties a one-half undivided interest, and Lizzie Alberty brings error.

<p>Error from District Court, Major County ; J. C. Robberts, Judge.</p> <p>Action by A. A. Roe, as administrator of C.W. Rue, deceased, against the Kansas City, Mexico & Orient Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Okmulgfet-County; Chas. G. Walts, Judge. Suit by the Guaranty State Bank of Ok-mulgee against B. M. Pratt and others. Judgment for defendants, and plaintiff brings error.

<p>.[Syllabus.)</p> <p>1. Landlord and Tenant — Unlawful Detain-er — Issues—Possession.</p> <p>In an unlawful detainer action, the question at issue, regardless of the actual condition of the title to the property, is whether the defendant unlawfully withholds possession from the plaintiff.</p> <p>2. Same — Evidence—Admissibility,</p> <p>The defendant in an unlawful detainer action under a general denial is entitled to introduce any evidence which controverts any fact the plaintiff is bound to prove in order to recover..</p> <p>3. Same.</p> <p>Where a defendant in an unlawful de-tainer action- defends on the ground that he is the agent for a corporation and that said corporation is lawfully in possession of the premises under a contract with the plaintiff, and that he is merely holding the possession as agent for said corporation, it is prejudicial error for the court to exclude evidence which, if true, proves such defense.</p> <p>4. Same.</p> <p>Where a tenant lawfully goes into possession of premises under a contract with the plaintiff he may show that he has continued in possession after the expiration of his lease under a new agreement with his landlord.</p>

<p>Error from District Court, Jefferson County ; Cham Jones, Judge.</p> <p>Action by W. D. Davis against Dick Coleman to recover land. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by L. W. Simerly against the Missouri, Kansas & Texas Railway Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Okfuskee County; Geo. C. Crump, Judge.</p> <p>Action by Annie King against Leroy E. Shults and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Logan County; John P. Hickam, Judge. Proceeding by the State for the forfeiture of an automobile as having been used in the unlawful transportation of intoxicating liquor, in which Ofa Brown appeared specially and filed a plea to the jurisdiction. Judgment for the State, and the intervener brings error.

<p>('Syllabus.)</p> <p>1. Indians — Title to Town Lots — Occupation.</p> <p>The preferential right to acquire title to town lots in the Creek Nation was by the original Creek Agreement of March 1, 1901, c. 676, 31 Stat. S61, conferred upon the person in the rightful occupation of said lots.</p> <p>2. Same — Sights of Residuary Legatee— Res Judicata.</p> <p>The title acquired by the son of a testator to towln lots by the exercise of his preferential night under the original Creek Treaty will not be impressed with a trust in favor of the residuary legatee, where the lots were scheduled to and the appraised value thereof paid by the son, and where in litigation thereafter, in the settlement of the estate of the testator, a stipulation was entered into whereby the son should pay the executor, who was also the residuary legatee, the original purchase price of the improvements on said lots, which sum was paid to the executor in accordance with said agreement, and a judgment was rendered upon said stipulation, decreeing said son to be the owner of said lots and improvements thereon.</p>

Error from County Court, Stephens County ; J. W. Marshall, Judge. Action by J. H. Hickey, and E. Medford, doing business under the firm name and style of the Central Electric Company, against the Duncan Electric & Ice Company. Judgment for plaintiffs, and defendant brings error.

<p>(Syllabus.)</p> <p>1, Injunction — Suit on Bond — Validity of Injunction — Defense.</p> <p>Defendants are estopped in a suit on an injunction bond to set up as a defense that the injunction was void because it Issued prior to the issuance and service of summons in the action.</p> <p>'2. Injunction — Motions to Dissolve Injunction — Dismissal' of Cause.</p> <p>When the only relief sought in an action is an injunction, the court has jurisdiction, upon a motion to dissolve the injunction, to dismiss the cause.</p> <p>3. Conversion — .“Conversion.”</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>4. Injunction — Liability on Bondi — Measure • of Damages — Restraining Harvesting Ci‘op.</p> <p>Where M., by injunction wrongfully issued, prevented P. from harvesting his growing wheat, and converted the same to her own use, the measure of damages (under section 2875, R. L. 1910, the action prosecuted with reasonable diligence), and the liability on the bond, was the highest market value of the wheat at any time' between the' conversion and the verdict.</p> <p>:5. Injunction — Dissolution of Injunction— Attorney’s Fees.</p> <p>Upon evidence of services rendered by plaintiff’s attorney in securing a dissolution of an! injunction, in an action where the only relief sought was an injunction and the court upon motion to dissolve the injunction dismissed the cause of action, the jury was authorized to fix $25 as a reasonable sum for such services.</p> <p>'6. Evidence — Expert Testimony — Value of Legal Services.</p> <p>■ Expert, testimony as to the value of legal services rendered is not necessary, when there is evidence of the services rendered, the character of the litigation, and results obtained sufficient to form a basis for determining the value óf such services.</p>

Error from District Court, Comanche County; Cham Jones, Judge. Action by I. E. Carr against the First State Bank of Indiahoma. Verdict and judgment for plaintiff, motion for new trial overruled, and defendant brings error.

<p>(Syllabus.)</p> <p>Action — Premature Action.</p> <p>M. and W. agreed to furnish equal sums of money and purchase a tract of land, designated as tract No. 131 of the segregated coal lands of the Choctaw and Chickasaw Nations to- be sold by the Department of the Interior. The land was to be purchased in the name of W., for the joint use and benefit of M. and W., and on dema-d thereafter W. was to convey to M. a half interest therein, as might be agreed upon between them. M. and W. furnished equally, share and share alike, 25 per centum of the pu.-chase price and after the purchase, M. and W. divided the land between them, M. taking the west half and W. the east half. Certificate was issued to W.; thereupon M. demanded that W. execute to him a deed for the west half of the land so purchased. Upon refusal. M. instituted action for specific performance. Held, the action was prematurely brought, the title to the land not having passed to W. by virtue of the certificate of purchase, 'and W. not being entitled to the patent until the conditions and terms of the sale were fully complied with.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by Mary Ellen Day and another against the Keeehi Oil & Gas Company and others. Judgment for defendants, motion for new trial denied, and plaintiffs bring error.

Error from County Court, Beckham County ; E. G. McOomas, Judge. Action by A. M. R'obison against the St: Paul Eire & Marine Insurance Company of ■S-t. Paul, Minn., with counterclaim by defendant. Judgment for plaintiff and for cancellation of his proniisspry note,-, and defendant brings ' error.

Error from District Court, Murray County ; F. B. Swank, Judge. Suit for injunction by Hugh Rogers against H. H. Deskins and others. Temporary injunction made permanent, motion for new erial denied, and defendants bring error.

<p>Appeal from District Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Claims before the Board of County Commissioners of Okmulgee County by Riley Cleveland, as County Judge, and by other county •officers, for salaries. Cases consolir dated in district court, on County Attorney’s appeal from an order allowing claims, and from an affirmance of - the order and a dismissal of appeal the County Attorney appeals.</p>

Error from District Court, Lincoln County ; Chas. B. Wilson, ,Tr., Judge. Action by Lucy S. Saylor against the Magnolia Petroleum Company, a joint-stock association, and the Corsicana Petroleum Company. Judgment for plaintiff and defendants bring error.

<p>Error from District Court, Payne County; James B. Gullison, Judge.</p> <p>Action by H. E. Grove against Ray Thompson and others. Verdict and.judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Blaine County; Thos. A. Edwards, Judge. Action by the First Bank of Hitchcock against M. S. Chaplin and Frank Oronkhite. Judgment .for plaintiff against defendant Oronkhite by default, and against defendant Ohaplin, motion by defendant Ohaplin to set aside judgment overruled, and he brings error.

<p>Error from District Court, Oklahoma County; Jno. W. Hayson, Judge.</p> <p>Action for injunction by Ed Boyle, Chief Mine Inspector of Oklahoma, against J. E. Love and others, as the Corporation Commission of the 'State of Oklahoma, and A. L. Walker, as Chief Conservation Agent. Demurrer to petition overruled, and judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Chattel Mortgages — Existence of Prior lien — Question for Jury.</p> <p>In a suit for conversion by a mortgagee whose mortgage was prior as to date, but wag not witnessed or acknowledged, but filed in the office of the county clerk, against a mortgagee who sold the property covered by the mortgages and applied the proceeds of the sale upon the debt secured by his mortgage, and where the holder of such junior mortgage saw and read the senior mortgage in the office of the county clerk, but pursued his investigations no further, but deemed said senior mortgage void for want of subscribing witnesses or proper acknowledgment, and proceeded to take his mortgage and have the same properly executed and- filed for record, and, when default was made by the mortgagor, sold the property and applied the proceeds as aforesaid, evidence held to make questions for the jury as to whether the holder of the junior mortgage was not put upon inquiry and would not have learned of the prior mortgagee’s lien by investigation, and the trial court erred in instructing a verdict.</p> <p>2. Same — Mortgage Not Filed — Validity as to Subsequent Mortgage — Statute.</p> <p>Oomp. Laws Okla. 1909, § 4422, provided that a mortgage of personal property was void As against creditors and subsequent purchasers and incumbrancers in good faith for value, unless the original or an authenticated copy was filed as therein required. Rev. La|w.s Okla. 1910, § 4031, contains a similar provision, except that the words “in good faith” are omitted; but a further provision of .such section, relating to mortgages on property in an unorganized county, makes such mortgages void against subsequent purchasers or incumbrancers in good faith for value, unless filed. Section 4035 provides that a chattel mortgage shall cease to be valid as against subsequent purchasers or incumbrancers in good faith after the expiration of three years, unless a renewal certificate is filed. Held, that the Legislature did not intend to make an unfiled mortgage invalid as against a purchaser for value; but, having notice of the mortgage, used the words “purchasers, and incumbrancers '* * * for value” in the first part of the section in the same sense as the words “purchaser, or incumbrancers * * * in good faith for value” in the last part of the section.</p> <p>3.Statutes — Construction — Other Statutes —Remedy—Consequences.</p> <p>To ascertain the intention ¡of the Legislature in the enactment of the statute, the court may look to each part of the statute, to other statutes upon the same or relative subjects, to the evils and mischiefs to be remedied, and to the natural or absurd consequences of any particular interpretation.</p>

<p>(SyllaDus.)</p> <p>Mandamus — Judge’s Certification of Disqualification — Proof.</p> <p>In order to disqualify a district judge and compel him by mandamus to certify that he is disqualified, on account of bias and prejudice, to proceed to the trial of a cause pending before him, the applicant must show a clear, legal right to the writ; otherwise such •application will be denied.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Action by R. P. Bowles against W. D. Coleman, revived in the name of Ella L. Coleman, his adminstratrix. Judgment for plaintiff on review of testimony before referee, and defendant brings error.

Error from Superior Court, Oklahoma County; John W. Hayson, Judge. Suit by George D. McLean against the Western Casualty & Guaranty Insurance Company. Judgment for plaintiff on a directed verdict, motion for new trial overruled. and defendant appeals.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action to quiet title by Ethel D. Cawdell against C. B. Clark and others. Judgment for plaintiff!, motion for new trial overruled, and defendants bring error.</p>