Volume 73 — Oklahoma Reports

<p>Error from District Court, Lincoln County: Chas. B. Wilson, Jr., Judge.</p> <p>Action by Willie Hines against W. Y. Yeldell. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Instructions — Review — Absence of Request.</p> <p>. Where the trial court in its charge,to the jury correctly defines the duty of the jury as to the issues involved, a cause will not be reversed for failure to charge upon specific theories of defense claimed to arise from the evidence, in the absence of requested instructions as to such theories of defense.</p> <p>2. Trial — Instructions—Issues.</p> <p>In a damage suit against a railway company, where the answer consists of a general denial and a plea of contributory negligence, there being no plea of fraud, the defendant is not entitled to an instruction upon a theory that the plaintiff fraudulently caused an injury to himself for the purpose of lodging an action against the r.ailway company.</p> <p>3. Carriers — Railway Mail Clerks — 'Relation to Carrier — “Passenger.”</p> <p>A United States railway mail clerk, traveling in a railway mail car and engaged in the performance of his duties as such clerk, stands in the relation of a “passenger” to the railway company, and the company owes to such mail clerk so engaged the same degree of care owed to regular passengers.</p> <p>4. Carriers — Personal Injuries — Evidence.</p> <p>Where the plaintiff brings suit against a railway company for the loss of an eye resulting from an injury caused by the alleged negligence of such railway company, and there are facts in evidence from which the jury may reasonably find that the injury caused the loss of the eye, it is not necessary, in order to sustain a verdict for the plaintiff, to prove by expert testimony that the infection necessitating the removal of the eye was caused by the injury; there being other evidence from which the jury may reasonably infer such fact.</p> <p>5. Damages — Mitigation.</p> <p>The burden is upon the railway company, in an action against it for damages for, personal injury, to show that the plaintiff’s damages could have been reduced or minimized by the use of ordinary care on his part, and, in the absence of evidence showing that the damages caused by the negligence of the railway company were augmented because of the failure of the plaintiff to use ordinary care to minimize the same, the defendant is not entitled to an instruction as ,to plaintiff’s duty to use ordinary care to minimize the damages.</p> <p>6. Damages — Personal'Injury—Extent.</p> <p>A verdict for $3,000 as damages for the total loss of an eye by a young man engaged as a railway mail clerk, under the evidence in the instant ease is not excessive.</p> <p>(Syllabus by Stewart, O.)</p>

<p>Damages —■ Damage to Realty — Measure— Abatable Cause of Injury.</p> <p>Where a cause of injury is abatable either by expenditure of labor or money, the same is not permanent, and the owner is entitled to recover therefor only such damages as has accrued on account of the impaired lost use of his property up to the time of the commencement of the action, and the measure of value of the real estate before and after said injury is not the true measure of damage.</p> <p>(Syllabus by Hooker, G.)</p>

Error from District Court, Latimer County; W. H. Drown, Judge. Action by Layson Jefferson, a minor, by his next friend and legal guardian, B. B. Bronson, against the Southern Surety Company and W. C. Allen, with cross-petition by the company. Judgment against the company, its motion for a new trial overruled, and it brings error.

<p>Error from District Court, Greer County; R. W. Higgins, Assigned Judge.</p> <p>Action by Sun Set Field against the City of Mangum. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error- — Trial After Remand— Evidence — Instruction. •</p> <p>Where upon a former appeal the evidence is examined -and held to fairly support the allegation of the petition to the effect that the defendants jointly and severally verbally promised to -pay for lumber furnished the contractor for the purpose of constructing certain buildings, and that said contract was not affected by the second subdivision of the statute of fraud (section 941, Rev. Laws 1910), held that upon a retrial of said cause it is not error for the court to instruct the jury that if they ¡believed from- the evidence that defendants -agreed to pay plaintiffs the debt sued on, they would -be liable; and, if they had not so agreed to pay it, then they were not liable.</p> <p>2. Trial — Instruction.</p> <p>That it is not error for the court to refuse to instruct the jury that, in order to establish the liability of the defendants for material furnished, previous to thie ¡time plaintiffs alleged the agreement mías made, it was necessary for the plaintiff to- show that the defendants -agreed to pay for same as a part of the consideration of plaintiff furnishing the material necessary to complete the building; the court having instructed them that they must find that plaintiffs had agreed to pay foil all material furnished thereafter and for all material furnished theretofore, which remained unpaid before they could find for plaintiffs.</p> <p>8. Estoppel — Payment of Debt of Another —Evidence.</p> <p>Where B. Lumber Company sued A. and Z. upon an oral promise to pay for lumber furnished' the contractor erecting store buildings for A. and Z., part of w-hich had been furnished prior to the time of the promise, and the evidence of plaintiff shows' that at the time of the promise upon which plaintiff’s suit is based that the defendants admitted that they had in their possession $1,300, an amount in excess of that claimed by plaintiff, held, that it was not error to refuse to allow defendants to prove that the cost of the buildings greatly exceeded the contract price, and that the full contract price had been paid and the pro rata part due the lumber company had been paid to it, and that there was no funds in the hands of A, and Z. due to the contract price.</p> <p>(Syllabus by West, C.)</p>

<p>Error from District Court, Sequoyah County; John H. Pitchford, Judge.</p> <p>Action by John E. Mayo against Stand McCoy, Maud Young, nee Sutteer, and James Daugherty. Demurrer to the answer of defendant James Daugherty sustained, and answers of defendants Maud Young and Stand McCoy stricken, and a default judgment entered against them, their motions to be permitted to file an answer out of time and for a new trial overruled, and defendants bring error.</p>

<p>Error from County Court, Comanche County ; R. J. Ray, Judge.</p> <p>Action by the Paynter-McYicker Grocery Company against the Baker-Hanna-Blake Company, Dona Hinson, and another. Judgment for plaintiff in justice court and from a judgment of the county court, on appeal, in favor of plaintiff, and from the overruling of a motion for a new trial, the Baker-Hanna-Blake Company brings error.</p>

<p>1. Sales — Warranty.</p> <p>An affirmation in regard to an existing fact, distinctly and positively made in the negotiations for trade, should be regarded as a contract, and enforced as a warranty.</p> <p>2. Fraud — Statement of Fact — Knowledge of Seller.</p> <p>In an action for a breach of warranty, it is error for the trial court to instruct the jury that, unless you find from the evidence in this case that the defendant knew that the hogs were infected, or by the exercise of reasonable care could have discovered the condition of the hogs, then your verdict should be against the plaintiff, although at the time of the sale the defendant made representations, as claimed by the plaintiff, that the hogs were free from disease, but as a matter of fact, they were infected with cholera.</p> <p>If you further believe from the evidence that the plaintiff in this case had sufficient knowledge of the condition of the hogs to have placed him upon inquiry, and by reasonable diligence on his part he could have determined that the hogs were infected with cholera, then and in that event your verdict should be for thei defendant.</p>

<p>Principal and Agent — Evidence of Agency —Sufficiency.</p> <p>The evidence in this case examined, and held insufficient to sustain-the judgment of the trial court.</p> <p>(Syllabus by Pryor, C.)</p>

Error from District Court, Lincoln County; Chas., B....Wilson;. Jr., Judge. ' Action by Charles A. Tilghman against A. L. Mills, receiver for Ft. Smith & Western Railroad Company. From a judgment for plaintiff, on appeal from a judgment of the justice court, defendant brings error.

Error from County Court, Canadian County ; R. B. Forrest, Judge. Proceeding by the State against one Ford Automobile in the possession of C. 0. Sanford on the public highway in section 3, township- 10, range 7 W. I. M., Canadian county; V. L. Nesbitt,, intervener. Motion of intervener to dismiss the proceedings, for want of jurisdiction sustained, and plaintiff brings error.

<p>1. Pleading — Cause of Action — Several Counts.</p> <p>Where a party has two or more distinct and separate reasons for the obtainment of the relief he asks, and where there is some uncertainty as to the grounds of recovery, the complaint may set forth a single claim, or ask for the same relief in several distinct counts or statements.</p> <p>2. Evidence — Parol Evidence — Memorandum of Contract.</p> <p>. A memorandum relied upon by the plaintiffs in error as a written contract examined, and held insufficient to constitute a contract, so as to preclude the right of recovery in this action to the defendants in error.</p> <p>(Syllabus by Hooker, C.)</p>

<p>Error from County Court, Atoka County; M. C. Hailey, Judge.</p> <p>Action by the Caylor Lumber Company against A. B. Mays and Hattie G. Mays. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>Replevin by Schuyler C. French against M. C. Brown.and wife, and Mrs. E. B. Davis. with answer only by defendant Davis. Judgment for defendant Davis for the return of the property or its value, with damages for its wrongful detention, and plaintiff brings error.</p>

Error from District Court, Nowata County; W. J. Campbell, Judge. Action by M.. L. Melson against Thomas T. Gray, in which Willie Sanders filed an answer and cross-petition for the benefit of defendant. Judgment for plaintiff, and defendants bring error.

Error from District Court, Grady County; Will Linn, Judge, Action by A. A. Holmes against O. W. Harper and G. 0. Kesey. There was judgmeut in justice’s court for plaintiff, and from a judgment of the district court, oil appeal, in favor of defendants, plaintiff brings error.

Error from District Court, Harper Coun. ty; W. C. Crolw, Judge. Replevin by the Bank of Buffalo against R. L. Crouch. Judgment for plaintiff, allowing certain amounts on defendant’s counterclaim, and plaintiff brings error.

<p>Error from County Court, Washita County; L. R. Shean, Judge.</p> <p>Action by the State of Oklahoma against W. A. Emery. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Appeal and Error — Second Trial — Law of 'Case.</p> <p>The law as held in a former appeal of the case becomes the law of the ease.</p> <p>2. Carriers — Interstate Shipment — Action for Damages.</p> <p>In the case of an interstate! shipment of cattle, a provision in the contract of carriage, fixing 91 days as time in which action must be brought for damages for a breach of the contract, is legal and binding, and where an action for breach of said contract is brought after the expiration of 91 days the action is barred.</p> <p>3. Same.</p> <p>Where there is a provision in an interstate contract of shipment of cattle, fixing a time within which action must be brought thereon, the time begins to run from the date of delivery of the cattle at their destination.</p> <p>4. Same — Shipment of Cattle — Dipping;</p> <p>Under an interstate contract of shipment of cattle', dipping of the cattle is covered in the contract of carriage, and such dipping is not a proper subject of a separate contract.</p> <p>5. Appeal and Error — Harmless Error.</p> <p>Where it clearly appears that the cause of action is barred by limitation, and the trial court properly sustained such defense, errors, if any, occurring in the trial, are without prejudice.</p> <p>(Syllabus by Collier, C.)</p>

Error from County Court, Comanche County; R. J. Ray, Judge. Action by the Lawton Grain Company against James W. Lusk and others as receiv-•ei'S of the St. Louis & San Francisco Railroad Company, a corporation. Judgment for plaintiff, and defendants brings error.

<p>1. Fraudulent Conveyances — Conveyances by Creditor — Validity—Statute.</p> <p>Under the first part of section 1174, Rev. Laws 1910, any conveyance of real estate made without a fair and valuable consideration is void a® against all parties to whom the maker of the conveyance is at .the time indebted or under any legal liability, irrespective of the question of fraudulent intent.</p> <p>2. Appeal and Error — Judgment—Reversal.</p> <p>If one. having a deed from the debtor to lands attached for the obligation of such debtor, files a plea, in the attachment proceedings against the debtor setting up title to the lands under the deed and asking for an adjudication of such.title as against the lien of the attaching creditor, judgment of the trial court, at a hearing, duly had on such plea, supported by competent evidence, holding that such deed is void as to creditors of the debtor and that the attachment lien is superior to any title thus acquired, will not he disturbed ou appeal, in the absence of other error, duly assigned, and held to b'e prejudicial.</p> <p>(Syllabus by Stewart, C.)</p>

<p>1. Insurance — Grand Lodge — Subordinate Lodges — Agency.</p> <p>Where, as- a part of the general plan of organization, the Grand Lodge authorizes the organization of subordinate lodges for the parpóse of facilitating organization, and caring for its members and through which it collects assessments and taxes and confers upon it the authority to enact its own constitution and by-laws, which becomes a member of the Grand Lodge after thus organizing, held, that in its dealings with members the subordinate lodge is the agent of the Grand Lodge.</p> <p>2. Same — Action on Policy — Estoppel of Grand Lodge.</p> <p>When the constitution and by-laws of a lodge provide a sick benefit for its disabled members, and further provide that all assessments and taxes shall be deducted from such sick benefits and the remainder paid to the member, and where at a meeting the lodge takes action and provides for the payment to a member ’afflicted with tuberculosis the sum of $1.50 per week, which is in excess of the assessments and taxes due the Grand Lodge, and such sick member is by the secretary of the lodge led to believe that her assessments and taxes are being kept paid, held, that in an action on the policy the Grand Lodge is estopped to deny the member was in'good standing.</p> <p>3. Same — Default of Member — Forfeiture— Notice.</p> <p>Where the constitution and by-laws of a lodge provide that in case of default of its members in the payment of their assessments and taxes a notice shall be given, specifying the time after which the member shall stand suspended or expelled, held, that the giving of such notice is a condition precedent to the right of forfeiture, and that forfeiture does not attach until after the time specified in the notice h^g expired.</p> <p>4. Same — Action on Policy — Payment of Burial Expenses.</p> <p>Where a life insurance policy, in addition to the amount to be paid the beneficiary, provides for the payment -of the sum of $50 burial expenses, and the beneficiary has contracted and becomeliable for the payment of the burial expenses, such beneficiary may maintain an action for such expenses.</p> <p>(Syllabus by Springer, O.)</p>

Error from County Court, Tillman County; W. C. Luckenbill, Judge. Action of forcible detainer by J. W. Alexander and another against C. W. Howard and another. From a judgment of the county court in favor of defendants, on appeal from a judgment of a justice court, plaintiffs bring error.

Error from District Court, Lincoln County; Tom D. McKeown, Assigned Judge. Action by Mrs. America P. McLain for damages for the death of her son, James E, McLain, against George E. Arnold and the-National Surety Company. Judgment for the defendants, and plaintiff brings error.

<p>1. Courts — Probate Courts — Duress—Sufficiency.</p> <p>The orders and decrees of the probate court are not required to recite the existence of facts or' the performance of acts upon which its jurisdiction depends, and the failure to recite such jurisdiction does not raise a presumption thatk such facts do not exist.</p> <p>2. Wills — Admission to Probate — Collateral Attack.</p> <p>The order -of a county court admitting a will to probate -being fair and valid, and no fraud -being shown, the same cannot be collaterally attacked.</p> <p>3. Wills — Contest—Time for Instituting.</p> <p>Under section 6219, Rev. Laws 1910. a will may be contested at the probate thereof; but, if one is prevented by disability from filing such contest within said time, the. same may be instituted within one year after the disability is removed by virtue of section 6225, Rev. Laws 1910, and if not filed within the" time designated by these sections of the statute the right to do so is lost.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, BryaD County ; Jesse M. Hatchett, Judge. Suits by R. P. Dickey, trustee in bankruptcy of the estate of Stephens Bros., and Stewart, bankrupts, against the Springfield Fire & Marine Insurance Company and the Phoenix Insurance Company. Causes consolidated and judgment rendered for plaintiff, motion for new trial overruled, and defendants bring error.

<p>Error from District Court, Pittsburg County ; Chas. G. Watts, Judge.</p> <p>Action by John C. Wilson against the First National Bank of Canadian. After action brought, on death of plaintiff, the cause was revived in name of his administrator, R. P. Brewer. Judgment for plaintiff, and defendant brings error.</p>

Emir from District Court, Creek County; Wade S. Stanfield, Judge. Action by Susie Tiger Malone and others against Peer Scott and others. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court, Grant County; W. M. Bowles, Judge.</p> <p>Action by the Consolidated School District No. 3 of Grant County against Low Dorvage, County Superintendent of Public Instruction of Grant County, and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Wagoner County ; Ernest B. Hughes, Judge.</p> <p>Action by Isaac Stauffer against Charles G. Watts. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Johnston County; J. H. Linebaugh, Judge.</p> <p>Action by Florence Whitehead against the Federal Life Insurance Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Judgment — Motion for New Trial — Unavoidable Casualty — Vacation—Time for Filing.</p> <p>On March 3, 1916, J. W. S. and L. J. S. obtained a judgment -against A. B. L. A. in the absence of the attorney representing defendant ; all of the evidence had .been taken and argument had prior thereto. A. B. L. A. did not learn of the action of the, court until March 18, 1916. Held, that A. B. L. A. was not deprived of its right of appeal in error by the action of the court in rendering judgment in the absence of its attorneys, but that upon discovery of said action it had a right to file a motion for, a new trial under section 5035, Rev. Laves 1910. and have the same considered ¡by the court. From the ruling of the court on said motion it had a right to appeal- by petition in error to the Supreme Court of Oklahoma and have the same reviewed.</p> <p>(Syllabus by Davis, O.)</p>

<p>Error from District Court, Carter County ; W. F. Freeman, Judge.</p> <p>Action by the Jesse French Piano & Organ Company against J. A. Bodovitz. There was judgment for the defendant, and plaintiff appeals.</p>

Error from District Court, Okmulgee County; Chas. G.. Watts, Judge. Action to quiet title by Richard L. Morton and others against Gum Bros. Company, a corporation, and others. Judgment for plaintiffs, motion for new trial overruled, and defendants bring error.

<p>Error from District Court, Tillman County; Frank Mathews, Judge.</p> <p>Action by J. -C. Hunt against O. F. Barnes and William Hoover. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Carter Coun-’ ty; W. F. Freeman, Judge.</p> <p>Action by Emery Brothers against the Mutual Benefit Oil ’Company. Judgment for defendant, and plaintiff brings error.</p>

<p>‘ Error from District -Court, Garvin County ; F. B. Swank, Judge.</p> <p>Action by Harold L. Waide, a minor, agains-t the F. B. Collins Investment Company, a corporation, and others. Judgment for plaintiff, and defendants, the F. B. Collins Investment Company, a corporation, the Home Savings & State Bank, a corporation, and| Georgia H. Lord, bring error.</p>

Error from District Court, Roger Mills County; T. p. Clay, Judge. Action by Pinley P. Mount, receiver of the M. Rumely Company, against R. L. Trammel and others. Judgment for defendants, and plaintiff brings error.

<p>1. Cemeteries — Acquisition of Lands — Powers of City.</p> <p>The power granted by a city charter to- the municipality, empowering the purchase of grounds for cemetery purposes outside the city limits, is not inconsistent with the power granted to municipalities generally, by a public statute, empowering the purchase of lands for cemetery purposes within the city limits.</p> <p>2. Appeal and Error — Review of Evidence.</p> <p>In all actions which were cognizable only in a court of chancery, it is the duty of this court to consider the whole record, and weigh the evidence, and when the judgment of the trial court is clearly against the weight of the evidence, render, or cause to be rendered, such judgment as the trial court should have rendered.</p> <p>3. Injunction — Adequate Relief at Law.</p> <p>A. purchased property, built his home, and sunk a water’ well on property adjacent to an established cemetery, owned and controlled by a city, within the corporate limits of the municipality; later, when the municipal authorities purchased adjoining property for the purpose of extending the cemetery grounds and improving the same, bringing the burying grounds 100 feet nearer to A.’s premises, A. sought to- enjoin the city’s use of the purchased premises on the ground of want of power in the municipality to purchase the -land for such use, and that such use would work irreparable injury to him, inasmuch as it would result in rendering the water in his well unfit for domestic purposes. Held, that under the facts set out in the opinion no grounds for injunctive relief were shown, and such relief should have been denied, and, further, that the injury threatened was easily calculable in dollars and cents, and full compensation might be rendered therefor in a legal action for damages.</p> <p>(Syllabus by Galbraith, 0.)</p>

<p>Error from District Court, Muskogee County.</p> <p>Action by W. Y. McLemore and another against the Midland Valley Railroad Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Indians — Powers, of Guardian — Less of Ward’s Land.</p> <p>• The'control" of a guardian over the estate of his vaiu, as set out in sections 6544 and 6569, Rev. Laws 1910, dees not authorize the guardian of an Indian minor to make a grazing lease of his wjard’s allotment, for a term of three years, without the express approval or authorization of the county court so to do. Bailey v. King et al., 57 Okla. 528, 157 Pae. 763, holding to the contrary, is exnressly overruled.</p> <p>(Syllabus by Galbraith, O.)</p>

Error from District Court, Jacks.on County ; Will Linn, Judge. . , Action by George O. Turner and wife against W. E. Sanderson and another. From a judgment for plaintiffs, defendants bring! error.

<p>Fixtures — Chattel Mortgages — Lien—Priorities.</p> <p>Where ginning machinery is sold under agreement between the vendor and vendee that the vendee give notes in payment thereof secured by chattel mortgage on said machinery, and • that said machinery shall not be annexed to or 'become a part of any ■realty until the purchase price is fully paid, and the notes and mortgage are executed and delivered, and the vendee places tlu> machinery in a cotton gin on the premises, which is covered by a real estate mortgage, and the evidence shows -that the machinery may be removed from the premises without Injury to the same, the holder of. the chattel mortgage does not lose his lien on the machinery as security for the payment of the purchase price. . . : . .. )</p> <p>(Syllabus by Pryor, C.)</p>

Error from District Court, Caddo County; Will Linn, Judge. Action :by T. W- Brown against J. J. Walker. Judgment for defendant before a justice was affirmed on appeal to district court, and plaintiff brings error.

Error fiv m County Court, Comanche County; R. J. Ray, Judge. Action by M. M. Meadows against J. D. Neal and C. F. McCarty. Judgment for defendants. On appeal to the county court, on a trial, judgment was rendeied for defendants, and plaintiff brings error.

Error from District Court, Oklahoma County; Edward. De-wes Oldfield, Judge. ' Action by tbe 'State, on tbe relation of Cbas. B. Selby, County Attorney, against T. A. Hoover, to enjoin the operation of a dance hall. Judgment for plaintiff, and defendant brings error.

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by J. T. Murray against S. L. Bris-tow. Judgment for defendant, and plaintiff brings error.</p>

<p>Evidence — Judicial Notice — Laws of Creek Nation.</p> <p>The state courts do not take judicial notice of the laws of the Creek Nation. One seeking to enforce -a right existing under and by virtue of such laws must plead and prove the lajv relied on.</p> <p>(Syllabus by Pryor, C.)</p>

<p>Error from Distrht Court. Tillman County; John TV. Hayson, Assigned Judge.-</p> <p>Objections by the Wheeler & Motter Mercantile Company, purchaser from trustee in bankruptcy of Miller Bros., incorporated, to the confirmation of a foreclosure sale in ease of Interstate Mortgage Trust Company against Miller Bros., a corporation, and its trustee in bankruptcy, to Bettie Miller. Sale confirmed, and the objector appeals.</p>

<p>Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.</p> <p>Action by Gustave Paprotta against the Creek Coal Mining Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Actions by Víctor V. Thorp, by his mother and next friend, Martha C. Nigel, and by Martha O. Nigel, for herself, against the St. Louis & San Francisco Railroad Company and the Stroud Cotton Oil Company. Judgment in favor of the Stroud Cotton Oil Company, and for the Railroad on a directed verdict, and plaintiffs bring error.

Error from District Court, Garfield County ; James B. Oullison, Judge. Action by Arlie Carter against D. J. Hos-tettler, Ralph Wicker, and John Burns. Judgment for plaintiff, motion for new trial denied, and defendants Hostettler and Wicker bring error.

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by the Kinnard-Haines Company against D. j. Dillingham. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by the State, on the relation of Charles ¡B. Selby, County Attorney, against Billy Gragg and others. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Okmulgee County; Ernest B. Hughes, Judge.</p> <p>Action -by Charles Crow against Edmond Hardridge and others. Judgment for defendants, and plaintiff brings error.</p>

Error from County Court; Seminole County; D. 6. Hart, Judge. Suit by the Ince Nursery Company against Y., E. Sams and others. Judgment for plaintiff upon its first cause of action, and in favor of defendants on the second cause of action, and the plaintiff brings error.

<p>Error from District Court, Oklahoma County; Edward Dewes Uidfieid, Judge.</p> <p>Action by H. C. Olds, administrator of M. M. Meek, against the Atchison, Topeka & Santa Fe Railway Company. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court, Stephens County; Cham Jones, Judge.</p> <p>Action by J. L. Markham against Richard Ward. Judgment for plaintiff before a justice and judgment for same party on appeal to the district court, and plaintiff brings error.</p>

Error from Superior Court, Muskog( o County; H. C. Thurman, Judge. Plaintiff, C. P. Zweigart, obtained judgment fpreclosing mortgage on real estate against defendants, Kent Strahan and Maud Strahan, and afterwards and before sale of the mortgaged property procured the issuance of a general execxition which being returned unsatisfied, the plaintiff attempted to take money ef defendants by garnishment. Prom judgment of the court dissolving garnishment, plaintiff brings error.

<p>Error from Superior Court, Tulsa County; M. A. Breckinridge, Judge.</p> <p>Action by J. C. Oteen and others against John P. Given, with attachment. Judgment for plaintiffs, sale of land ordered and confirmed, defendant’s motion to vacate and set aside the sale overruled, and he brings error.</p>

<p>1. Appeal and Error — Depositions—Assign ment of Error — Admission of Deposition.</p> <p>When a party to an action desires to interpose an objection to questions and answers contained in a deposition, taken when the party desiring to interpose said objection did not appear at the taking thereof, such objection should be interposed when the question or answer is offered in evidence by the party taking it, and unless -such objection is interposed, pointing out the specific question or answer against which it is leveled, error cannot be predicated upon an assignment of error that the trial court committed error in the admission' of said evidence, without designating and objecting to the introduction thereof at the time it is offered.</p> <p>2. .Contracts — Evidence—Annulment of Contract — Agreement—Parol Evidence.</p> <p>Parties to a written contract may by a subsequent executed parol agreement annul the whole of any portion of said contract; and the purpose and effect of evidence of such parol agreement is not to vary the •terms of the written contract, but to sho-wi that by mutual consent it was changed, rescinded, or annulled.</p> <p>3. Appeal and Error — Weight of Evidence —Rendition of Judgment — Equitable Cognizance.</p> <p>In an action of equitable cognizance, this court has the right and power to consider the whole record and weigh the evidence, and, if the judgment and decree of the court is clearly against the weight of the evidence, cause to be rendered such judgment as the trial court should have rendered.</p> <p>I. Reformation of Instruments — Reservations — Evidence.</p> <p>Record examined in the instant case, and judgment and decree held not to be against the weight of the evidence.</p> <p>('Syllabus by Davis, C.)</p>

<p>1.. Damages — Injury.</p> <p>One who is injured by the wrongful act of another may recover any pecuniary loss sustained by reason of such injury.</p> <p>2. Same — Injury to Property — Time.</p> <p>In this jurisdiction it is well settled that where the injury complained of is susceptible of remedy o-r abatement by the expenditure of money or labor, that the o¡w-ner is entitled to recover only such damages as has accrued on account of the impaired or lost use of his property up to the -time of the suit.</p> <p>3. Same — Items.</p> <p>He is also generally entitled to recover compensation for discomfort, annoyance, and personal inconvenience where these are the proximate -result of the defendant’s wrong.</p> <p>4. Waters and Water Courses — Pollution of Stream — Action for Damages — Instruction.</p> <p>An. instruction which told the jury that the fact that the stream in question was polluted from other sources was not any defense or excuse for the city to add thereto, nor would that fact prevent; the owner from recovering any damages caused to him by its act, considered in connection with the other instructions of the case, was proper.-</p> <p>(Syllabus toy Hooker, O.)</p>

<p>Error from District Court, Okfuskee County; Geo. C. Crump, Judge.</p> <p>Action by Salina Mitchell and another against Charles C. Gafford. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. In the matter of the Oklahoma Furniture Manufacturing Company. Prom an order of the County Board of Commissioners sitting as the Board of Equalization of Oklahoma County, affirmed by the District Court, the Manufacturing Company brings error.

<p>Error from District Court, Garfield County ; James B. Cullison, Judge.</p> <p>Action by J. O. Wrench against Calloway & Son, a partnership composed of M. M. Calloway and Ben M. Calloway. Judgment for plaintiff, and defendants bring error.</p>

Error from County Court, Rogers County; Edward Jordon, Judge. In the matter of the seizure of one Ford automobile by the State, Frank .Bussey in-terpleaded. Judgment for the State, and the interpleader brings error.

<p>1. Appeal and Error — Procedure — Issuance of Summons — Appearance by Plaintiffs in Error.</p> <p>In appeals to thisi court from judgments rendered prior to March 23, 1917, the procedure is governed by sections 5238 5240, Revised Laws Oklahoma 1910. and when a praecipe for the issuance of a summons in error is not filed and a summons! in error is not issued or iwaived, nor a general appearance in this court entered by the defendant in error, this court is without jurisdiction to entertain such attempted appeal.</p> <p>2. Same — Noticie of Appeal — Statute.</p> <p>Section 1, C.-219, Ses-s.-Laws 1917, is not retroactive, and does not apply to appeals taken from judgments rendered prior to March 23, 1917.</p> <p>3. Same.</p> <p>In order to confer jurisdiction on this court of an appeal from a judgment rendered since March 23, 1917. “the party desiring to appeal must give notice in open court either at the time judgment is rendered or within ten days thereafter of his intent to appeal to the Supreme Court.”</p> <p>(Syllabus by Collier, C.)</p>

<p>Error from District Court, Sequoyah County; John H. Pitchford, Judge.</p> <p>Action by J. W. Edgeman against E. L. Moore. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Counties — Payment of Claims.</p> <p>The law is well established in this jurisdiction that one who demands payment of a claim against a county muse show some statute authorizing it or that- it arises from some contract, expressed or implied, which finds authority of law; and it is not sufficient that the services performed for which payment was demanded aré beneficial.</p> <p>. Counties — Appropriations for Farm Demonstration — Notice.</p> <p>. Under chapter 76, iSess. Laws 1913, the .respective counties of this state were authorized to appropriate and use any sum or sums of money not exceeding $500 per . year for -the purpose of co-o-perating with the United States Department of Agriculture in conducting farmers’ demonstration work in their respective counties as provided for therein, hut before doing so, however, notice "of such appropriation, setting a date for a hearing thereof, should be published for four -consecutive weeks, so that persons interested might remonstrate against the same. Held, , under this act, the proviso thereof must be ' complied with before the power and authority to make the appropriation may be exercised.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Tulsa County; Conn Linn, Judge. Action for specific performance by Nate Skidmore against J. H. Leavitt and others, Objection to the introduction of plaintiff’s evidence sustained, and he brings error.

Error from District Court, McClain County; P. B. Swank, Judge. Suit by Leanna Miles, by Belton Miles, her guardian against Belton Miles and other-s. General demurrer to petition sustained, and plaintiff brings error.

<p>1. Evidence: — Parol Evidence — Date Expressed in Deed.</p> <p>Parol testimony is admissible to vary the date as expressed in a deed to land, when such date is in issue.</p> <p>2. Vendor and Purchaser — Bona Fide Purchaser — Outstanding Claim.</p> <p>A purchaser of land is put on inquiry as to the claim or interest of one in open and notorious possession of the same, but may purchase subject to such claim or interest as would have been discovered by diligent inquiry.</p> <p>& Quieting Title — Title to Land — Possession — Removal of Cloud.</p> <p>In an action for cancellation of instruments affecting title to land, it is not necessary for the plaintiff to be in possession; either legal or equitable title constituting sufficient interest to authorize the plaintiff to bring the action. The removal of cloud from title may be ordered as an incident to the relief granted.</p> <p>(Syllabus by Stewart, C.)</p>

<p>Error from County Court, Osage County; Elmer J. Black, Judge.</p> <p>Action by Emma Torrey against W. E. Campbell. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by D. L. Jenkins and G. W. Jenkins, partners doing business under the name of Jenkins & Son, against A. R. Grantz. Judgment for plaintiffs, motion for new trial overruled, and defendant brings error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by the Victor Building & Loan Company against William P. Melds, with counterclaim by defendant. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.

<p>Bills and Notes — Negotiability — Qualifying Statements.</p> <p>The negotiability of a promissory note, given in payment for a stallion, is not destroyed by a subjoined statement that the note is given in payment for a certain stallion, which is delivered to maker with the agreement that said stallion shall remain the property of payee with full power of disposition, without notice, until the note is fully paid.</p> <p>(Syllabus by Pryor, C.)</p>

<p>1. Divorce — Allowance of Permanent Alimony — Discretion of Trial Court.</p> <p>Where a divorce is granted the wife by reason of the fault of the husband, the allowance of permanent alimony rests in the sound judicial discretion of the trial court, and is to be exercised with reference to established principles, and on a view of all the circumstances, such as the husband’s estate and ability at the time the divorce is granted, the wife’s condition and means, and the conduct of the parties.</p> <p>2. Same — Allowance—Reasonableness.</p> <p>Upon the consideration of the entire record in the instant case, it is found that the award of alimony to the wife was not unfair or unreasonable, and was justified by the facts disclosed by the evidence.</p> <p>(Syllabus by Galbraith, O.)</p>

Error from District Court, Oklahoma County; Geo. W. Clark. Judge. Action by V. H. Stevens against James S. 'Gladish, R. H. Thompson, Mattie M. Thompson, and others. Judgment for plaintiff, and the named defendants bring error.

Error from District Court, Muskogee County; R. P. De Graffenreid, Judge. Suit by L. E. Pettaway, a minor, by his nest friend, James Bell, against J. H. Hoffman and others. From an order overruling a. demurrer to the amended petition, defendants bring error on the transcript.

<p>1. Attorney and Client — Action for Contingent Fees — Measure of Skill and Knowledge.</p> <p>Where, in an action to recover attorney’s fees under an oral contract of employment stipulating that the amount of such fee should he contingent upon the success of the litigation, one ground of defense was based upon the contention that there was no consideration for such contract, inasmuch as the services claimed to have been rendered did not require skill, diligence, or lega] knowledge. Held, that the skill, diligence, and legal knowledge of counsel exercised in a lawsuit should be measured in a large degree by the result of the litigation, and not by the number of pleadings filed, or their length, or the number, of times counsel appeared in court, or the number of hours consumed in oral argument.</p> <p>2. Appeal and Error — Excessive Verdict— Attorney’s Fees — Vacation.</p> <p>A verdict rendered in such action should not be vacated on the ground that it is excessive, unless it clearly appears that the same is so excessive as per se to indicate passion or prejudice on the part of the jury.</p> <p>3. Attorney and Client — Amount of Fees— ■Evidence — New Trial.</p> <p>A consideration of the entire record in this case does not support the contention that the judgment appealed from is so excessive as to require this court to vacate the same and to order a new trial.</p> <p>('Syllabus by Galbraith, C.)</p>

<p>1. Landlord and Tenant — Defective Lease— Tenancy — Term.</p> <p>A tenant in possession under a void or defective lease for a term of years creates a tenancy at will, and, if periodical rent be paid, the tenancy becomes -one from year to year — following Peters v. Holder, 40 Okla. 93, 136 Pac. 400.</p> <p>2. Indians — Conditional Lease — Assignment of Rents — Rights.</p> <p>Neither the attempted assignment of rents nor the conditional lease contract, referred to in the opinion and relied upon by the plaintiff in error, as a basis of recovery in the instant case, conferred upon him any enforceable legal rights for the reason that the restricted Indian executing such instruments was without legal capacity to make the same.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District Court, Garfield County ; James B. Cullison, Judge. Action by Dan Neil against the Lonsdale Grain Company. Judgment for plaintiff, motion to set aside the judgment overruled, and defendant brings error.

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by L. E. Patterson against W. M. Bonner. Judgment for defendant and plaintiff brings error.</p>

Error from County Court, Pontotoc County; Orville Busby, Judge. Bastardy proceeding by the State of Oklahoma, on complaint of Lilly Lamb, against Ode W|ilson. From a judgment of conviction ordering defendant to pay certain money into the court for the maintenance and education of the child, he brings error.

<p>1. Partnership — Wrongful Dissolution — As-sumpsit for Damages.</p> <p>Where a partner breaks the covenants of a partnership and thereby wrongfully by force and fear, causes its dissolution, the other may maintain an action of assumpsit against him for the damages resulting.</p> <p>2. Same — Measure of Damages.</p> <p>The damages in such cases are the profits which would have accrued to the plaintiff from a continuation of the partnership business and which was a loss to him by the unauthorized dissolution.</p> <p>3. Trusts — Resulting Trust — Wrongful Dissolution of Partnership — Statute of Frauds.</p> <p>The statute of frauds will not prevent actions of this character from being maintained.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Rogers County; W. J. Campbell, Judge. Action by L. H. Babcock against A. T. Collison and A. J. Smysor. Judgment for defendants, motion for new trial overruled, and plaintiff brings error.

Error from District Court, Oklahoma County ; Geo. VV. Clark, Judge. Action by L. E. Patterson and the Interstate Building & Loan Company, substituted as plaintiff for L. E. Patterson, against D. M. Wilson aiid others. Prom orders on application to withdraw a motion to dismiss and to correct it, etc., defendants, other than D. M. Wilson, bring error.

<p>1. Insurance — Fire Policy Provisions — Statutory Requisites.</p> <p>Any provision in a policy of fire insurance written since the 25th day of March, 1909, that is in conflict with the provision of the standard form of policy of this state, provided by Act March 25; 1909, and of section 3482 Rev. Laws 1910, will not be enforced.</p> <p>2. Same — Recovery—Instruction.</p> <p>When, in an action upon a policy of insurance in the sum of $3,000, for the destruction of an automobile by fire, the evidence is in conflict as to the value of the automobile destroyed, it was reversible error for the court to instruct the jury that, if they found for the plaintiff, they must find for the face value of the policy.</p> <p>3. Same.</p> <p>A policy of fire insurance on property in this state, written since the 25th day of March, 1909, cannot liquidate the damages suffered by the amount stated in the policy, as the measure of recovery is the actual value of the property destroyed.</p> <p>(Opinion by Collier, O.)</p>

<p>Error from District Court, Okfuskee County; George G. Crump, Judge.</p> <p>Action by McKinley Brown, a minor, by nis guardian, T. ■ J. Brown, against W. S. Thompson. Judgment for defendant, and plaintiff brings error..</p>

<p>Error from District Court, Tulsa County; W. C. Crow, Assigned Judge.</p> <p>Action by Claud Brown against W. E. Goad and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Appeal from District Court, Tulsa County ; W. J. Campbell, Special Judge.</p> <p>Action by Lottie Juby against the Tulsa Hospital Association. Judgment for plaintiff, and defendant appeals.</p>

<p>Error from District Court, Fawnee County; Conn Linn, Judge.</p> <p>Action by A. M. Richards against the Dncle Sam Oil Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Garfield County; James B. Cullison, Judge. Action by F. B. Buzzard against the Oklahoma State Bank of Cushing and E. H. Howell. Judgment for plaintiff, motion for new trial overruled, and defendants bring error.

Error from District Court, Cherokee County; John H. Pitchford, Judge. Suit by J. C. Copeland and Samantha A. Copeland Lovejoy against Martha Copeland and Elizabeth Copeland. There was a judgment in the county court for defendants, and from the judgment of the district court on appeal in favor of defendants, and from the overruling of a motion for new trial,' plaintiffs bring error.

Error from District Court, Tulsa County Conn Linn, Judge. From an order • of the district court sustaining a motion to vacate and set aside an order of confirmation of a guardian’s sale of real estate entered by the county court of Tulsa county the purchaser, George W. Bennett, brings error.

Error from District Court, Seminole County; J. W-. Bolen, Judge. Action by J. E. Burke against the Chicago, Rock Island & Pacific Railway Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.

Error from District C ,urt, Oklahoma County; John W. Hay son, Judge. Suit by I. E. Marks and others against Baum Building Company and Anna.L. Over-holser, guardian of Henry Overholser, an incompetent, and the Union Trust Company with answer and cross-petition by defendant Overholser.. From a judgment denying a right of. subrogation, plaintiffs bring error.

Error from County Court, Murray County; J. H. Casteel, Judge. Action by the Durant Nursery Company against James W. Lusk et al., receivers of the St. Louis & S. F. B. Co., and the Chicago, B. I. & p. B. Co. Judgment for plaintiffs, and defendants bring error. . (A rehearing having been granted as to the Chicago, Bock Island & Pacific Bailway Company, in an opinion filed February 17, 1920, the judgment, as to it was affirmed upon condition of a remittitur.

Error from County Court, Bryan County; J. L. Rappolee, Judge. Action by H. W. Attaway against B. II. Zauk. Judgment for plaintiff, motion, for . new trial overruled, and defendant brings error.

<p>Error from District Court, Sequoyah County; John H. Pitchford, Judge.</p> <p>Action by W. M. Briscoe against John E. Johnson. Judgment for defendant, and plaintiff brings error.</p>

<p>1. Banks and Banking — Commission Charged by President of Bank — Liability for Usury.</p> <p>Where the president of a bank, having full power to make loans for the bank, takes more than the legal rate of interest, the bank is liable for usury, although the president charges the excess over the legal rate as commission and retains it as his individual property.</p> <p>2. Banks and Banking — Liability—Reorganized Bank — Usury.</p> <p>Where a state bank is reincorporated as a national bank under a new name, but the personnel, officers, management, and business remain the same, the new bank is liable for usury charged and collected by the old' bank.</p> <p>(Syllabus by Pope, O.)</p>

Error from District Court, Lincoln. County ; Chas. B. Wilson, Jr., Judge. Action by A, S. Cleveland and another, surviving partners of the firm of Wta. D. Cleveland & Son, against A. E. Mascho and another. Judgment for defendants, and ■plaintiffs bring error.

<p>Error from District Court, Pontotoc County ; G.eo. C. Grump, Assigned Judge.</p> <p>Action by AV. T. Smith against the City of Ada. Judgment for plaintiff, and defendant brings error.</p>

<p>Carriers — Transportation of Passengers— Who Are Passengers — Duties and Liabilities.</p> <p>Plaintiff made and entered into a special shipment contract with the railroad company covering transportation of a car of household goods and live stock. As consideration for the feeding, watering, and caring for the live stock, the plaintiff was given free transportation. The contract provided, among other things, that plaintiff should have the sole care of said live stock, and should feed, water, and otherwise care for them; that he would remain in the caboose attached to said train while th.e train was in motion, and would not get on or off any freight car while switching was being done at stations. Held:</p> <p>(a) That plaintiff was a passenger; the consideration for his passage 'being the care given the stock.</p> <p>(b) That as such he was entitled .to the highest reasonable and practicable skill, care, and diligence from the railroad company.</p> <p>(c) That in the discharge of his imposed duty under the contract he had a right to enter the car at a station, in the morning, for the purpose of feeding and caring for the stock.</p> <p>(d) That he, having no control of the movement of the cars or the train, violated no valid term of said contract by being in said oar, as aforesaid, while the same was being switched. St. L. & S. F. R. Oo. v. Kerns, 41 Okla. 467, 136 Pac. 169, followed.</p> <p>(Syllabus by Burford, C.)</p>

<p>Error from District Court, Seminole County : Tom D. McKeown, Judge.</p> <p>Action by B. D. Lack against J. B. Chandler and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Nowata County; W. A. Chase, Special Judge.</p> <p>Action by William E. Sunday against Ellen Baldridge. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Jefferson County; Cham Janes, Judge. Petition by O. S. Wade against R. W. Hope and. another, in which an order was entered withholding execution upon a' judgment until a hearing on the petition. From an order sustaining defendants’ Motion to vacate the order and dismissing the petition, plaintiff brings error.

<p>Error from District Court, Custer County; Thos. A. Edwards, Judge.</p> <p>Action by S. J. Strong against George W. Day and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Garfield County; James B. Cullison, Judge.</p> <p>Action by A. F. Goulding (Mrs. P. J. Goulding), guardian of Harold Hurley, a minor, against the Oklahoma Automobile Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. ■ Action by J. W. Ferguson against Odell Hart. Judgment in justice court for defendant, and from a judgment, on appeal, upon-a directed verdict for plaintiff;, and from the overruling of a motion for a new trial, defendant brings error.

Error from County .Court, Cherokee County; E. C. McMichael, Judge. Action on an account by the Quinn-Barry Tea & Coffee Company against Boorigie Bros. Judgment for plaintiff, on defendant’s appeal from a judgment in his favor in justice court, motion for new trial overruled, and defendant brings error.

Error from District Court, Carter County; W. F. Freeman, Judge. Action for injunction by F. E. Wiatkins against John J. Tell, treasurer of Carter county, Okla. From an order sustaining defendant’s demurrer to the petition, plaintiff brings error.

<p>1. Divorce — “Extreme Cruelty” — Statute.</p> <p>The conduct of either spouse which grievously wounds the mental feelings of the other, or so utterly destroys the peace of mind of the other as to seriously impair the bodily health, or such as utterly destroys the legitimate end of matrimony, constitutes extreme cruelty, within the meaning of section 4962, Revised Laws 1910.</p> <p>2. Appeal and Error — Decree—Sufficiency of Evidence.</p> <p>Where the evidence is in conflict, but the weight of the evidence reasonable supports the decree rendered, this court will not disturb such decree.</p> <p>3. Divorce — Extreme Cruelty — Sufficiency of Petition.</p> <p>The amended petition filed in this cause carefully examined, and held to state a cause of action for divorce upon the ground*of “extreme cruelty.”</p> <p>4. Extreme Cruelty — Sufficiency of Evidence.</p> <p>The evidence in this case carefully examined, and, though in conflict, the weight thereof held to be sufficient to reasonably support the decree rendered.</p> <p>('Syllabus by Collier, o.)</p>

<p>1. Appeal and Error — Continuance—Review — Discretion of Court.</p> <p>Applications for a continuance are addressed to the sound discretion of the trial court, and, unless it is clearly apparent that the discretion has been abused, this court will not interfere and grant a new trial or reverse the cause therefor.</p> <p>2. Insurance — Life Insurance — Recovery— Sufficiency of Evidence.</p> <p>The record in this case examined, and it is held, that the judgment of the trial court is not reasonably sustained by the weight of the evidence,</p> <p>3. Insurance — Policy Provisions — Delivery Presumptions.</p> <p>The presumption of the delivery of an insurance policy arising from possession thereof does not arise where, on the face of the policy iiself, some act remains to be done to make it complete, and the possession of a policy of insurance containing a clause “in further consideration of the sum of $- to bo paid in advance” is not evidence of the payment of the premium.</p> <p>4. Evidence — Lithographic Receipt — Authentication.</p> <p>A lithographic receipt, which contains a provision upon the face thereof that in order for the same to be valid it must be countersigned by an authorized agent of the company, is not receivable in evidence until due and valid execution thereof or its genuineness and authenticity has been. established; the said receipt not being countersigned as provided.</p> <p>5. Evidence — Presumption on Presumptioni.</p> <p>Facts upon which an inference may legitimately rest must be established by direct evidence, as if they were the very facts in issue, for one presumption cannot be based upon another presumption.</p> <p>(Syllabus by Hooker, 0.)</p>

Error from District Court, Pontotoc County: Tom D. McKeown, Judge. Action by J. W. Kennedy and D. Kennedy against James W. Lusk and others, receivers of St. Louis & San Francisco Railroad Company. Judgment for plaintiffs, and defendants bring error.

<p>Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.</p> <p>Action by the First National Bank of Maud, Okla., against Omer McKown and Cora E. McKown. From a judgment for defendants, plaintiff brings error.</p>

Error from District Oourt, Wagoner County ; Chas. G. Watts, Judge. Suit by Susan L. Letts, executrix of the estate of AVillie B. Garner, deceased, against Charles Haskell Letts, John L. Garner and others. Demurrer to petition by guardian ad litem for defendants, except John L. Garner, who made default, sustained, and judgment entered for defendants, and plaintiff brings error.

<p>1. Carriers — Bill of Lading with Draft Attached — Transfer of Title to Property.</p> <p>Where a bill of lading is indorsed to the bank with draft attached and the draft paid to the assignor by the bank, held, that such a transaction had the effect to transfer the legal title of the property called for therein to the bank.</p> <p>2. Garnishment — Plea in Intervention — Sufficiency.</p> <p>The plea of intervention examined, and held to state a cause of action and was error to sustain a demurrer thereto.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. Use and Occupation — Recovery.</p> <p>In an action for úse and occupation of land, recovery can be had only for the value of the use and occupation of the land during the time plaintiff was entitled to the possession thereof.</p> <p>2. Vendor and Purchaser — Use and Occupation by Tenant — Purchaser’s Right to Rents.</p> <p>A purchaser of land occupied and used by the tenant of the grantor is not entitled to the rents already accrued at the time of purchase.</p> <p>(Syllabus by Pope, C.)</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action for injunction by R.‘ C. Green and others against H. M. Fo-wler, County Superintendent, and others. Decree for plaintiffs, motion for new trial overruled, and defendants bring error.

<p>Error from District Court, Beckham County; T. P. Clay Judge. .</p> <p>Action by J. W. McMurray and J. R. Mc-Murray against H. K. Speed. Judgment for plaintiffs, and defendant brings error.</p>

<p>1. Appleal and Error — Review — Setting Asidei Default Judgment.</p> <p>Where there has been a trial of a cause in the absence of a party or default judgment rendered, and no objections and exceptions saved, the rulings of the court in the trial of said cause cannot be reviewed on appeal.</p> <p>2. Judgment — Default Judgment — Vacation.</p> <p>It is not the duty of the court clerk to notify a party or his attorney of the setting of a cause for trial, and the failure to do so is not grounds to vacate a judgment rendered in the absence of such party or his attorney.</p> <p>(Syllabus by Pryor, .Q.)</p>