Volume 74 — Oklahoma Reports

<p>Error from District Court, Mayes County; Chas. G. Watts, Judge.</p> <p>Action by Union Saving Association against Maggie Burns. Judgment for defendant, and plaintiff brings .error.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Suit by George Dancey against the St. Louis & San Francisco Railroad Company and others. Verdict against defendant company, and in favor of the other defendants. Its motions for judgment notwithstanding the verdict and for a new trial were overruled, and it brings error.

<p>1. Indians — Lands — Confirmatory Deeds— Validity.</p> <p>Minnie B. Armstrong, a three-eighths blood Cherokee, during her minority executed a deed to B. G. Goble and Elizabeth Goble, his wife, to certain land allotted her as a member of the Cherokee Nation, for a valuable consideration. After she attained her majority she executed certain other deeds to the same land to B. G. Goble and J. P. O’Meara for the purpose of perfecting the title to said land. Held, that the deeds executed by 'Minnie B. Armstrong after she attained her majority, being voluntary conveyances for the purpose of perfecting the title to said land, were valid and binding deeds and not subject to cancellation by a suit instituted for that purpose by Minnie B. Armstrong; there being no fraud, duress, or mistake in the execution of said instruments proven.</p> <p>2. Indians — Lands—Voluntary Alienation.</p> <p>A three-eighths Cherokee Indian, after reaching his or her majority, can make a voluntary alienation of his or her allotted lands; and such conveyance is valid and binding against the party maiking it.</p> <p>(Syllabus by Davis, C.)</p>

Error from District Court, Murray Ccun-ty; F. B. Swank, Judge. Action by Harry H. Iman against William J. Scott and Charles A. Bryan. Judgment for plaintiff, motion for new trial overruled, and defendant Scott brings error.

<p>Fraudulent Conveyances — Judgment —* Sufficiency of Evidence.</p> <p>Evidence in this case examined, and held not to show facts sufficient to entitle the plaintiff to recover.</p> <p>(Syllabus by Pope, C.)</p>

<p>Error from District Court, Custer County; Thomas A. Edwards, Judge.</p> <p>Suit in justice court by Butler State Bank, against L. L. Brown. From a judgment of tbe district court, on appeal from justice’s judgment for plaintiff, defendant brings error.</p>

Error from District Court, Muskogee County ; Chas. G-. Watts, Judge. Action by L. L. Northcutt and another against A. W. Eyerly and another. Demurrer to evidence sustained and judgment rendered for defendants, and, from an order granting plaintiffs’ motion for a new trial, defendants bring error.

<p>Error from District Court, McClain-County ; R. McMillan, Judge.</p> <p>Action by the Loth-Hoffman Clothing Company against Paul Schwartz. Verdict and judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Arnie Clarence Adair, a minor, by Lottie N. Adair, his next friend, filed written exceptions to the final report of T. C. Montgomery, guardian of Arnie Clarence Adair. Exceptions overruled, report approved, and guardian discharged, and from the dismissal of an attempted appeal to the district court, Arnie Clarence Adair, by his next friend, brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action for injunction ,by the State of Oklahoma, on relation of Chas. B. Selby, County Attorney of Oklahoma County, Oklahoma, against T. A. Hoover. Judgment for plaintiff awarding a permanent injunction, and defendant brings error.

<p>Error from County Court, Oklahoma County; W. H. Zwick, Judge.</p> <p>Action by W.' E. Nation against W. H. Savely and another. Plea in abatement sustained, and action dismissed, and plaintiff brings error.</p>

Error from County Court, Payne County; Wilberforce Jones, Judge. Action by W. M. Glenn against the Standard Oil Company, an Indiana corporation. Ycrdiei and judgment for plaintiff, motion for new trial overruled, and defendant brings error.

Error from District Court, Oklahoma County : AV. 0. Crow, Assigned Judge. Suit by Nettie Johnston, administratrix of the estate of Nathaniel Johnston, against J. K, D. Shaftf¿r. Demurrer to plaintiff’s evidence sustained, and judgment for defendant, and plaintiff brings error.

<p>Error from District Court, Oklahoma County; John J. Carney. Judge.</p> <p>Action by the Oklahoma National Life Insurance Company against the National Surety Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Appeal and Error — Discretion of Trial Judge — Time for Filing Pleadings — Review.</p> <p>Section 4757, Rev. Laws 1910, vests the trial judge with a discretion to permit pleadings to be filed out of time, and his decision thereon will only be reversed here when it is shown that such discretion has been abused to the prejudice of the complaining party.</p> <p>2. Witness — Evidence—Pleadings.</p> <p>It is not error to admit as evidence pleadings filed in an action, other than the one being tried by one of the parties to the action being tried, when said pleadings are offered for the purpose of impeachment.</p> <p>3. Acknowledgment — Deeds.</p> <p>Section 1154. Rev. Laws 1910, provides that no acknowledgment shall be necessary to the validity of a deed as between the parties thereto. In an action between the grant- or and grantee, error cannot be predicated upon the action of the trial court in admitting a deed in evidence on the ground that the certificate of the notary before whom said deed was acknowledged does not comply with the statutory requirements pertaining thereto. .</p> <p>4. Gifts — Gifts Causa Mortis — Delivery — Evidence.</p> <p>One of the essential elements of a gift causa mortis is that its delivery must be made in expectation of death. Evidence! in the instant case examined, and held, that the transaction between the parties hereto constitutes a gift inter vivos, and not a gift causa mortis.</p> <p>5. Instructions.</p> <p>Instructions examined in the instant case, and held to be a correct statement of the law applicable to the facts as disclosed by the evidence.</p> <p>(Syllabus by Davis. O.)</p>

Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by Catarino Maxia and another, minors, by their next friend, Louis Lopez, against the Oklahoma Portland Cement Company. Verdict and judgment for defendant,' motion for new trial overruled, and plaintiffs bring error.

<p>Oil and Gas — Lease—Covenants—Consideration — Mutuality—Termination.</p> <p>Where a cash bonus is paid for an oil and gas lease covering 160 acres, which provided that the lessee should commence the drilling of a well within 12 months from the date thereof, or pay $100 for each additional 12 months such completion is delayed, and further provides that upon payment of • $1 the lessee shall have the right to surrender the lease for cancellation, after which all liabilities thereafter to accrue shall cease and determine, held, that such cash bonus supports each and all the covenants in the lease, and held, further, that the presence of a surrender clause in said lease did not render the same void for want of mutuality nor confer on the lessor the right to terminate said lease at will.</p> <p>(Syllabus by Pryor, C.)</p>

<p>1. Contracts — Public Policy.</p> <p>0. entered into a contract with H., an attorney at law, lor services to aid, advise, anu consuu party of the second part in a matter then pending before the state’ Corporation Commission, wherein cause 1906, the building of a new depot, was pending before said Corporation Commission, in the case oí J. O. Hamilton et ai., of Henryetta, v. St. Louis & ¡áan Francisco Railroad Company, defendants, which asked for new and adequate depot tacilities. The contract further provides: "That the party of the first part agrees to pay to the party of the second part $500.00 when said order is made permanent and after all time for appeal has passed, or if appealed by the said San Prau-cisco Railroad when'said appeal has been confirmed by the Supreme Court of the state and when said order has been made, the actual and incidental expenses are to be paid, and the contract is conditioned that the state Corporation Commission in its said order make for the building of said depot and the sainé to be placed at or near the foot of Main street in the town of Henryetta and not further lrom the foot of said Main street than the same now stands, and that said contract was to be null and void ifi the said Corporation Commission does not make said order, or if the same is ordered to be built at any other place or part of the city of Henryetta, and no part of the said five hundred dollars, or expenses, is to be paid by the party of the first part.” Held, that the contract is not void as against public policy.</p> <p>2. Attorney and Client — Action, on Contract for Employment — Defenses.</p> <p>In an action to recover upon the contract described in the first paragraph of this syllabus, the defendant pleaded as a defense that said depot was located at the point contracted, but that the plaintiff, in order to have the building so located, had to pay part of the purchase price of the lot upon which the building was located. Held, that such payment, was not germane to the contract sued upon, and did not constitute a defense to the action.</p> <p>(Syllabus by Collier, 0.)</p>

<p>I. Commerce — Federal Employers’ Liability Act — Engaged in Interstate Commerce.</p> <p>Evidence which shows that a railroad employe was injured while repairing one of the company’s locomotives, which, had b.een used in pulling an interstate passenger train, and which had been taken from the line tracks and placed in a roundhouse for repairs, is insufficient to show that the rights of the parties were controlled by the privileges and obligations arising under the federal Employers’ Liability Act (TJ. S. Comp. S. 1916, §§ 8657-8665).</p> <p>2. Master and Servant — Negligence of Fellow Servant — Liability of Master.</p> <p>Where a servant of a railroad company, while engaged in operating a jack in an effort to raise one of the company’s engines, is injured by the excessive weight of the lever of the jack being thrown upon him by reason of a fellow servant, who was assisting him, releasing his lift on the lever without warning, held, that the negligence of the fellow servant in releasing his lift and throwing the entire weight on the plaintiff, without notice or warning, was the negligence of the master.</p> <p>3. Same — Failure to Furnish Sufficient Men.</p> <p>Where the evidence is such as to warrant a reasonable inference that an injury to a servant was the result of a failure of the master to furnish sufficient men to safely operate a certain appliance, a judgment for the servant will be sustained.</p> <p>(Syllabus by Pope, C.)</p>

Error from District Court, Marshall Cotfiily: Jesse M. Hatchett, Judge. Action by Zarabelle Going and another against A. J. Shelton and another. Judgment for defendants, motiou for new trial overruled, and plaintiffs bring error.

Error from District Court, Stephens County ; Cham Jones, Judge. Action of forcible entry and detainer by H. M. Wolverton against Richard Ward. Judgment for defendant, and plaintiff brings error.

<p>1. Negligence — Allegations of Negligence— Proof — Recovery.</p> <p>Where the plaintiff alleges several independent acts of negligence not connected with each other as grounds for recovery, if the proof is sufficient to establish any of such acts of negligence, the plaintiff may recover.</p> <p>2. Carriers — Alighting from Train — Assistance to Passenger.</p> <p>It is not the general duty of a carrier to assist a passenger to alight from a train, unless special circumstances impose such duty. In the case of a sick, old, or infirm passenger, it is the duty of the company to furnish such assistance, and in cases, where, by the use of ordinary care, the conductor or other employes see that such assistance is needed, it becomes the duty of the company to render such assistance.</p> <p>3. Same — Infirm Passenger — Question for Jury — Evidence.</p> <p>Whether or not a person comes within such excepted class so as to impose a duty on the •n""' of the carrier is a question for the jury, the standard of duty being not .fixed but variable and shifting with the circumstances of the case: but, where there is no evidence tending to show that the plaintiff falls within the exceptions to the general rule, it- is reversible error for the court to submit to the jury the question of negligence of the carrier in failing to render such assistance.</p> <p>(Syllabus by Rummons, O.)</p>

<p>Error from District Court, Rogers County; W. J. Campbell, Judge.</p> <p>Action by A. A. Esau against the Farmers’ & Merchants’ Bank and the Collinsville National Bank. Judgment for plaintiff, and the Collinsville National Bank brings error.</p>

Error from County Court, Murray County; J. H. Casteel, Judge. Suit b.y the Waples-Painter Company against William J. Scott, with garnishment upon the Bank of Commerce of Sulphur and (he Oklahoma State Bank of Davis, with answer and cross-petition by defendant. Demurrer to paragraph and answer sustained, and judgment against defendant, and defendant brings error.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by Julia Reinhard against Eugene F. Lonsdale and another. Judgment for plaintiff on a directed verdict, motion for new trial overruled, and defendants bring .error.

Error from District Court, Tulsa County; Conn Linn, Judge. Action by the Roxana Petroleum Company of Oklahoma and the Roxana Petroleum Corporation against O. Y. Goldrick and others. Judgments for plaintiffs, and defendants bring error.

<p>1. Intoxicating- Liquors — Bone Dry Law-Liquors Intended for Personal Use— Carriers.</p> <p>Chapter 186, Session Laws 1917, known as the “Bone Dry Law,’’ does not prohibit the bringing into this state of intoxicating liquors when said intoxicating liquors have been lawfully purchased and intended for personal use. The said act restricts the manner in which it may be brought in, and the extent of the inhibition thus imposed is restricted to a prohibition against receiving it from a common or other carrier directly or indirectly.</p> <p>2. Same — Bringing Liquor into State for Personal Use — Confiscation of Vehicle.</p> <p>The laws of Oklahoma do not prohibit an individual from bringing- into Oklahoma intoxicating liquors lawfully purchased in another state and intended for personal use. provided he brings said intoxicating liquors himself, and a vehicle or automobile in which said intoxicating liquor is toeing transported is not subject to seizure and confiscation under the law of this state by reason of being used for said purpose. In order to render said vehicle or automobile subject to seizure and confiscation, it must appear that it is being used for the purpose of conveying or transporting intoxicating liquors unlawfully purchased or lawfully purchased with an intent to use the same in some manner prohibited by the laws of this state.</p> <p>(Syllabus by Springer, C.)</p>

<p>Sales — Breach of Warranty — Measure of Damages.</p> <p>In an action seeking to recover d-amages for a breach of warranty as to the quality of personal property, the same must be determined by the difference in value between that contracted for and that delivered-at the point of delivery.</p> <p>(Syllabus by Hooker, C.)</p>

<p>1. Banks and Banking — Pleading—Insolvency — Objection: to Evidence — Stockholder’s Liability — Sufficiency of Petition.</p> <p>Where the sufficiency of a petition is challenged solely by an objection to the introduction of evidence thereunder, such objection should generally he overruled, unless there is a total failure to allege some matters essential to the relief sought, and should seldom, if ever, be sustained, when the allegations are simply incomplete, indefinite, or conclusions of law. The amended petition in this case examined, and held to state a cause of action.</p> <p>2.. Evidence — Documentary Evidence — Identity.</p> <p>The evidence here examined, and same sufficiently identifies the books of the bank to entitle the same to be introduced in evidence.</p> <p>3. Trial — Setting Case for Trial.</p> <p>Under section 5043, Rev. Laws 1910, a cause stands for trial whenever the issues have been made up for a period of 10 days: and the subsequent filing of a motion by plaintiff, directed to defendant’s answer, but which is not filed within the time allowed for filing pleadings under the statute, does not revive the operation of the .statute.</p> <p>4. Same — Statute—Delay.</p> <p>When the issues have once been fully made up by the filing of pleadings, or by failure to file them, the provision of the statute mentioned in the foregoing paragraph has spent its force, and thereafter any change in the issues caused by the filing of new or amended pleadings by leave of the court or consent of the parties does not, by reason of said action, necessarily work a delay of the trial.</p> <p>5. Baraks and Banking — Stockholder’s Liability — Discharge.</p> <p>Where the capital stock of a banking corporation has become impaired, and an assessment against the stockholders is ordered, under section 288, Rev. Laws 1910, to enable the bank to continue business, the payment of such assessment and the resumption of the business by the bank does not in any manner affect or discharge the stockholders from their general statutory liability for the debts of the bank upon its subsequent insolvency. The latter liability is designed solely for the benefit of the creditors, and constitutes a fund available only when the bank is insolvent and unable to meet its obligations in full.</p> <p>6. Same — Insolvency of State Bank — Liability of Stockholders — Estoppel.</p> <p>Where an action is instituted by the bank commissii nor of the state to recover the doub.e liability imposed by section 265, Rev. Laws 1910, as a general rule, all persons whose names are on the books of the bank, as the absolute owners of stock, are liable therefor, as parties dealing with the bank have a right to. assume that the books of the .bank show who are its stockholders, and as such stockholders they are bound for the liabilities of the bank in the manner provided by the statute, and if one knowingly permits his name to appear upon a stock book of the bank as a shareholder, he will be estopped, in favor of an action brought by the bank commissioner to collect the double liability from denying liability.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>Evidence — Transcript — Former Trial — Authentication.</p> <p>It was error to admit in evidence, over objection, a document purporting to- be a typewritten transcript of the testimony of a witness given at a former trial of said canse without the same being properly authenticated.</p> <p>(Syllabus by Pope, O.)</p>

<p>Error from District Court, Greer County; W. C. Grow, Assigned Judge.</p> <p>Action by W. A. Gage & Co. against H. D. Bennett and another. Judgment for plaintiff, and defendants bring error.</p>

<p>Vendor and Purchaser — Bona Fide Purchaser — Necessity of Inquiry.</p> <p>Knowledge by a purchaser of land that the grantor under whom the vendor claims is in possession thereof is not such knowledge as to put a purchaser upon inquiry as to the title of such grantor.</p> <p>(Syllabus by Hooker, C.)</p>

Error from District Court, Choctaw County; Summers Hardy, Judge. Action for injunction by H. H. Hale against E. W. Record. From an order modifying a temporary restraining order, plaintiff brings error.

<p>1. Jury — Master and. Servant — Negligence —Personal Injury — Contributory Negligence — Assumption of Risk — Constitutional Provision.</p> <p>Article 23, § 6, of the Constitution of Oklahoma, is not merely declaratory of the common law, but requires that the defense of contributory negligence and assumption of risk as to questions of fact in all cases whatsoever shall at ail times be left to the jury, and the finding of the jury upon these defenses is conclusive upon the court.</p> <p>%. Constitutional Law — Vested Rights — Defense.</p> <p>The citizen has no property in a defense and while rights which have accrued to him under the operation of existing laws, and have thereby become vested, may not be taken away by change of the rule, he cannot be heard to complain if the rule is changed before any rights have accrued to him thereunder.</p> <p>3. Railroads' — Personal Injury — Negligence -^-Violation of Speed Ordinance.</p> <p>The running of a train within the limits of a city, in excess of the rate of speed prohibited by ordinance of the city, is negligence per se.</p> <p>(Syllabus by Pope, C.)</p>

<p>Attorney and Client — Attorney’s Lien — Priority over Oil and Gas Lease.</p> <p>Where an attorney has a contract with parties claiming lands in adverse possession of another to prosecute an action for recovery of such lands, said contract providing that the attorney shall have a certain percent. of the land in the .event of recovery or compromise of the lands or proceeds, and the attorney commences action in pursuance-to the contract to recover said iand, effects his attorney lien in accordance with this statute, a third party, who procures an oil and gas mining lease on the lands in controversy from the plaintiffs during the pen-dency of the suit, takes such oil and gas mining lease subject to the attorney’s contract and lien, and where the controversy is compromised, and a part of the land is set apart and conveyed to the attorney in satisfaction of his lien and contract, such part is not subject to the said oil and gas mining lease.</p> <p>(Syllabus by Pryor, 0.)</p>

Error from District Court, Okfuskee County; Ben C. Ballard. Special Judge. Action in ejectment by J. W. Jamison and another against R. G. Davenport and B. S. Whitfield, with' errss-petition by defendant Whitfield, against his codefendant, Davenport, and disclaimer by defendant Davenport. Judgment for plaintiffs for possession of lands and for damages, and judgment for defendant Whitfield against defendant Davenport.

Error from County Court, Comanche County : H. N. Whalin, .Tedge. Action by the First National Bank of Law-ton against 6. W. Goff, W. A. Penick, and another. Judgment for plaintiff, and defendant W. A. Penick brings error.

Error from County Court, Carter County; Thomas W. Champion. Judge. Action by tbe Moline Plow Company against T. E. Wilson. Verdict and judgment for defendant, motion for new trial overruled, and plaintiff brings error.

Error from District Court, Haskell County : W. H. Brown, Judge. Petition by Sheldon Bush personally and as administrator of the estate of Linda Bush and Daniel Bush to have a homestead set. apart for the family of deceased, opposed by W. L. Belt and others. From an order setting apart a homestead of Linda Bush, deceased, to Sheldon Bush and Daniel Buffi, defendants bring error.

Error from District Court, Garfield County ; James B. Cullison, Judge. Action by the Peters Branch of the International Shoe Company against Grace *A. Blake, administratrix of the estate of W. B. Blake deceased, and another; and action by the Ely & Walker Dry Goods Company against the same defendants. Cases consolidated for trial, and verdict and judgment for defendants, and motion fur new trial overruled ; and plaintiff in each case brings error.

Action by tbe Security State Bank against W. T. Guinn and others. Judgment for plaintiff, and defendants bring error. On motion to dismiss appeal.

<p>Error from District Court, Lincoln County ; Chas. B. Wilson, Jr., Judge.</p> <p>Action by the Security State Bank of Shawnee against W. T. Guinn and Rosie Guinn. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Woods County; W. 0. Crow, Judge. Replevin by the Hart-Parr Company against A. N. Thomas. Judgment for defendant, motion for new trial overruled, and plaintiff brings error.

Error from Superior Court, Tulsa County; II. A. Breekenridge, Judge. Actions for injunction by the Metropolitan Jewelry Company against the City of Tulsa and others, and by the Benjamin Jeweler Rice Company against the same defendants. Demurrer to petitions overruled, and permanent injunctions granted, and defendants in each action bring error.

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by the Grand Rapids Showcase Company against the J. M. Hoard, Jr., Company. Judgment for plaintiff, and defendant brings error.</p>

<p>1. Oil and Gas — Lease—Approval of Title —Grounds of Disapproval — Good Faith.</p> <p>A contract for the sale of an oil and gas lease stipulated that the mutual obligations of the parties should accrue only in case of approval of the title of the land by the attorney of the purchaser. Held, that it is immaterial, in ease of disapproval of tlie title by such attorney, on what grounds he objects, provided the disapproval is in good faith.</p> <p>2. Same — Burden of Proof — Good Faith.</p> <p>Where one who contracts to purchase an oil and gas lease, subject to the approval of the title of the land by his -attorney, refuses afterwards to complete the purchase because the title is disapproved by such attorney, and the vendor seeks to enforce the sale, the burden is upon such vendor to prove that the vendee or his attorney acted in bad faith in rejecting the title.</p> <p>3. Same — Evidence—Approval of Title— Good Faith — Harmless Error.</p> <p>. Testimony as to the grounds upon which an attorney for a proposed vendee of an oil and gas lease bases his disapproval of title -of the land submitted to him under a written contract between the vendor and the vendee, making the opinion of such attorney final as to title, is not admissible to change the written contract, but is competent as proof of a circumstance throwing light on the action of the attorney; when, however, there is no evidence introduced or offered which, in connection with the conduct of the attorney, tends to prove bad faith the rejection of testimony showing the grounds of disapproval does not constitute prejudicial error.</p> <p>4. Same — Approval of Title — Statement of Grounds.</p> <p>When, according to the stipulation in a contract for the sale of an oil and gas lease, the title to the land is unqualifiedly subject to the approval of the vendee’s attorney, it is not necessary, in case of disapproval of the title, for such attorney either to give his reasons therefor or to call the attention of the opposite party to defects in the title for the purpose of correction, in the absence of a contract requiring such to be done. .</p> <p>(Syllabus by Stewart, O.)</p>

Error from District Court, Carter County; W. E. Freeman, Judge. Action between the Adams Oil, Gas & Development Company and L. C. I-Iivick and others. Judgment for the latter, and, from an order overruling its motion for a new trial, the former brings error.

<p>Error from District Court, Osage County: R. B. Boone, Judge.</p> <p>Suit by F. B. Price against Florence H. Stumpff and another. Judgment against defendants by default, and after a foreclosure sale and deed defendants’ amended motion to set aside the judgment, sale, and deed was overruled, and they bring error.</p>

<p>Error from District Court, Stephens County; Cham Jones, Judge.</p> <p>Action by Eliza Lauderdale against Bird E. O’Neill and others. Judgment for defendants, and plaintiff brings error.</p>

<p>1. Judgment — Collateral Attack.</p> <p>Where the judgment roll is regular upon its face, and contains the necessary jurisdictional averments, the same canont be collaterally attacked.</p> <p>2. Guardian and Ward — Appointment of Married Woman — Collateral Attack.</p> <p>The appointment of a married woman as guardian of her child is voidable, but not void, and the illegality of such appointment cannot be shown upon collateral attack.</p> <p>3. Appeal and Error — Assignment of Error.</p> <p>The assignment of error that the court erred in not rendering judgment for the defendant presents no question for review by this court.</p> <p>4. Appeal and Error — Rulings on Evidence —Record.</p> <p>Where the admission or exclusion of evidence is complained of, but such evidence is not set out in the brief, and che ground upon which such complaint is predicated is not stated, this court will not review the same.</p> <p>5. Guardian and Ward — Sale of Ward’s Land — Failure to File Bond.</p> <p>The failure of a guardian to file the additional sales bond required to be filed prior to the sale of his ward’s land under an order of court is not jurisdictional, and the failure to file such bond is a mere irregularity.</p> <p>(Syllabus by Collier, C.)</p>

<p>1. Appeal and Error — Case-Made—Signature and Settling — Notice.</p> <p>Where a case-made has been prepared and duly served within the time allowed and the defendant in error returns such case-made without the suggestion of amendments, no notice to him of the signing and settling of such case-made is required.</p> <p>[This paragraph of the syllabus, as written by the Commissioner, is not approved by the court. See opinion by Hardy, J., at end of case.]</p> <p>2. Trial — Instructions—Province of Jury.</p> <p>In an action for slander, the defense being a denial of speaking the slanderous words charged, the defendant having pleaded and proved the speaking of words of and concerning the plaintiff which were not slanderous, the giving of an instruction to the jury, advising them that evidence on the part of the defendant of speaking the non-defamatory words alleged in his answer was admitted to aid the jury in determining whether or not the defendant did in fact use the language alleged by the plaintiff, and that the evidence on behalf of the defendant, that he used such nondefamatory language, was a circumstance for them to consider in determining the issues between plaintiff and defendant, invades the province of the jury and constitutes reversible error.</p> <p>3. Appeal and Ermr — Hai-mless Error-Failure to Withdraw Incompetent Evidence.</p> <p>In an action for slander, the defense be-ing0a denial of speaking the alleged defamatory word, Immaterial and incompetent evidence was admitted over the objection of plaintiff as to the management of a corporation of which plaintiff was an officer and defendant a stockholder; an instruction, which advises the jury that none of this evidence really .had any place in the case, but that plaintiff is insisting that he had looked after the business of the corporation at great personal sacrifice and that such evidence was admitted as bearing upon the question as to whether the plaintiff was in all his transactions influenced solely by a desire to further the interests of the corporation, does not withdraw trom the consideration of the jury such incompetent and immaterial evidence but leaves it for their consideration upon an issue not within the pleadings and the giving of said instruction constitutes prejudicial error.</p> <p>4. Libel and Slander — Judgment — Attorney’s Fees — Statute.</p> <p>Under the provisions of section 4961, R. L. 1910, in an action for libel or slander \xhore there are several causes of action setup and united in one petition a verdict for the defendant, finding the institution of the action to he malicious as to each cause of action, does not warrant the awarding of a judgment for the defendant for an attorney’s fee upon each cause of action. There being but one case, only one attorney’s fee can be recovered in said action.</p> <p>(Syllabus by Ituinmons, 0.)</p>

<p>Error from District Court, Haskell County ; W. H. Brown, Judge.</p> <p>Action by H. L. Dalton against E. M. Hopper. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Muskogee County; Chas. G. Watts, Judge. Suit in (he justice court by W. E. Floyd against Levi Simons with an attachment, in which- Elina R. Simons interpleaded. There was a judgment in justice court in favor of plaintiff and against the interpleader, who appealed to the district court, wherein there was a directed judgment for plaintiff, and she brings error.

<p>Error from District Court, Payne County; John P. Hiclcam, Judge.</p> <p>Action by Lloyd Bowdlear against the City of Cushing. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Love County; W. F. Freeman, Judge. Proceeding by J. A. Simer, administrator of M. L. Mitchell, deceased, for distribution and settlement, opposed by Eunice Duncan, and from the order of thé county court J. G. Flatt, guardian, etc., appealed, and from the judgment of the district court the administrator brings error.

<p>1. Trusts — Constructive Trust — Sufficiency of Petition.</p> <p>The petition in this case examined, and held to state a cause of action, and it was error to sustain a demurrer thereto.</p> <p>2. Pleading — Conclusions of Law —' Inadequate Remedy at Law.</p> <p>'Where the allegations of a petition clearly show that the plaintiffs have no adequate remedy at law, it is unnecessary to allege the same.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>1. Insurance — Policy—Construction to Sustain Policy.</p> <p>When the wording of a policy of insurance is such as to be fairly open to construction, that view should be adopted, if possible, which will sustain, rather than forfeit, it.</p> <p>2. Appeal and Error — Variance — Amendment — Reversal. '</p> <p>Though there be a variance between the allegations of a petition and the facts proved on the trial, yet, if it be a' case where an amendment of the petition ought to be allowed to conform it to the facts proved, the judgment will not be reversed on account of such variance.</p> <p>3. Appeal and Error — Discretion of Trial Court — Amendment—Statute.</p> <p>Section 4790, Rev. Laws 1910, vests the trial judge with a broad discretion permitting amendments to be made when the amendment does not change substantially the claim or defense. The exercise of this discretion does not furnish ground for reversal, unless it is made to appear that there has been an abuse thereof by the trial judge.</p> <p>4. Insurance — Disability—Payment for Premiums — Waiver.</p> <p>A. N. I. C.. a. corporation, issued to Ray A. Rardin an insurance policy 'in the sum of $5,Q00, which, among other provisions, contained the following: The premium payments herein will cease immediately after the beginning of such disability as above described and will be resumed only as hereinafter provided. Held that, when the insured became totally disabled to engage in any gainful occupation, the requirements relative to the payment of premiums automatically ceased, and that the payment of a quarterly premium after the insured became" totally disabled so that he could not engage in any gainful occupation did not operate as a waiver of the clause which provided that said payments should immediately cease wlien said disability attached to insured.</p> <p>5. Same — Permanent Disability — Failure to Give Notice — Right to Benefits Under Policy.</p> <p>When a policy of life insurance provides that the insured shall give notice to.the company when he becomes totally disabled to engage in any gainful occupation, but does not specify any time within which said notice shall be given, the failure to give said notice will not deprive the - insured ■ or his beneficiary of the benefits of -said policy, in the absence of an express provision making the giving of the notice a condition precedent to the right to claim the benefits of said clause requiring notice.</p> <p>(Syllabus by Davis, C.)</p>

<p>Error from District Court. Jackson County; Frank Mathews, Judge.</p> <p>Action by W. A. Davern against the Wichita Falls & Northwestern Railway Com-jany. Verdict for plaintiff, motion for new trial denied oh condition of plaintiff’s remit-titur of certain amount, and judgment for plaintiff; and defendant brings error.</p>

<p>Execution — Sheriff’s Sale of Chattels — Title and Purchaser.</p> <p>A purchaser at a sheriff’s sale of chattels docs -not .take title to a specific’ article that was'not -included in the notice of sale and npt actually sold -by the sheriff at the sale- of the other property, levied on. although said article was included in the levy.</p> <p>(Syllabus by Stewart, O.)</p>

<p>1. Appeal and Error — Appealable Orders— Settlement of Casfe-Made.</p> <p>The order of the trial court settling a case-made is not .appealable, and objections thereto present nothing for. this court to confoder.</p> <p>2. Pleading — Trial — Answer — Inconsistent Defenses — Submission of Issues.</p> <p>While the defendant set out in his answer inconsistent defenses, yet the trial court is not warranted in submitting any issue to the jury which there is no evidence to support.</p> <p>3. Trial — Instruction—Statute of Frauds— Evidence.</p> <p>Where the defendant is sued on alleged original oral promise to repay money furnished to another at the instance and request of the defendant, and the only issue presented by the evidence is’ as to whether or not any promise at all was made, there being no evidence that such promise, if, made, was to answer for the debt, default, or miscarriage of another, the statute of frauds is not involved, and the court should not instruct the jury as to such statute.</p> <p>4, Trial — Instructions — Weight of Evidence.</p> <p>The court in its instructions to the jury, should not call attention to particular facts in evidence in such a manner as to amount to an intimation of the court's opinion as to the weight of the evidence.</p> <p>5. Evidence — Opinion and Conclusion — Argument.</p> <p>Where one of the parties to a cause is an attorney at law and takes the stand as a witness in his own behalf, he is governed by the same rules as any other witness, and should not be allowed by the court ro give opinions and conclusions or make argument while testifying, on the theory that he is an attorney and appearing for himself as such.</p> <p>(Syllabus by Stewart, C.)</p>

Error from District Court, Pottawatomie County; Chas. B. Wilson, Jr., Judge. Action by the Citizens’ Insurance Company against P. II. Adams and another. Demurrer to plaintiff’s evidence sustained, and judgment rendered for defendants, and plaintiff brings error.

Error from District Court, Washita County ; Jas. B. Cullison, Assigned Judge. Action by B. F. Davis against Park Bolon and by B. F. Davis against P. A. Janeway. administrator of the estate of W. H. Jacobs, deceased, and another. Judgment for' defendants, motion for new trial overruled, and plaintiff brings error.

<p>1. Officers — Authority—Exercise.</p> <p>Public officers hav¡e only such authority as is conferred upon, them by law, and such authority must be exercised in. Hie manner prescribed by law.</p> <p>2. Banks and Banking — “Reorganization”— Sale of Assets,</p> <p>A' state bank, being insolvent, was taken charge of by the Bank Commissioner. Thereupon -some of the stockholders of the insolvent bank organized a new bank, received a new charter under a new name, and proceeded to do a banking business under license of the State Bank Commissioner. The State Bank Commissioner transferred to the new bank the assets of the insolvent bank. Held, that the transaction did not constitute a reorganization of the insolvent bank Under section 306, Revised Laws 1910. but was an attempted sale of the assets of the insolvent bank to another banking corporation.</p> <p>3. Same — Power of State Banking Commissioner — Transfer of Assets of State Bank — Order of Court.</p> <p>The State Bank Commissioner has no power to sell and transfer the assets of a slate bank taken over by him except upon an order of the district court or a judge thereof. ...</p> <p>4. Same — Transfer of Assets — Title of Purchaser — Right of Action),</p> <p>An attempt by the- State Bank Commissioner to sell and transfer the assets of an insolvent bank, taken charge of by him. without an order of the district court or a judge thereof authorizing such sale, transfers no title to the assets so attempted to be sold and transferred to the purchaser, and such purchaser - cannot maintain an action upon a chose in action so attempted to be transferred.</p> <p>(Syllabus by Rummons, C.)</p>

Error from District Court, Mayes County; Charles G. Watts, Judge. Action: by Henry F. Hale, and Henry F. Hale ás executor of the estate of Cecelia A. Hale, deceased, against the Citizens’ Bank & Trust • Company of Pryor, Okla. Judgment for plaintiffs, motion fo-r new trial overruled, and defendant brings error.

<p>Error from District Court, Mayes County; Preston S. Davis, Judge.</p> <p>Suit by the Burnham-Munger-Root Dry Goods Company against Daisy B. Heath and another. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Beckham County ; E. G. McComas, Judge.</p> <p>Action by John Bauman against Carl C. Veach and wife. Judgment for defendants, and plaintiff brings error.</p>

<p>Judgment — Vacation—Jurisdiction of Court.</p> <p>’The county court is without jurisdiction, at a subsequent term, to take any steps toward vacating or modifying a judgment or order of the court, rendered at a• preceding term unless the provisions of sections 5267, 5269, Rev. Laws 1910, relating to the vacation and modification of judgments and orders, have been substantially complied with. An order made by the court at a subsequent term, vacating a judgment rendered •at a former term, without complying with •the conditions of the statute in regard thereto, is void.</p> <p>(Syllabus by Galbraith, C.)</p>

Error from District' Court, Rogers County; W. ,T. Campbell, Judge. Petition by Mary C. Lowe and others to vacate an order discharging Ott Caulk, ad.-ministrator of Judge K. Clingan, deceased, and an order determining heirship, and distributing estate to Fannie M. Caulk as sole heir at law. and an order in connection with the, appointment .of the administrator.

<p>Error from District Court, Love County; W. F. Freeman, Judge.</p> <p>Action by C. E. Morris and another against the Board of County Commissioners of Love County. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Five separate actions by the Union Savings Association against B. V. Cummins and others. Demurrer as to second and third grounds of reply sustained, and plaintiff in each action brings error.

<p>Error from District Court, Seminole County ; Tom D. McKeown, Judge.</p> <p>Action by the Chicago. Rock Island & Pacific Railway Company against Mace Hern-don, County Treasurer of Seminole County, Slate of Oklahoma. Judgment for defendant, and plaintiff brings error.</p>

<p>Bills and Notes — Collateral — Defenses— Remedy — Privity.</p> <p>S. & S. negotiated with G. S. & Co., for the purchase of a threshing machine on credit, hut were refused, unless they would procure farmers’ notes in a certain amount to attach to their own as collateral. Defendant executed and delivered to S. & S. his negotiable promissory note, which was, before due, indorsed over to G. S. & Co., and the threshing machine delivered. In a suit on the note by G. S. & Co., defendant set up the above facts, and' that, under an agreement between himself and S. & S., S. & S. were to thresh defendant’s crop of wheat, and attempted to do so, but that the machine sold by G. S. & Co., was so inferior that it would not do good threshing, and finally broke down, and was useless, and caused defendant damage in excess of the note. Held, this showing of facts did not constitute a defense to the note.</p> <p>(a) If the machine was not up to representations, or there was a breach of warranty, S. & S. alone could complain.</p> <p>(b) If S. & S. damaged defendant in tbe performance of a contract between them alone, to thresh the wheat, defendant’s remedy was against S. & S.</p> <p>(c) There was no privity between defendant and G.-S. & Oo. regarding the breach by S. & S. of their oral contract with defendant to thresh his wheat.</p> <p>(Syllabus by Brewer, 0.)</p>

Error from District Court, Pontotoc County; Robert M. Rainey, Judge. Action by Leeper Bros. Lumber Company against F. O. Harriss and Mamie Harriss. From an order overruling the motion of Mamie Harriss to recall and set aside an execution, Mamie Harriss appeals.

<p>Error from District Court, Coal County; J. H. Linebaugh, Judge.</p> <p>Action by Jack Taylor against C. C. Har-kins and others. Judgment for defendants, and plaintiff brings error.</p>

Error from • District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by E. P. Wallace, doing business as the Wallace Brokerage Company, against L. D. Clark & Son and others. Judgment for plaintiff in justice court, and on appeal to the district court judgment directed for defendants, and plaintiff brings error.

<p>Error- from District Court, Hughes County ; Geo. C. Crump, Judge.</p> <p>Action by M. M. Land against James W. Lusk and others, receivers of the St. Louis & San Francisco Railroad Company. Judgement for plaintiff, motion for new trial denied, and defendants bring error.</p>

Error from District Court, Muskogee County ; R. P. DeCraffenreid, Judge. Action for injunction hy Maggie Jay and others against the City of Muskogee, the Southern Surety Company, and others. Judgment for plaintiffs, its motion for neiw trial overruled, and the Southern Surety Company brings error.

Error from District Court, Atoka County: J. H. Linebaugh, Judge. Separate actions by the State of Oklahoma against Annie Temple and others, Adam Eh-('i-ley and others, and H. B. Temple and others, sureties on appearance bonds. Judgment for the State in each case, and defendants in each case bring error.

<p>Error from Superior Court, Potta-watomie County; Leander G. Pitman, Judge.</p> <p>Suit by the Union State Bank against J. C. Woodside. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from District Court. Muskogee County: Chas. G. Watts, Judge.</p> <p>Action by Emma T. Forster against Mary Ingram and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Bryan County; Jesse M. Hatchett, Judge. Suit by Susie Thompson, a minor and incompetent, by her guardian, E. A. McKinney, against W. G-. Clark and others. Judgment for defendants and plaintiff brings error.

<p>Trial — Last Clear Chance — Evidence—Instruction.</p> <p>In an action for negligence, it is reversible error to refuse requested instruction covering the law applicable to the doctrine of “last clear chance,” where the evidence admitted at the trial shows facts to which such doctrine is applicable, even though it is not raised by the pleadings.</p> <p>(Syllabus by • Summons, C.)</p>

<p>Application of William Holt for writ of habeas corpus.</p>

<p>1. Pleading — Counterclaim — Waiver of Objection.</p> <p>Where a counterclaim for damages on account of an alleged wrongful attachment is set up in the answer, the plaintiff, by filing a reply, thereby joins issue thereon, and waives the objection that such damages were not proper subjects for counterclaim in the action.</p> <p>2. Jury — Right- to Jury Trial — Statute — Civil Action.</p> <p>In civil actions under the Code, the' right to a trial by jury is governed solely by section 4993, Rev. Laiwg 1910, and the distinction heretofore existing between law actions and suits in equity is immaterial in the determination of thig right. When the pleadings disclose' that an issue of fact has arisen in' any civil action for the recovery of money, or of specific real or personal property, such issue must be tried by a jury, unless a jury is waived or a reference ordered, as provided by other provisions of the. Code. Childs et al. v. Cook et al., 68 Okla. 240,. 174 Pac. 274.</p> <p>(Syllabus by Galbraith, C.)</p>

<p>Error from District Court. Carter County ; W. F. Freenian, Judge.</p> <p>Action by Thomas Graham against It. H. Chowning. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from County Court, Caddo County; ('. R. Johnston, Judge.</p> <p>Action by John D. Pugh against B. S. Dixon and Clyde Thompson. Judgment for plaintiff, and defendants bring error.</p>

<p>1. Carriers — Passenger Elevator — Care Required.</p> <p>The owner of passenger elevators owes to the passengers using the same the highest degree of care, vigilance, and precaution.</p> <p>2. Landlord and Tenant — Passenger Elevator — Injury—Liability.</p> <p>Where the owner of a building leases different floors or rooms to different tenants, but retains control and management of the elevators in the building, he is responsible for injuries to tenants, their employes, and such other persons as may be lawfully using the same, where the injuries are due to the negligent management, operation, or use thereof.</p> <p>2. Control of Passenger Elevator.</p> <p>But in such case, if the elevator is in the absolute control of the tenant, the owner is not liable. The evidence examined, and held, same insufficient to sustain the contention that the elevator was in the ab-soluté control of the tenant.</p> <p>(Syllabus by Hooker, C.)</p>

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by H. C. Sullivan, trustee, and the Guaranty State Bank, against the Hartford Fire Insurance Company, and Insurance Company of North America. Judgment for plaintiffs, and defendants bring error.

<p>1. Rep'evin — Damages.</p> <p>Where personal property has a distinct usable value, the same may be recovered as damages for the detention under section 4807, Rev. Laws 1910, in an action of replevin.</p> <p>2. Same — Special Damages — Pleading.</p> <p>A general allegation of damages in' a petition in' replevin is sufficient to authorize a recovery' of such damages as are the natural and immediate consequence of the wrongful acts of defendant complained of, such as damages for the value of the use of the property while wrongfully detained .by .defendant;, but special, damages cannot be recovered .unless specially - pleaded,, such as damages for an injury to the property while in defendant’s .possession.</p> <p>8. Same — Damages—Insufficiency of Evidence.'</p> <p>Evidence of' this case examined, and the same, as well as all inferences to be drawn thererrom. does not reasonably support the verdict.</p> <p>(Syllabus by Hooker, 0.)</p>

<p>Error from District Court. .Okmulgee County; Ernest B. Hughes, Judge.</p> <p>Action by Taylor Hardridge - against Frank E. Lamb, M. M. Alexander.- and others, to recover realty and to quiet title, with answer and cross-petition by defendant Alexander, and answer thereto by defendant ‘ Lamb. Judgment for defendants against plaintiff, motion by defendant Lamb to strike the answer and cross-petition of defendant Alexander, and demurrer thereto overruled, and judgment for defendant Alexander as against defendant Lamb, and the latter brings error.</p> <p>This action was commenced on the 2d clay of June, 1913, in the district court of Okmulgee county, by Taylor Hardridge against Frank F. Lamb and M. M. Alexander and others, to recover certain real estate lying in said county, and to. have title thereto quieted against the defendants.</p> <p>The petition of the plaintiff, Taylor Hardridge, asks not only for the possession of the premises involved in said suit, but also asks that the various defendants therein claiming interest in said premises he summoned to come into-, court and set up the nature of their claims.</p> <p>On the 3d day of December, 1913. the defendant Alexander filed his answer and cross-petition wherein he claimed that he was the owner of an undivided one-half interest in and to the south 30 acres of the northeast quarter of the northwest quarter of section 27, township 15 north, of range 14 east, same being a .portion oí the lands set oUt in plaintiff’s petition'; that legal title to. the same -was in Frank E. .Lamb, his codefendant, however the said Lamb" held said property in trust for himself and 'the defendant Alexander; that the said Alexander and Lamb acquired title to the said land from Eli Hardridge through -and by virtue of a contract of employment as attorneys to render legal services to the said Eli Hardridge in an action for' the partition of certain lands in Okmulgee county, of which this 30 acres was a. part; that -the-action for the partition of said land by Eli Hardridge was successful, and this 30 acres was deeded to. Frank F. Lamb in pursuance to the contract of employment in trust for the use and benefit of Lamb and Alexander-; and further that, 'by reason of a contract of dissolution of partnership between Lamb and Alexander, Lamb agreed to hold ia trust said lands and conveyed an undivided one-half interest to Alexander. The defendant Lamb in his answer denies the contentions of his eodefendant 'Alexander, as set forth in his answer and cross-petition, and claims that the said Alexander has no interest in said land, and that the said Alexander abandoned his contract of .employment with Eli Hardridge' by rendering no services thereunder.</p> <p>On the 13th day of March, 1914, the regular judge, Wade S. Stanfield, suggested his disqualification, and there was a journal entry entered on that date showing that the said ' judge was disqualified, and the attorneys of all parties agreed that Ernest B. Hugli'es should try said cause;' and if; was so ordered in said journal entry. On the same day the cause came on for hearing before special judge, Ernest B. Hughes, as to the issues between plaintiff and defendants, and'judgment was rendered for defendants and against plaintiff.</p> <p>On the- 16fh day of March, 1914, the defendant Lamb filed a motion to .strike, the answer and cross-petition of the defendant-. Alexander for the reason that the same was not germane to the cause of action alleged, in the plaintiff’s petition, and the court had no jurisdiction to hear the same. On‘the 19th day of November, 1914, this motion was by the court, Judge Stanfield sitting,' overruled, to which the defendant Lamb excepted. And on the same day the said defendant Lamb filed a demurrer to the an swer and cross-petition of the defendant Alexander which was by the court overruled. and'to which ruling of the court defendant Lamb excepted.</p> <p>On the 4th day of December, 1914, upon motion of the defendant Alexander, notice having' been _ served upon the defendant Lamb of said motion and hearing thereof, the court, Judge' Stanfield sitting, made and entered a nunc pro tunc order correcting the journal entry showing the disqualification of Judge Stanfield, making the journal entry show that the order of disqualification only extended to the issues .between the plaintiff and defendants, and not as to the issues between the codefendants. To this nunc pro tunc order there were no exceptions taken by defendant Lamb.</p> <p>On the 19th day of June, 1915, the issues between .defendants Lamb and Alexander were tried by Judge Hughes, successor of Judge Stanfield. . There was judgment for Alexander, and Lamb appeals.</p>

Error from District Court, Oklahoma County; George W. Clark, Judge. Action by B. F. Clutter against Oliver N. Clutter, administrator of the estate of Jesse L. Clutter, deceased, and the United' States Fidelity & Guaranty Company, as surety on the administrator’s bond. Judgment for plaintiff, and defendant United States Fidelity & Guaranty Company brings error.

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by the Alliance Trust Company against David A. Jackson and others to foreclose a mortgage securing a series of notes hearing 6% per cent, interest to be increased to 12 per cent, on default of pay ment at maturity. Erom a judgment rejecting the increased rate of interest, plaintiff brings error, and certain of the defendants bring cross-error.</p>

Error from District Court, Noble County; W. M. Bowles, Judge. Leona Tilman (now Leona Cox) filed exception in the county conrt to the final report of John F. Tilman, her guardian, and sought an accounting. In the county court the guardian’s reports were modified, by disallowing certain charges, and there was judgment accordingly, and the guardian appealed to the district court, and from its judgment, the exceptant brings error.

Error from District Court. Payne County; Tames B. Cullison, Assigned Tudge. Action by Ollie E. Vance against the Massachusetts Bonding & Insurance Company. Judgment for plaintiff, motion for new trial overruled, and defendant brings error.

Error from District Court, Stephens County ; Cham Jones, Judge. Foreclosure action by the American Investment Company against B. I. Brewer, David H. Spain, a minor, and others, with cross-petition by T. H. Reeder, guardian ad litem of David O. Spain, minoi'. Judgment for the minor on the cross-petition, and plaintiff brings error.

<p>1. Indians — Control of Estates — Special Legislation.</p> <p>The estates of members of the Osage Tribe of Indians are governed by special legislation, and the provisions of general legislation do not apply.</p> <p>2. Guardian and Ward — Guardian of Min- or Allottees — Power of County Court to Appoint.</p> <p>The office of a proviso in an act is to conditionally suspend the operation of an antecedent clause, and does not create an affirmative condition, nor defeat the operation of one already in existence.</p> <p>(Syllabus by Springer, C.)</p>

Error from District Court, Wagoner County; Chas. G. Watts, Judge. W. M. Briscoe, as administrator of the estate of Fanny Jameson, deceased, filed a petition to sell her allotment to pay claims against the estate and cost of administration, to which Dinah Jameson filed a pr >- test. Decree of sale made and protestant, Dinah Jameson, appealed to the district court, and from its affirmance of the action of the county court she brings error.

Error from District Court, Nowata County; W. J. Campbell, Judge. Suit by Alice Holbert and another against Ed. R. Patrick and another to vacate a judgment. From an order overruling a motion to set aside an order sustaining- a demurrer to the petition, plaintiffs bring error.

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by N. C. Ward, as administrator, against Belle Ward and others. There was judgment for the defendants, and plaintiff brings error.

<p>Error from District Court, Atoka County; Tom D. McKeown, Judge.</p> <p>Action by J. S. Fulton against Salina Colbert and others. Judgment for plaintiff, and defendant named brings error.</p>

Error from District Court. Lincoln County; Chas. B. Wilson, Jr., Judge. Action by F. A. Amsden, doing business as the Prague Lumber Company, against H. J. Johnson and others. Judgment for defendants, and plaintiff brings error.

Error from District Court, Cotton County; Cham Jones, Judge. Action for divorce by Helena Linkugel against Frank W. Linkugel. Decree for plaintiff granting an absolute divorce, permanent alimony, custody of a minor child, its support, and counsel fees, and defendant brings error.

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by E. P. McCormick against Mary D. Kreager and Lorenzo Grier. Judgment for the plaintiff, and defendants bring error.</p>

<p>1. Master and. Servant — Action for Injuries from Negligence of Fellow Servant — Necessary Allegations of Petition.</p> <p>In an action by a servant against his master for injuries caused by the negligence of a fellow servant, the petition must aver that the fellow servant was incompetent for or unskilled in the work in which he was engaged, and that the master negligently employed or retained him with knowledge, actual or constructive, of his incompetency or unskillfulness, that the plaintiff was ignorant thereof, and that the injury was caused by the negligence of said servant.</p> <p>2. Same — Burden of Proof.</p> <p>In an action by a servant against his master for injuries received by the negligence of a fellow servant, the burden is on plaintiff' to prove that the fellow servant was incompetent or unfit to perform the work in which he was engaged, and that the master was negligent in employing him or retaining him-after discovering his incompetency or unfitness, and that the injury complained of was the result of or caused by such incompetency or unfitness. ' ■</p> <p>3. Same — Care of . Master in Selection of Fellow Servants.</p> <p>The law imposes upon a master the duty to exercise reasonable care, such care only as men of reasonable and ordinary prudence exercise, in the selection and retention of servants, and when he has discharged this duty, he cannot be held responsible for injuries resulting from the negligence of the servants so selected, in an action by a servant against him for injuries resulting from the negligence of a fellow servant.</p> <p>4. Appeal and Error — Review—Verdict—Insufficiency of Evidence.</p> <p>It is the established rule in this state that, where there is any evidence that reasonably tends to support the verdict, it will not be disturbed on appeal; but, where there is an entire failure of any evidence to support the verdict, the verdict and judgment will be set aside.</p> <p>(Syllabus by Davis, C )</p>

<p>1. Constitutional Law — “Due Process of Law.”</p> <p>By "due process of law” is meant an orderly proceeding, adapted to the nature of the case, before a tribunal having jurisdiction, which proceeds upon notice, with an opportunity to be heard, with full power to grant relief.</p> <p>2. Same — Fourteenth Amendment — limitation on States.</p> <p>The Fourteenth Amendment to the federal Constitution is not a limitation upon the rights of the several states exercising such powers as are political and legislative in their nature, and does not control the procedure affecting the rights of citizens, so long as the fundamental principles which inhere in due process of law are observed.</p> <p>3. Municipal Corporations — Determination of Necessity to Pave Street — Notice.</p> <p>The powers conferred upon the city officials by section 7, art. 10, of the Constitution of this state, and section 723, Snyder’s Oomp. Laws 1909, to determine whether a certain street shall be paved, being political and legislative in its nature, a citizen whose property rights are affected thereby is not entitled to a notice and hearing before determining to make the improvement on the question of whether his property will be benefited thereby.</p> <p>4. Constitutional Law — Municipal Corporations — Paving Streets — Hearing—Notice —Due Process of Law.</p> <p>Section 726, Snyder’s Comp. Laws 1909, providing for a notice and hearing before the city officials, with full power to grant relief, meets all the fundamental requirements inhering in due process of law; and where a protest and objection is filed as therein provided for, it is the duty of the city officials to hear and determine the same, and not act arbitrarily and capriciously.</p> <p>5. Municipal Corporations — Protest to Pavement of Street — Insufficiency.</p> <p>An objection filed with the city officials upon the ground the property of the objector is not benefited is not' such as is contemplated by the statute; that question being peculiarly the prerogative of the city officials' under the law.</p> <p>6. Same — Abutting Owner not Making Protest — Estoppel.</p> <p>A person with knowledge that paving is being done with the intention of levying a special tax upon his property abutting thereon to pay for the same, and knowingly receiving the benefits, without making proper protest to the city officials, will be deemed to have ratified and accepted such benefits, and is estopped to deny the same, except he may invoke equitable relief, where there has been irregularity extending to jurisdiction.</p> <p>7.Same — Injunction Against Excessive Assessment — Insufficient Petition.</p> <p>A petition for injunction against an excessive assessment for paving, which fails to allege the amount of benefit and confessing a willingness to pay for the same, if any part of the assessment against the owner’s land is valid, fails to state a cause of action calling for injunctive relief.</p> <p>(Syllabus by Springer, 0.)</p>

<p>Error from District Court. Tillman County; T. P. Clay, Assigned Judge.</p> <p>Action by the Hart-Parr Company against Joseph T. Duncan. From an order discharging an attachment, plaintiff brings error.</p>

<p>1. Appeal and Error — -Continuance—Discretion of Court.</p> <p>The granting or refusing of a motion for a continuance is a matter addressed to the sound discretion of the court; and, in the absence of the abuse of such discretion, its action will not be disturbed on appeal.</p> <p>2.- Master and Servant — Petition—Injury to Servant — Violation of Statute.</p> <p>A petition, which charges a violation of the Factory Act and sets out the particulars constituting such violation and alleging that the injuries received are the direct and pr. ximate result of negligence in failing to comply with said act, states a cause of action that is good against a general demurrer,</p> <p>3. Trial — Demurrer to Evidence — Overruling.</p> <p>When a demurrer is interposed to the evidence of plaintiff and there is competent evidence reasonably tending, to support the allegations of the petition, it is not error to overrule such demurrer.</p> <p>4. Trial — Direction of Verdict — When Proper.</p> <p>When a motion is made at the close of the evidence by the defendant for a directed verdict, it presents to the trial court the question whether, admitting the truth -of the evidence, which has been given in favor of the plaintiff, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting, and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving for consideration that evidence' which is favorable to the party against whom the motjon is leveled. If, upon such consideration, there appears to be sufficient evidence to support a verdict for the plaintiff, it is not error to overrule the motion to direct a verdict for the defendant.</p> <p>5, Appeal and Error — Reservation of Exceptions — Form.</p> <p>In order to have an instruction reviewed on appeal, it is necessary to except to said instructions and have said instruction signed by the trial judge, and' an exception taken to written instructions in the following form: “By Mr. Sutton: The defendant objects and excepts to instructions %, 3, 4, 5. 6, 7, 8, 10, and 13, given to the jury” is too general and not sufficient exception under section 5003, Rev. Laws 1910, to bring before this court for review any particular instruction.</p> <p>6. Damages — Excessiveness — Injury to Servant.</p> <p>The verdict examined in this -case, and held not to be so excessive as to warrant a reversal of this cause, or to require this court to order a remittitur to be made.</p> <p>(Syllabus by Daviy, O.)</p>

<p>Appeal from District Court, Oklahoma County; Edward D. Oldfield, Judge.</p> <p>Action by the City National Bank against the Madill Oil & Cotton Company. Judgment for plaintiff, and defendant appeals.</p>

<p>1. Fraudulent Conveyances — Transfer of Personal Property — Validity.</p> <p>A transfer of personal property, to be valid under section 2897, Bev. Laws 1910, must be accompanied by an actual and continued change of possession, which must be open, notorious and unequivocal, and such as to apprise the community and those who deal with the party that the goods have changed hands, and the title thereto has passed from rhe vendor to the vendee.</p> <p>2. Same — Necessity for Change of Possession.</p> <p>Mere knowledge or notice of a transfer of personal property capable of manual delivery, unaccompanied by a change of possession, will not prevent an existing bona fide creditor from seizing said property upon attachment or execution.</p> <p>3. Same — Recorded Bill of Sale not Constructive Notice.</p> <p>In the absence of a statute directing a bill of sale to be recorded, the same, when recorded, does not afford constructive notice.</p> <p>4. Same — Growing Crops — Delivery.</p> <p>' Growing crops are chattels, not susceptible of manual delivery until harvested, and are not “in the possession or under the control of the vendor,”- within the meaning of the statute requiring an immediate delivery and continued change of possession; hut, when the crop is harvested, it is the duty of the vendee to take possession and to retain the same.</p> <p>(Syllabus by Hooker, C.)</p>