Volume 77 — Oklahoma Reports

<p>Error from District Court, Lincoln County; Hal Johnson, Judge.</p> <p>Action between M. M. Watson and H. G. Shaffner and another. From the judgment, Watson brings error.</p>

Actions by Robert S. McConkey against Roger McKone and wife, and by Leopold Knebel against Roger McKone and wife. Judgment for plaintiffs, and defendants bring error. Error from District Court, Kingfisher County; James B. Cullison, Judge.

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action-by H. T. Hunt against A. B. Mays & Company, a copartnership, and another; the First State Bank of Ringling, garnishee. Judgment for plaintiff, and the garnishee brings error.</p>

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by the H. W. Johns-Manville Company against Lohr & Srapnell and others. From judgment for plaintiffs, the defendants bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Consolidated actions by W. W. Boyd against W. F. Harn and Alice Ham, his wife. Judgment for plainiiff, and defendants bring error.

<p>Error from District Court, Washita County; James R. Tolbert, Judge.</p> <p>Action by J. W. Bratcher against H Ger-nert and another. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Tulsa County; Con Linn, Judge. Action between M. B. Cavanaugh and others and M. E. Cull and others. From the judgment, the parties last named bring error.

Error from District Court, Grady county: Will Linn, Judge. Action by W. P. Jones against E. B. Johnson and others, as principal and sureties on an attachment bond. Judgment for sureties on demurrer to evidence, and plaintiff-brings error.

<p>Error from District Court, Garfield County; J 0. Robberts, Judge.</p> <p>Action by Geo. G. Bowen against M. C. Garber, as mayor of the city of Enid. Judgment for defendant, and plaintiff brings error.</p>

<p>Error from Superior Court, Pottawatomie County; Leander G. Pittman, Judge.</p> <p>Action by T. C. Bonner against Chicago,, R. I. & P. R. Co. et al. From judgment for defendants, plaintiff brings error.</p>

<p>From the District Court, Wagoner County; Ernest B. Hughes, Judge.</p> <p>Action by Laura Hymes against General Accident, Fire and Life Assurance Corp., Ltd. From” judgment for plaintiff, defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Demurrer to Evidence— Motion for New Trial — Necessity.</p> <p>Where a party interposes a demurrer to evidence which is overruled, stands upon the demurrer, and judgment is rendered against him, a motion for a new trial must bo filed in order for the Supreme Court to review the evidence adduced in the trial court.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review — Equity Case.</p> <p>In an equity case it is within the power of the Supreme Court to consider the evidence and render judgment thereon, but the rule is well established that the Supreme Court will not interfere with the judgment of the lower court, unless the same is clearly against the weight of the evidence.</p> <p>2. Vendor and Purchaser — Misrepresentations — Inspection of Property.</p> <p>Where the means of knowledge are at hand and equally available to both parties, and the subject of purchase is alike open to their inspection, if the purchaser does not avail himself of these means and opportunities, he. will not be heard to say that he has been deceived by the vendor’s misrepresentations. If, having eyes, he will not see matters directly before them, where no concealment is made or attempted, lie will not be entitled to favorable consideration when be complains that he has suffered from his own voluntary blindness and been misled by over-confidence in the statements of another.</p> <p>3. Same — Cancellation of Instruments — Evidence.</p> <p>Evidence examined, and held that, the judgment of the trial court not being clearly against the weight of the evidence, the refusal to grant the equitable relief prayed for will not bo disturbed.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge.' Mandamus by the State on the relation of Thomas H. Owen against F. C. Carter, State Auditor. Judgment for respondent, and relator brings error. Reversed.

Mandamus by the State, on the relation of Baxter Taylor, against F. C. Garter, State Auditor. Judgment for relator, and respondent brings error. Affirmed. (All members of the Supreme Court having certified their disqualifications in the case, the following were duly appointed and qualified as Special Justices: N. A. Gibson, H. A. Ledbetter, Ralph E. Campbell, J. G. Ralls, Horace G. Mc-Keever, J. A. Duff, Philos S. Jones, R. H. Loofbourrow, and Jason G. McCombs.)

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by W. H. Henkle and another against J. M. Van Winkle. Judgment for plaintiffs, and defendant brings error.</p>

Error from District Court, Pontotoc County ; J. W. Bolen, Judge. Action by Walter B. Winters, by his next friend, J. M. Daggs, against the Oklahoma Portland Cement Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Atoka County; Robt. M. Rainey, Judge.</p> <p>Action by Roland M. Elred against the National Lumber & Manufacturing Company. From judgment for plaintiff, defendant brings error.</p>

<p>Error from District Court, Osage County; R. B. Boone, Judge.</p> <p>Action by Emmett Tayiah against Maude A. Bunnell. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Garvin County; F. B. Swank, Judge. Action by M. G. Stanton against Lon L. Moore and another; Charles M. Langdon and others, interveners. Judgment for plaintiff, and defendants and interveners bring error.

Error from District Court, Okfuskee County ; Geo. C. Crump, Judge. Petition by Josiah Brown and Katie Brown for removal of D. W. Johnson as guardian of Katie Brown. From order of district court so removing him, Johnson brings error.

<p>Error from District Court, Comanche County; J. T. Johnson, Judge.</p> <p>Action by Bert Montague against the Chicago, R. I. & P. R. Co. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Noble County; W. M. Bowles, Judge.</p> <p>Action by A. B. White against Louise Kroe-ger and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Woodward County; J. O. Robberts, Judge.</p> <p>Action by J. F. Gettig against the Citizens State Bank of Vici. Judgment for plaintiff, and defendant brings error.</p>

■ Error from the District Court, Noble County; W. M. Bowles, Judge. Action by A. B. White against Louise Kroe-ger and others. Judgment for defendants, and plaintiff brings error.

S. Pendleton, County Judge. Action by the State, on the relation of J. Warren Davis, executor of will of Harriet H. Nichols Cook, deceased, and ancillary administrator thereof, against Wm. Beatty, pretended special judge of Pottawatomie County Court, and others, for writ of prohibition.

<p>(Syllabus -by the -Court.)</p> <p>1. Drains — Action by Landowner for Damages — Parties.</p> <p>In an action by a landowner within a drainage district against the drainage district, the drainage commissioner is a necessary party defendant.</p> <p>2. Same — Statutory Procedure for Cleaning Out and Repairing Drains.</p> <p>Where a person’s lands are included in the drainage district, and he deems it necessary to have said drainage ditch cleaned out or repaired, he must follow the procedure set forth in section 3009, Rev. Laws 1910, which provides for filing a written notice with the county commissioners of said county; and if he fails to comply with the provisions of said section of the statute, he cannot maintain an action for damages against the district for their failure to clean out said drain or ditch.</p> <p>3. Same — Liability of Drainage Districts to be Sued.</p> <p>The general rule is that drainage districts can neither sue nor be sued unless provided by statute.</p> <p>4. Same — Liability of Drainage Commissioners.</p> <p>The procedure for cleaning out and repairing a drainage ditch is prescribed by sections 3009 and 3010, Rev. Laws 1910, and the power and authority to repair and clean out a drainage ditch is not conferred on the drainage commissioner of the district under and by virtue of section 2976, Rev. Laws 1910; therefore, no such authority or power being conferred on him, such drainage commissioner is not liable individually for failure to clean out or repair said drainage ditch.</p> <p>5. Same — Assessment .flor Benefits — Relief by Injunction — Remedy by Appeal.</p> <p>Where the commissioners of a drainage district have, by pursuing the provisions of the Drainage Act (section 2959-3023, Rev. Laws 1910), acquired jurisdiction to make assessments against property in the district for benefits, and the property owners have been given notice of a hearing on said assessments, as provided by statute, and have had an opportunity to be heard upon their objections thereto, such property owners cannot be heard to say in a proceeding for injunction that the assessments levied by the commissioners are greater than the benefits received, or are not in proportion to those levied upon other property receiving corresponding benefits, because such property owners have, by reason of section 2979, Rev. Laws 1910, an adequate remedy by appeal.</p>

<p>Error from District Court, Kay County; W. M. Bowles, Judge.</p> <p>Action by John Graney against the Midland Valley Railroad Company. From judgment for plaintiff, defendant brings error.</p>

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by E. Boysen against Armstrong Music Company and others. Judgment for plaintiff, and defendants appeal.</p>

Error from District Court, Wagoner County; Chas. G. Watts, Judge. Action by George Jumper and others for writ of mandamus against Victoria Lyles, County Superintendent of Public Instruction of Wagoner County. Judgment for defendant, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>1. Statutes — Construction—Validity.</p> <p>In construing a statute to ascertain if the same be in violation of the Constitution, if the proper construction is doubtful, this doubt must be resolved in favor of the law, though such construction may not be the more natural interpretation of the language used.</p> <p>2. Same — Punctuation.</p> <p>A court will disregard punctuation of a •statute or repunctuate it, if need be, to give effect to what otherwise appears to be its purpose and true meaning.</p> <p>3. Same — Validity of Statute.</p> <p>Where an act is susceptible of two constructions one of which will uphold the constitutionality of the act, a court must adopt that construction which will uphold the law, and this the court must do if it be in doubt as to which construction to follow.</p> <p>4. Same — Reasonable and Just Interpretation.</p> <p>If there is a doubt or ambiguity in a statute, it is the duty of a court in interpreting the same to give to it the most reasonable and just interpretation as the legislative intent, rather than an interpretation unreasonable, unjust, or one that will lead to an absurdity.</p> <p>■5. Taxation — Private Sale — Public Sale.</p> <p>Section 5 of chapter 130 of the Session Laws of 1919 construed, and held that the proviso therein. “that in no event shall the county be liable to the state or any taxing district thereof or to any special assessment lienholder for any part of the amount for which any such property may be sold” refers to the private sale to be made by the county treasurer to be approved by the board of county commissioners as provided in said section, and not to the sale at public auction to the highest bidder provided therein.</p> <p>6. Taxation' — Power of State to Cancel Tax.</p> <p>It is within the sovereign power of a state to subject all the property situated therein and not otherwise exempt to taxation. The state is obligated to exercise the utmost good faith to collect the taxes on property necessary to liquidate the securities of its municipalities. When, however, the tax charge against property is in excess of its value, a state may, within the exercise of its sovereign power, after the exercise of good faith to collect the delinquent taxes due thereon, cancel or set aside such delinquent taxes or any portion of same and place the property upon the tax rolls and thus make it help bear the burdens of government.</p> <p>7. Taxation — Time of Sale.</p> <p>Section 5 construed, and held that the county treasurer must commence the sale between the hours mentioned therein, but the sale may be continued from day to day between the same hours until the sale is completed.</p> <p>8. Same — Tax Deed — Effect to Cancel Taxes.</p> <p>Section 6 construed, and held that a tax deed issued as provided therein cancels and sets aside all taxes, which includes ad va-lorem and. paving taxes delinquent at the time the sale was made at which the property was •bid off by the county treasurer in the name of the county, and referred to in the first part of article 3, chap., 130, supra, amending section 7409 of the Revised Laws of 1910.</p>

Error from District Court, Jefferson County; Will Linn,- Judge. Motion by C. S. Wade to vacate order overruling motion for new trial. From a judgment in favor of Hope & Killingsworth, adverse, parties striking motion from the files and denying the relief prayed, Wade brings error.

<p>(Syllabus by the Court.)</p> <p>Carriers — Demurrage—Oil Tank Cars.</p> <p>Record examined and held: (1) That in the circumstances of this case privately owned oil tank cars are not subject to de-murrage under rule 1, item A, of order No. 167, of the Corporation Commission, until they are so placed by the carrier that they can be loaded or unloaded at the racks erected for that purpose upon and along the industrial side-track of the shipper. (2) That the complaint filed herein, there being no dispute as to the facts, was sufficient to confer jurisdiction upon the Corporation Commission to render the relief granted by the order appealed from.</p>

<p>Error from District Court, Carter County; H. A. Ledbetter, Special Judge.</p> <p>Action by Gerald F. Mobley, by his guardian, Tennie Mobley, against George T. Rhoades and others. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Pittsburg County; R. W. Higgins, Judge.</p> <p>Action by J. J. McAlester against Sol Williams. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>I. Drains — Petition for — Sufficiency—Jurisdiction.</p> <p>The petition required to be filed with the board of county commissioners by section 3046, Comp. Laws 1909, must describe said district so that the aggregate acres may be ascertained from an examination of said petition.</p> <p>fa) Such petition is essential to tlie acquiring of jurisdiction by the board of county commissioners.</p> <p>2. Same — Assessments—Validity.</p> <p>Where in proceedings for the levy of special assessments, as under section 3046, Comp. Laws 1909, the local authorities act without jurisdiction from the beginning, one whose property is benefited by -the improvement may deny the validity of the proceedings, although he made no objection while the work was in progress, although after jurisdiction is acquired he might be estopped -to question mere irregularities.</p>

<p>(Syllabus by the Court.)</p> <p>1. Trial — Demurrer to Evidence — Effect.</p> <p>It is a well-settled rule that a demurrer to the evidence admits all the facts which the evidence in the slightest degree tends to prove and all inferences or conclusions that may be reasonably and logically drawn from the evidence.</p> <p>2. Limitation of Actions — Recovery of Land —Statute Applicable.</p> <p>In an action by plaintiff for the recovery of real-property in the possession of defendants, plaintiff asked for cancellation of a deed thereto, and for other relief. Defendant in-interposed the 2-year statute of limitations in bar of plaintiff’s right of recovery. Held, that the primary purpose of the action was the recovery of the possession of the land, and the other grounds of relief were but incidental thereto; that, such being the case, the 15-year statute of limitations, as found in the fourth sub-division of section 4655, Rev. Laws 1910, fixes the period within which such action may be brought.</p> <p>3. Judgment — Res Adjudicata.</p> <p>In order to make a matter res adjudicata, there must be a concurrence of the four conditions following, namely: (1) Identity in the thing sued for (or subject-matter of the suit) ; (2) identity of the cause of action; (3) identity of persons'or parties to the action; (4) identity of the quality in the persons for or against whom the claim is made.</p> <p>4. Limitation of Actions — Recovery of Land —Fraud—Damages—Sufficiency of Evidence.</p> <p>Record examined and held, that the trial court committed error in sustaining the defendants’ demurrer to the evidence of the plaintiff; judgment reversed, and cause remanded for new trial.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appearance — Special Appearance — General Appearance.</p> <p>Where a defendant appears specially and objects to the jurisdiction of the court for the reason that the action has been brought in a county other than where the defendant resides, by fraudulently making another party defendant, who resides in the county where the action is brought, and the motion to quash and dismiss the action is overruled, the defendant may file his answer and proceed to trial, and this will not be held a general appearance, but where, in his answer, he asks affirmative relief, it is a general appearance, and he thereby waives all objections to the service of the summons, and subjects himself to the jurisdiction of the court for all purposes.</p> <p>2. Trial — Demurrer to Evidence.</p> <p>The test applied to a demurrer to the evidence is that all the facts which the evidence in the slightest degree tends to prove, and all inferences or conclusions which may be reasonably and logically drawn from the evidence, are admitted. The court cannot weigh conflicting evidence, but must treat the evidence as withdrawn which is most favorable to the demurrant.</p>

<p>(Syllabus by the Court.)</p> <p>Master and Servant — Workmen’s Compensation Law — Notice of Injury.</p> <p>Record examined, and held: That the failure to give notice of injury, within the time required by section 2, chap. 246, of the Workmen’s Compensation Law, having been properly excused by the Industrial Commission pursuant to another part of the same section, was not a bar to respondent’s claim.</p>

<p>Error from District Court, Okmulgee County ; Ernest B. Hughes, Judge.</p> <p>Action by Yanhoy Grayson and others against William Thompson. Judgment for defendant, and plaintiffs bring error.</p>

Error from District Court, Stephens County; Cham. Jones, Judge. Action by Marie Buss, administratrix of the estate of John Buss, deceased, against the Chicago, Rock Island & Pacific Railway Company for damages. Judgment for defendant on demurrer to plaintiff’s evidence, and plaintiff' brings error.

<p>Error from District Court, Creek County; M. L. Bozarth, Judge,</p> <p>Action between Charlotte Hunter and Gordon C. Hughes and others. From the judgment, Hunter brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Contracts —■ Construction — Language of Contract.</p> <p>The language of a contract is to govern its interpretation, if the language is clear and explicit and does not involve an absurdity, and the whole of such contract is to be taken together so as to give effect to every part, if reasonably practicable, each, clause helping to interpret the others, and the words to be understood in their ordinary and popular sense, unless used by the parties in a technical sense.</p> <p>2. Same — Oil and Gas Lease — Rule of Ejus-dem Generis.</p> <p>By the rule of ejusdem generis, where general words follow the eniumeration of particular classes of minerals, the general words will be construed as applicable only to min-erais of the same general character or class as those enumerated.</p> <p>3. Contracts — Construction — Intent of Parties.</p> <p>However broad may be the terms of a contract, it extends only to those things concerning which it appears that the parties intended to contract.</p>

<p>(Syllabus by the Court.)</p> <p>Divorce — Alimony—Construction of Decree.</p> <p>Section 4969, Rev. Laws 1910, authorizes and empowers the district court in a divorce action where the wife sues the husband for divorce, the custody of their minor child, and for permanent alimony, and where the wife was granted a divorce on account of the aggression of the husband and awarded the exclusive custody of their minor child, and the court awarded to the wife as permanent alimony the undivided one-half interest of the husband in a tract of land owned by them' jointly for the support of herself and the minor child, held, that the wife took all the title of the husband in and to said land and her deed to the same, made to the plaintiffs after said decree became final, conveyed the land to the plaintiffs free from all claims of said minor child for support and maintenance.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Moot Questions — SMs-missal — Mandamus.</p> <p>Wherein an appeal by a policeman in a mandamus proceeding instituted by him against the city or corporation clerk of the city of El Reno, it is made to appear to this court that such corporation clerk has retired from office, and no actual relief could be granted other than to determine liability for costs, the questions^ presented by such appeal are moot, and will not be determined, but the appeal will be dismissed.</p> <p>2. Parties — Mandamus Against City Officer —Right to Substitute Successor.</p> <p>An action -against a city clerk to compel her to issue a warrant on the city treasury is against her personally to compel a performance of an official act, and on the termination of her official authority her successor cannot be substituted.</p>

Error from County Court, Oklahoma County ; William II. Zwick, Judge. Appeal from taxation proceedings to the countv court. From the judgment J. L. Wilkin, as guardian for Luther Jones, brings error.

Error from District Court, Garvin County; F. B. Swank, Judge. Consolidated actions by R. M. Love, as guardian of James R. Choate and others, minors, against Ada T. Cushing, executrix of the estate of Francis J. Cushing, and others. Judgment for plaintiff and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Jurisdiction—Time to File Petition in Error.</p> <p>Under chapter 18, Sess. Laws 1910-11, proceedings in error in the Supreme Court must be brought within six months from the date of the rendition of the judgment, or order from which the appeal is sought to be taken, and, when not so brought, this court is without jurisdiction to review such final order.</p>

Error from District Court, Payne County, John P. Hickam, Judge, Action by the First National Bank of Cush-ing against the Atchison, Topeka & Santa Fe Railway Company; Davis & Younger, a co-partnership, intervening. Judgment for in-terveners, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Insane Persons — Contracts — Deeds — Mental Incapacity to Execute.</p> <p>Under section 888, Rev. Laws 1910, a person entirely without understanding has no power to make a contract of any kind, and is only liable for the reasonable value of things furnished him for his support or the support of his family. Under this section the test of the capacity to make a deed is that the grantor shall have the ability to understand the nature and effect of the act in which ho is engaged and the business he is transacting; and where it is made to appear that such grantor was incapable of comprehending that the effect of the deed when made, executed, and delivered, would he to divest him of the title to the land set forth in the deed, the same is void.</p> <p>2. Same — Idiots—“Entirely Without Understanding.”</p> <p>Whore it is shown that the grantor executing a deed has been an idiot all his life, has never transacted any business of any character, cannot read or write, or understand the simplest matters, he is “entirely without understanding” within the meaning of section 888, Rev. Laws 1910.</p> <p>3. Appeal and Error — Review of Equity Case.</p> <p>In a ease of purely equitable cognizance, it is the duty of this court to review the entire record, and if it appears that the judgment of the court below is contrary to the weight of the evidence, reverse the cause and render, or cause to be rendered, such judgment as should have been entered at the trial.</p>

Error from District Court, Kingfisher county; James B. Cullison, Judge. Action by James McDonald and wife against Cecelia Miller and another. Judgment for defendants, and plaintiffs bring error.

<p>Error from Superior Court, Tulsa County ; M. A. Breckinridge, Judge.</p> <p>Action by Van Horn against Kennedy for damages for personal injury. Judgment for Van Horn and Kennedy appeals.</p>

<p>(Syllabus by the Court.)</p> <p>1. Landlord and Tenant — Estoppel of Tenant to Dispute Title.</p> <p>While a tenant cannot dispute his landlord’s title so long as it remains as it was at the time the tenancy commenced, he may show that such title has, during the tenancy, expired or been extinguished.</p> <p>2. Same — Oil and Gas Lease — Estoppel of Lessee.</p> <p>Where a party entered into possession of a tract of land as lessee under an oil and gas lease, and during the tenancy the title of his lessor is extinguished by a valid judgment, the lessee is not estopped from asserting such extinguishment in an action thereafter commenced by his lessor for the royalties agreed to be paid under the terms of the lease.</p>

<p>(Syllabus by the Court.)</p> <p>Mandamus — Right to Writ.</p> <p>Mandamus will not be awarded when the right to the relief sought is not clear and free from doubt, and will not issue in any case where the petitioner has a plain and adequate remedy in the ordinary course of the law.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by Walter H. Gant against B. F. King and others. From judgment for plaintiff, defendants bring error.</p>

<p>Error from District Court, Kingfisher County; J. C. Robberts, Judge.</p> <p>Action by Anton Zalabak against the City of Kingfisher, Oklahoma. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Usury — Action Against National Bank for Penalty — Sufficiency of Evidence.</p> <p>The evidence in this case examined, and held, that the court did not err in overruling demurrer to the evidence, and that such evidence is sufficient to support the judgment of the trial court.</p> <p>2. Same — Question for Court.</p> <p>Where the undisputed facts show that a bank knowingly charged and received usurious interest, and the only reasonable conclusion to be derived from the evidence, taken as a whole, is that the transaction is usurious, the question is one of law for the court, and not of fact for the jury.</p>

<p>Error from Superior Court, Muskogee County: H. C. Thurman, Judge.</p> <p>Action by Lucinda Durant against D. P. Stanfield. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Frivolous Appeal — Dismissal.</p> <p>Where upon an examination of the record, petition in error, and the motion to dismiss it appears that the appeal is manifestly frivolous and without merit, the appeal will be dismissed.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error’ — Time for Taking Proceedings.</p> <p>Where more than six months has intervened between the rendition of a final order or judgment sought to be reviewed and the filing of the petition in error in the Supreme Court, this court has no jurisdiction to review such final order or judgment.</p>

Error from County Court, Oklahoma County; John W. Playson, Judge. Action on promissory note by West Publishing Company against Ephriam H. Poster, defendant pleading set-off. -Judgment for plaintiff, and defendant appealed.

<p>Error from District Court, Harper County: W. C. Crow, Judge.</p> <p>Action by IT. Overstreet and J. S. Dockter partners, doing business under the firm name of Overstreet & Dockter, against the Wichita Falls & Northwestern Railway Company. Judgment for pláintiffs, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Reformation of Instruments — Contracts —Mista ke — Evidence.</p> <p>The law does not authorize the reformation of a written contract on the ground of mutual mistake (i. e., a mistake by each of the parties thereto) unless the proof of such mutual mistake is clear and convincing.</p> <p>2. Same — Reformation of Deed.</p> <p>Evidence, examined, and held, first, the judgment of the trial court was clearly against the weight of the evidence; second, the evidence is sufficient to sustain the allegation that the deed given by McKay to defendants did not conform to the agreement of the parties, through mutual mistake, justifying its reformation.</p>

<p>' Error from District Court, Craig County; Geo. C. Crump, Assigned Judge.</p> <p>Action by F. C. Finerty against Eunice C. Kirkendall and others. Judgment for defendants, and plaintiff brings error.</p>

Error - From District Court, Muskogee County; B. B. Wheeler, Judge. Action by the Drumm Commission Company, a corporation, against W. B. Miller and W. M. Briscoe on a promissory note. Judgment for plaintiff, and defendants bring error.

<p>Original proceeding for writ of prohibition by the Billings Hotel Company and others against the City of Enid and others.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by E. A. Harrigan et al. against S. O. White et al. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error from County Court, Payne County; Wilberforce Jones, Judge.</p> <p>Forfeiture proceedings against One Hudson Super-Six Automobile, No. 39527, in which W. D. Peyton, as owner, and the First National Bank of Cushing, as mortgagee, intervened. From judgment of forfeiture to State, the latter bring error.</p>

Error from District Court, Coal County; J. H. Linebaugh, Judge. Action by the board of commissioners of Coal county against the Southwestern Surety Insurance Company. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Jefferson County; Cham Jones, Judge.</p> <p>Action by Jennie Jones against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff and defendant brings error.</p>

<p>Error from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>Action between Chester Baker and Peter Deichman and others. From the judgment, Baker brings error.</p>

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by F. E. Riddle against the First National Bank Building Company and others. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Pontotoc County; Geo. C. Crump, Assigned Judge. Action by the Park National Bank of Sul-phur against T. E. Merritt and another upon a promissory note and to foreclose real estate mortgage. Judgment in favor of plaintiff, from which there was no appeal. Defendants brought suit to set aside judgment, which the court refused to do, and from which defendants appeal.

<p>Error from District Court, Kay County; William M. Bowles, Judge.</p> <p>Action by the American Surety Company of New York against John H. Koller and wife. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Okfuskee County; Geo. C. Crump, Judge. Action by Xarlie Fixico and others against E. W. Gill. Upon death of Gill action revived in the names of A. J. Gill and John A. Price, administrators. Judgment for plaintiffs, and defendant brings error.

<p>(Syllabus by the Court.)</p> <p>1. Prohibition — When Writ Lies — Remedy by Appeal — Temporary Injunction.</p> <p>Prohibition will not lie where an inferior court, having jurisdiction of both the subject-matter and the parties, making an erroneous application of the law, grants a temporary injunction, an appeal lying from said order to the Supreme Court, pending which said order may be superseded.</p> <p>2. Appeal and Error — Decisions Revievvable —Temporary Injunction.</p> <p>An order of the district court or.a judge thereof in chambers allowing a temporary injunction may be reviewed in the Supreme Court before final judgment in the case.</p> <p>3. Courts — Acts Coram Non Judice — Grant of Temporary Injunction.</p> <p>The violation of the rules relating to the exercise of jurisdiction does not, any more than in any other case of erroneous decision, make the action of the court coram non judice. To grant such an injunction when the state of the case, tested by the rules established for the exercise of jurisdiction, does not warrant it, is nothing more than judicial error. It is not an act in excess of jurisdiction.</p>

<p>Error from District Court, Muskogee •County; R. P. de Graffenried, Judge.</p> <p>Action by Martha Latty against the Muskogee Electric Traction Company. Érom judgment for plaintiff, defendant brings error.</p>

<p>(■Syllabus by the Court.)</p> <p>Appeal and Error — Defective Case-Made— Dismissal.</p> <p>A proceeding in error brought to this court on a case-made, where it does not appear from the record, or otherwise, that the defendants were present, either personally or by counsel, at the settlement, or that notice of the time thereof was served or waived, or what amendments suggested, if any, were allowed or disallowed, will be dismissed on motion of defendant in error.</p>

Error from District Court, Woods County; W. C. Crow, Judge. Action by J. Lee Smith and others against W. R. Barrick and others. Judgment for plaintiffs and defendants bring error.

Error from Superior Court, Muskogee County; Farrar L. McCain, Judge. Action by Betty Alexander, revived after appeal in the name of Irving Stacy, her administrator, against the St. Louis & San Francisco Railroad Company, for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by E. L. Lawrence and another against N. Stein and others. Judgment for plaintiffs, and N. Stein and another bring error.

Error from District Court, Creek County; Ernest B. I-Iuglies, Judge. Action by Ambrose Miller and another against Fred S. Clinton and others to cancel a deed. From judgment for plaintiffs the defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Municipal Corporations — Paving—Special Assessment — Estoppel.</p> <p>Where jurisdiction is conferred upon a municipal body to provide for paving its streets and to charge the cost thereof against the property benefited, according to the method provided by law, a property owner who stands by while such work is being prosecuted, with full knowledge that large expenditures are being made for such improve ment which will benefit his property, or upon due notice, fails to appear at the proper time and before the tribunal prescribed by law, and present his objections, if he have any, will not, after the work is completed, be afforded relief by injunction against assessments levied against the property benefited to pay for such work.</p> <p>2. Same — Remedy Against Assessment — Statute — Validity.</p> <p>Section 728, Snyder’s Compiled Laws 1909 (sec. 644, Rev. Laws 1910), is not unconstitutional, and does not deprive persons of their property without due process of law.</p> <p>3. Same — Injunction—Doing Equity.</p> <p>Unless the whole assessment for the purpose of grading, curbing, draining and paving a street is void, a case for injunction cannot be maintained, for he who seeks equity must do equity. If any part of the assessment against the owner’s land is valid, he cannot have an injunction unless he has paid or offered to pay such part as is valid.</p> <p>4 Same — Statute of Limitations.</p> <p>“No suit shall be sustained to set aside any such assessment, or to enjoin the mayor and council from making any such improvement, or levying or collecting any such assessments, or issuing such bonds, or providing for their payments as herein authorized, or contesting the validity thereof on any ground or for any reason other than for the failure of the city cormcil to adopt and publish the preliminary resolution provided for in section two (723) in cases requiring such resolution and its publication and to give the notice of the hearing on the return of the appraisers provided for in section five (726) Unless such suit shall be commenced within sixty (60) days after the passage of the ordinance making such final assessment.”</p> <p>5. Appeal and Error — Evidence—Review.</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 trial court is clearly against the weight of the evidence, cause to be rendered such judgment as the trial court should have rendered.</p> <p>Record examined in the instant case and the judgment and decree held to be clearly against the weight of the evidence, cause reversed and remanded with directions.</p>

<p>"(Syllabus by the Oourt.)</p> <p>1. Contracts — Construction — Language of Contract.</p> <p>It is due the parties to a contract in writing to assume that they know and understand the logical and grammatical use of words, phrases, and clauses chosen by them to convey the thought and purpose of their contract..</p> <p>2. Same — Statutes—Rules of Grammar.</p> <p>The courts are presumed to know, understand, and follow the rules of grammar in the construction of statutes and contracts.</p> <p>3. Same — Restrictive Clauses — Use of Comma.</p> <p>The rule is that no comma must be placed between restrictive adjuncts or clauses and that which they restrict. A restrictive clause, however, must be set off by a comma, when it refers to several antecedents which are themselves separated by that point.</p> <p>4. Equity — Jurisdiction—Complete Relief.</p> <p>A court of equity which has obtained jurisdiction of the controversy on any ground or for any purpose will retain such jurisdiction for the purpose of administering complete relief and doing entire justice with respect to the subject-matter, and avoid multiplicity of suits.</p> <p>5. Oil and Gas — Forfeiture of Lease — Sufficiency of Petition.</p> <p>Record examined and held; that the allegations of plaintiffs’ petition sufficiently support the findings of the trial court.</p>

Error from County Court, Tulsa County; H. L. Standeven, Judge. In the Matter of the Estate of Josephine Coachman, Deceased. From action of county court approving deed of certain heirs, Billy Molone and others, to D. D. Wamsley, the heirs bring error.

<p>(Syllabus by the Court.)</p> <p>1. Judgment — Consent Judgment — Validity —Settlement of Indian Land Suits.</p> <p>G., an adult Creek freedman, commenced two separate actions for the purpose of setting aside two deeds to her restricted lands, upon the ground that they were executed by her while she was a minor. When the causes were reached for trial C. and her counsel consented to a judgment and decree whereby the deeds were cancelled as prayed for and money judgments entered against C. for the amount of the consideration she had received for the sales, which judgments were to be liens upon the land involved, to be foreclosed in the event the plaintiff failed to pay the same within 90 days. Held, that said judgments and decrees by consent were not void and subject to collateral attack.</p> <p>2. Judgment — Consent Judgment — Binding Effect.</p> <p>A judgment by consent is regarded as in the nature of a contract and binding obligation between the parties thereto, which neither, in the absence of fraud or mistake, has the right to set aside and disregard.</p> <p>3. Same — Compromise and Settlement.</p> <p>As it is not contended that the compromises and settlement made by the plaintiff and her attorneys with the defendants in the original cases, after she had reached her majority, were unfair or that the judgments and decrees entered by consent were unequitable, we think the trial court was right in refusing te disturb them.</p>

Error from District Court, Carter County: W. E. Freeman, Judge. Action by Lula Smith and Columbus Smith, minors, by their sister and next friend. Amanda Alexander, against J. B. Chastain, guardian, and others. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>Railroads — Grant of Right of Way for Electric Road — Transfer to Steam Railroad-Damages to Grantor.</p> <p>Where a right of way has been secured for an electric railway under a general warranty deed with no reservations, and after the grading is completed, the right of way is sold by the tractipn company securing it, to a standard-gauge steam railway company, and the latter operates its trains over said right of way, the remedy of the owner of the land from whom the right of way ivas secured would be for damages, if any, to his adjoining lands resulting from operating the standard-gauge steam railway; and in estimating the damages, the value of the right of way should not be considered as an element of the damages sustained.</p>

<p>Error from District Court, Major County; James B. Cullison, Judge.</p> <p>Action by Keller Ring against James M. McGowen and Hattie E. McGowen. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Comanche County; R. J. Ray, Judge. .</p> <p>Action by R. B. Compton against the Board of Commissioners of Comanche County. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Pontotoc County; Geo. C. Crump, Assigned Judge.</p> <p>Action by F. C. Parks against F. R. Har-riss and another. Judgment for plaintiff, and Harriss bring error.</p>

<p>Error from District Court, Pottawatomie County; Hal Johnson, Judge.</p> <p>Mandamus by the state on the relation of J. H. Scott and another against F. W. Watts, mayor of the city of Shawnee. Judgment for plaintiffs, and defendants bring error.</p>

<p>Error from District Court, Tillman County; Chas. B. Wilson, Jr., Assigned Judge.</p> <p>Action by A. J. Hunter against Joe Garland. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Bryan County; Geo. C. Crump, Assigned Judge. Mandamus by Hardwicke-Etter Company and others against the City of Durant. Judgment against certain plaintiffs, and they bring error.

<p>Error from District Court, Muskogee County ; R. P. deGraffenreid, Judge.</p> <p>Action by Tandy C. Young against J. M. Simmon. Judgment for plaintiff for $3,000, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1.Statutes — Time of Taking Effect — Act of Congress.</p> <p>An act of Congress takes effect on the date of its approval by the executive, unless its operation is postponed by its own terms.</p> <p>2. Same.</p> <p>When an act of Congress contains certain provisions that are postponed to take effect at a future, date, and there is no implication or expression therein that the act itself should be postponed, it will be held the act itself takes effect on the date of approval, and the only sections postponed to take effect will be those where the postponement is expressed therein, or is to be implied therefrom.</p> <p>3. Indians — Lands—Alienation—Statutes.</p> <p>As to the Five Civilized Tribes, section 1 of the Act of May 27,1908, fixes the status of allotments as regards restriction on alienation during the lifetime of the allottee, and section 9 fixes the fetatus of allotted lands as regards restriction on alienation after the death of 'the allottee, and each refers to separate and distinct subject-matters, and neither is dependent upon the other.</p> <p>4. Same — Restrictions—Statute.</p> <p>Section 9 of the Act of May 27, 1908, fixes the restrictions on alienation of allotted land of the Five Civilized Tribes after the death of the allottee, and there being no expression or inference in the section or act that it was the intent of Congress to postpone the time when said section should take effect, therefore said section became effective.May 27, 1908.</p> <p>On Rehearing.</p> <p>5. Same — “Restricted Lands” — Inheritance by Minors.</p> <p>Lands inherited by full-blood Choctaw Indian minors from a full-blood Choctaw allot-tee are not “restricted lands” within the purview of the proviso in section 6 of the Act of Congress of May 27, 190S, prohibiting the sale of incumbrance of restricted lands of living minors, except by leases authorized by law, by order of the court, or otherwise.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by M. T. Goble against Midland Valley Railroad Company. Judgment for plaintiff, and defendant brings error. Defendant also brings error from action of court in denying petition for new trial on ground of newly discovered evidence. Actions consolidated.

Error from District Court, Ottawa County; Geo. C. Crump, Judge. Action by George W. Finley and another against George W. Beck,. Jr., and others. Judgment for plaintiffs, and defendant named brings error.

From an order of the Corporation Commission requiring the Pioneer Telephone & Telegraph Company to make physical connection between its telephone lines and the telephone lines of E. H. Hendricks, the Pioneer Company appeals.

<p>(Syllabus by the Court.)</p> <p>Pleading — Judgment on Pleadings — Action on Appearance Bond.</p> <p>In an action on an appearance bond, where a forfeiture is alleged, and the verified answer denies such, forfeiture, and alleges tliat all tlie terms and conditions of 'such appearance bond bave been fulfilled, a motion for judgment on tbe pleadings should be overruled. ■</p>

<p>Error from District Court, Coal County; J.H. Linebaugh, Judge.</p> <p>Action for possession of automobile under chattel mortgage by W. L. Nettles against H. J. Porter and another, mortgagors, and against Charles W. Carson and another who claimed a lien on the property for material and repairs. Judgment for Carson and another, and plaintiff brings error.</p>

<p>Error from District Court, Ottawa County; S. C. Fullerton, Judge.</p> <p>Action by G. W. Sapp, guardian of the estate of Esta 55. McCullough, a minor, against the Equitable Surety Company, as surety on a former guardian’s bond, and another. Judgment for plaintiff, and the Surety company brings error.</p>

Error from District Court, Creek County; R. W. Higgins, Assigned Judge. Action by Lucy Squires and others against J. A. Fulp, administrator, and others. Prom a judgment in favor of certain minor plaintiffs, defendants bring error.

Error from District Court, Caddo County; Will Linn, Judge. Action by Charles Biendorf against Pearl O. Thorpe and others. Cause dismissed by trial court upon exhaustion of costs deposit. Motion by plaintiff to reinstate cause overruled, and he brings error.

<p>(Syllabus by the Court.)</p> <p>Oil and Gas — Priority of Leases — Judgment —Evidence.</p> <p>Record examined, and held, that the judgment rendered by the trial court is not contrary to the clear weight of the evidence.</p>

<p>(Syllabus by the Court.)</p> <p>Contracts — Suit for Purchase Price of Land— —Sufficiency of Evidence.</p> <p>Record examined and held: (1) That the findings of fact of the trial court are sufficiently supported by the evidence; (2) that the judgment rendered by the trial court is not contrary to law.</p>

<p>(Syllabus by the Court.)</p> <p>Schools and School Districts — Limitation of Indebtedness — Federal Act Governing Territories.</p> <p>Under the provisions of section 4 of an act of Congress approved July 30, 1886, eh. 818, 24 Stat. at L. 171 (U. S. Comp. Stat. 1918, sec. 3483), a school district of a territory cannot become indebted in any manner for any purpose to any amount which in the aggregate, including existing indebtedness, exceeds 4 per centum of the value of the taxable property within such school district, to be ascertained by the last assessment for territorial and county taxes previous to the incurring of such indebtedness.</p>

Error from County Court, Jefferson County; E. L. Dillard, Judge. Forfeiture of one Buick car under provisions of the prohibition law, and B. F. Cline, owner, who intervened, brings error.

<p>Error from District Court, Muskogee County; Chas G. Watts, Judge.</p> <p>Action by James L. Eore against the Muskogee Electric Traction Company. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Fraud, Statute of — Promise to Answer for Debt of Another.</p> <p>Where a party orally promises to pay for goods furnished another, if the parol contract creates an original liability on the part of the promisor, and credit is extended solely to him, it does not fall within the statute of frauds. If the intention, however, of the promisor was that he should only be collaterally liable, and pay only in case of default of the party to whom the goods were furnished and to whom credit was extended, then such parol contract would fall within the statute of frauds, and be void.</p> <p>2. Same — Question for Jury.</p> <p>Record examined, and held, under the facts in the instant case, that the question as to whether the verbal undertaking was primary or collateral was a question of fact to be determined by the jury under proper instructions.</p>

<p>Error from District Court, Oklahoma County; John W. Hayson, Judge.</p> <p>Action by R. H. McKay against Roy S. Randerson and another. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by Hita Ethel Walser, formerly Raines, and Carl F. Croniger, administrator of the estate of William D. Raines, deceased, against the Southwestern Surety Insurance Company. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Oklahoma County ; Edward D. Oldfield, Judge. Action in ejectment by Turnverein Ger-mania of Oklahoma City and others, to recover certain real estate held by William B. Hill under an alleged tax deed. From a judgment in favor of plaintiffs, William B. Hill appeals

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Case-Made—Settlement— Judges.</p> <p>A case-made must be settled, certified, and signed by the judge who tried the cause, though such trial judge be a judge pro tempore, in the absence of such circumstances or conditions enumerated by the statute authorizing one other than such trial judge to sign and settle a case-made.</p>

Error from District Court, Payne County ; John P. Hickman, Judge. Action by John Sealy and others against' Charles M. Prowant and others. Prom judg- • ment for plaintiffs, the defendants bring error.

<p>(Syllabus by tbe Court.)</p> <p>1. Taxation — Void Tax Deed — Effect of Re-cordation.</p> <p>The recordation of a void tax deed does not effect the rights of a purchaser from the owner.</p> <p>2. Quieting Title — Issues—Limitation of Action.</p> <p>Record examined, and held: That the pleading* of the parties as they now stand do not raise or present for review the question whether the defendant’s right of possession is barred by the one-year statute of limitations.</p> <p>3. Taxation — Validity of Tax Deed — Statutes Controlling.</p> <p>The validity and effect of a tax deed duly executed are to be determined by the statutes iu force when the sale was made or certificate acquired, and not by any statute enacted after the sale or issuance of the certificate and before the making of the deed.</p> <p>4. Same — Void Tax Deed — Right to Valid Deed</p> <p>Where a tax deed has been issued which is void upon its face, the pur-chaser at the tax sale may, if the sale was in fact valid and that fact is apparent from the record of the tax sale, have as many deeds issued as he desires until he gets a good tax deed.</p>

Error from District Court, Osage County; It. II. Hudson. Judge. Action by certain stockholders (being Chas. H. McKee, as executor. Fred AV. Smith, and others) of the Asphalt Oil Company, a corporation, to vacate a decree of foreclosure of a trust deed and to set aside the sale, declare a trust, and cause an accounting. From a judgment on demurrer to the evidence, plaintiffs bring error. The two cases are consolidated in this court.

<p>Error from District Court, Pawnee County ; Conn Linn, Judge.</p> <p>Action to quiet title by Minnie B. Craven against Isaac Smith. Judgment for defendant, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>Quieting Title — Validity of Tax Deed.</p> <p>Affirmed upon the authority of Prowant v. Smith, No. 9905, 77 Okla. 257.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Alice Harn and another against the Interstate Building & Loan Company and another. Erom the judgment plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>1. Libel and Slander — Malice—Burden of Proof.</p> <p>In an action for libel, where plaintiff has established that defamatory matter has been published by the defendant concerning him, he is entitled to recover unless the “fact” (the publication itself) and the testimony rebut the presumption of malice. The burden of adducing evidence to rebut such presumption is upon the defendant. If the fact and the testimony rebut the presumption of malice, the burden then rests upon the plaintiff to show express malice in order to recover.</p> <p>2. Same — Question for Court — Direction of Verdict.</p> <p>In an action for libel, seeking general damages alone, when the evidence is uneontro-verted, it becomes the duty of the court to determine whether or not there is any evidence adduced upon the trial which tends to prove malice. If from the uncontroverted testimony there is no malice shown, then there exists no cause of action, and it becomes the duty of the court to direct a verdict for the defendant.</p> <p>3. Appeal and Error — Verdict—Sufficiency of Evidence.</p> <p>Where there is no evidence reasonably tending to establish a material issue submitted to the jury under the instructions of the court, which the jury must have found in favor of the prevailing party in order to have returned the verdict, the verdict will be set aside.</p> <p>4. Libel and Slander — Petition — Special Damages.</p> <p>In an action for libel, special damages must be alleged and proved, and it is error to instruct the jury on such damages in the absence of such allegation and proof.</p>

<p>(Syllabus by the Court.)</p> <p>1. Brokers — Commissions—“Procuring Purchaser” for Real Estate.</p> <p>Where a real estate broker is employed for a commission to be paid to procure a purchaser for property listed with Mm and presents to the principal a proposed purchaser, it is for the principal then to decide whether the person presented is acceptable, and if, without any fraud, concealment, or other improper practice on the part of the broker, the principal accepts the person presented and enters into an enforceable contract with him for the purchase of the property, the commission is fully earned.</p> <p>3. Same — Requisites—Enforceable Contract of Sale.</p> <p>An agreement by a real estate broker to procure a purchaser implies that the purchaser shall be one able to comply, or that the seller and the purchaser must be bound to each other in a valid contract. So where the agreement of the real estate broker is to make a sale or an exchange of property, his commission is earned when a contract is entered into by and between the vendor and the vendee, which is mutually obligatory upon the vendor and vendee even though the ven-dee afterwards refuses to execute his part of the contract for the sale or purchase.</p>

Error from County court, Canadian county; W. A. Maurer, Special Judge. Clayton Phillips was adjudged guilty of indirect contempt in the county court of Canadian county, and appeals.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by the State on the relation of the Attorney General, against J. Harvey Smith and W. Y. Pryor on promissory note. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court, Jefferson County; Cham Jones, Judge.</p> <p>Action by Henry Brockreide against the Hart-Parr Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Stephens County; Cham .Tones, Judge. Action by Joe R. McArthur against R. W. Wells and J. S. Mullen for possession of a certain tract of land in Stephens county and for rents and profits therefrom. Judgment for plaintiff, defendants bring error.

Error from District Court, Muskogee County; R. P. de Graffenreid, Judge. Action in assumpsit by Robert Eranklin against James R. Parks and Minnie Lee Cornelius, executors of the estate of W. D. Cornelius, deceased. Judgment for defendants, and plaintiff brings error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by H. U. Bartlett against the board of commissioners of Creek county to test taxability of two tracts of land which were previously two Indian allotments. Judgment for plaintiff as to one tract, and for defendant as to the other, and both parties bring error.

Error from District Court, Ottawa County; George C. Crump, Assigned Judge. Action by the Picher Lumber Company, a corporation, against Charley Negin and Minta Negin and others consolidated with action by Tom L. Green against Charley Ne-gin and Minta Negin and others. Judgment rendered for plaintiffs and cross-petitioners and against Charley Negin and Minta Negin, who bring error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Failure to File Brief— Dismissal.</p> <p>AVhere plaintiff in error files no brief, as required by rule 7 (47 Okla. vi) of this court, the appeal will be dismissed for want of prosecution.</p>

<p>(Syllabus by the Court.)</p> <p>1. Mechanics’ Liens — Amendment of Statement and Affidavit at Trial,</p> <p>A mechanic’s lien statement and the affidavit attached thereto, if not fatally defective, may be amended at the trial to conform to the facts.</p> <p>2. Same — Limitation of Action — Parties.</p> <p>The statute of limitations providing that an action to foreclose on a mechanic’s lien must be brought within one year after the date of filing of lien applies to the owner, but other parties can be brought in by amendments thereafter.</p> <p>3. Same — Priorities—Homestead Claim of Wife.</p> <p>The mechanic’s lien which attaches prior to the purchase of the property is superior to the homestead claim of the wife of such purchaser, and it is not necessary to make her a party within the year prescribed for the bringing of the suit against the owner of the property.</p> <p>4. Same — Amendment of Lien Statement— Procedure.</p> <p>Under section 3873, Rev. Laws 1910, a mechanic’s lien statement may be amended in any matter where for similar reasons a pleading could be amended and at any time when a pleading could be amended.</p>

<p>(Syllabus by the Court.)</p> <p>I. Carriers — Action for Damages to Freight by Delay — Through Contract — Liability of Delivering Carrier — Defense—Burden of Proof.</p> <p>In case a shipment of freight under contract with a carrier for shipment, not only over its own line, but also a connecting line, in an action by the consignor against the delivering carrier, where the evidence disclosed that the initial carrier had issued a receipt to the consignor to the effect that the goods were received by it “in apparent good order, the burden of proof was on the carrier to rebut said prima facie presumption of delivery” in. apparent good order, or to show that the alleged damages or negligence in delay for said shipment occurred before it reached the delivering carrier line. -</p> <p>3. Same — Damages for Delay — Proof.</p> <p>In order to recover damages for an alleged delay in the shipment of freight, it is necessary to introduce some competent evidence tending to show the length of time ordinarily required to transport the shipment from the place where received to the point of delivery, and that a longer time was actually consumed than was necessary for that purpose.</p> <p>3. Carriers — Shipping Contract — Maximum Valuation — Validity.</p> <p>A special contract executed between a common carrier and a shipper, in consideration of a lower freight rate, providing that in case of loss or damage to the property the liability of the carrier shall not exceed a maximum valuation per one hundred pounds, is not a contract attempting to exempt the carrier from liability on account of its own negligence; and if the contract is reasonable and just, and has been fairly entered into by the shipper, the same will be upheld as a proper and lawful means of determining the amount of the carrier’s liability in case of loss.</p>

Error from District Court, Oklahoma County; W. C. Crow, Assigned Judge. Action by the Oklahoma Railway Company against the Oklahoma Gas & Electric Company and the Oklahoma Natural Gas Company for damages sustained to the power house and machinery of plaintiff as' a result of the explosion of natural gas. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Appeal by the board of equalization of Oklahoma county from a judgment in favor of the First State Bank of Oklahoma City correcting assessment of taxes for the year 1918 against the First State Bank.

<p>(Syllabus by the Court.)</p> <p>1. Indians — Restrictions on Alienation— Wilis.</p> <p>It is well settled that a conveyance executed in violation of restrictions is void, and conveys no title to the grantee. The restrictions are a matter of governmental policy, and therefore no rule of property will avail to defeat them. A general restraint on alienation in the act of Congress will be construed as extending to devises by will.</p> <p>2. Same — Osage Indians — Contract to Make Will — Validity Against Heirs.</p> <p>Where, under the Osage allotment act, a restricted Indian was incapable of alienating his restricted lands, or disposing of either his lands or his Osage trust funds by will, without the approval of the Secretary of the Interior, a court of equity will not enforce a contract to make a will to such property, entered into by such Indian during his lifetime, against his widow and heir, who was not a member of the Osage Tribe of Indians.</p>

Error from District Court, Stephens County ; W. M. Bowles, Judge. Action by Myrtle B. Smith, executrix of the estate of Fred W. Smith, deceased, against the Chicago, Rock Island & Pacific Railway Company for $35,000 damages for the negligent death of Fred W. Smith. Judgment in favor of plaintiff for $11,000, and defendant brings error.

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. Injunction by Preslie B. Cole against Henry G. Baker, trustee, and Will J. Baker, treasurer of Okmulgee county. Prom order denying motion to vacate temporary injunction, defendants bring error.

<p>Error from Superior Court, Tulsa County; M. A. Breekenridge, Judge.</p> <p>Action by C. B. Davis and others, against ■the Terrell Company. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Coal County; H. E. Cullom, Special Judge.</p> <p>Action on guardian’s bond by Rosa Foo-shee, nee Guynes, against Tom Guynes and others. Judgment for plaintiff, and defendants bring error.</p>

<p>Error from District Court, Adair County; John H. Pitehford, Judge.</p> <p>Action by W. L. Sheffield against the Kansas City Southern Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by B. W. Ludeman against Mary E. Smith for damages growing out of a real estate transaction. Judgment for defendant on her cross-petition for damages, and' the plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Intoxicating Liquors — Searches and Seizures — Forfeiture of Mortgaged Chattels — Rights of Innocent Mortgagee.</p> <p>The holder of a valid chattel mortgage does not, by reason' of chapter 188, Laws 1917, forfeit the right to subject the property to the payment of his debt by an act done without his consent or connivance by one to whom such personal property had been entrusted to be used for a legal and lawful purpose.</p> <p>2. Same — Unlawful Use of Automobile— Rights of Innocent Owner.</p> <p>The unlawful use of an automobile to convey intoxicating liquors by one lawfully in possession of such conveyance does not forfeit the right of the owner to claim and retain such property when it appears that such conveyance was so unlawfully used without the consent, fault, or knowledge of its owner.</p>

Error from District Court, Latimer County ; W. H. Brown, Judge. Action by W. S. Elliott against Jacob M. Dickinson, receiver, and the Chicago, Rock Island & Pacific Railway company. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Jurisdiction—Errors of Fact and Law — Review of Award of Industrial Commission.</p> <p>In a suit instituted in this court to review an award of the State Industrial Commission, the suit must be to review an error of law, and not an error of fact. The decision as to all matters of fact is final.</p> <p>2. Same.</p> <p>The opinion of the Industrial Commission examined, and held, that the appeal herein involves a question of fact, and not an error of law.</p>

Error from the District Court, Muskogee County; R. P. deGraffenreid, Judge. Action by P. W. Samuel and others against the City of Muskogee and others to enjoin collection of assessments for street improvements. Judgmtent for plaintiffs, and defendants bring error.

Error from District Court, Seminole County; Tom D. McKeown, Judge. Action to recover real estate by Nora Hul-ley and others against Charley Stidham, and anothei, minors, by their guardian. Judgment for defendants, and plaintiffs bring error.

<p>Action to reverse award by State Industrial Commission of compensation for personal injuries to Joe Tapp. Action prosecuted by the Bristow Cotton Oil Company and another.</p>

<p>Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by Herman Pesterfield against John W. Lee. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Cleveland County; R. McMillan, Judge. Action by Delila M. Hopkins against The National Bank (now named the Farmers’ National Bank) of Norman, Okla., and others. Judgment for defendants, and plaintiff brings error.