Volume 80 — Oklahoma Reports

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Review—Subsequent Appeals.</p> <p>Where the facts on a second appeal are practically the same as on a first appeal, the decision of the first appeal is the law of the case in all its subsequent stages and will nót be reviewed on a second appeal.</p> <p>2. Same.</p> <p>The questions open to dispute, as expressed or by necessary implication decided on a prior appeal, will not be reviewed on a second appeal.</p>

Error from District Court, Garfield County; J. C. Robberts, Judge. Action by Sarah J. Edmundson against Frank Kenyon and others to enjoin nuisance. Judgment for plaintiff and defendant Kenyon brings error; H. H. Edmundson, administrator of the estate of Sarah J. Edmundson, deceased, being made defendant in error.

<p>Error from District Court, Oklahoma County ; Hal Johnson, Assigned Judge.</p> <p>Action between the Southwestern Electric Company and the Nunn Electric Company. Judgment for the latter and the former brings error.</p>

From an award of workman’s compensation to A. A. Carel by the State Industrial Commission, the New Amsterdam Casualty Company, a corporation, appeals. The award against the New Amsterdam Casualty Company set aside, and the cause remanded to the Commission for further proceedings,

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action between M. Bodovitz and T. B. Snel-son and others. From the judgment the latter bring error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Evidence — Judicial Notice — Matters Subject.</p> <p>In order for a court to take judicial notice of a matter it must be of common and general knowledge within the limits of the jurisdiction of the court," and must be well established and authoritatively settled.</p> <p>2. Same — Train Schedules.</p> <p>.The schedule time of the arrival and departure of trains at a particular place is so variable that courts will not take judicial notice thereof.</p> <p>3. Depositions — Admissibility—Cross-Examination.</p> <p>Where a party, in the taking of a deposition, is deprived of the right of cross-examination on account of the fault of the opposite party or his attorney, the testimony given in chief should not be admitted. The law, however, is satisfied where a party has been given sufficient notice of the time and place of the taking of the deposition and is given a reasonable opportunity for cross-examination.</p> <p>4. Appeal and Error — Harmless Error— Admission of Evidence.</p> <p>A cause will not be reversed for error in the admission of evidence where it does not appear to the court, after an examination of the entire record, that the error complained of has probably resulted in a miscarriage of justice.</p> <p>5. Tidal — Demurrer to Evidence — Effect.</p> <p>A demurrer to the evidence admits the. truth of all the evidence adduced and all facts which the evidence tends to establish, as well as every fair and reasonable inference to be drawn therefrom.</p> <p>6. Replevin — Judgment—Sufficiency of Evidence.</p> <p>The evidence'in the record examined, and held sufficient to support the judgment for the plaintiff.</p>

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

<p>(Syllabus by the Court.)</p> <p>. 1. Appeal and Error — Settlement o£ Case-Made — Sufficiency of Notice.</p> <p>A notice to defendant in error that case-made would be presented to the trial judge for signing and settlement on May 1, 1918, at 10 o'clock a. m., “or as soon thereafter as counsel can be heard,” is not sufficient to confer authority upon the trial judge to sign and settle the same on the 6th day of May, in the absence of the defendant in error.</p> <p>2. Appeal and Error — Record Proper — Motions.</p> <p>Motions presented to the trial court, the rulings thereon, and exceptions thereto, are not properly part of the record and cannot be presented to this court by. transcript.</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Action by the State on the relation of Ben E. Saye, County Attorney, against Brooks Andrews, Bert Tucker, and another upon a forfeited appeal bond. Judgment for plaintiff, and the defendants named bring error.

- Error from District Court, Craig County; Preston S. Davis, Judge. Action by Looney Whitmire and another against N. Levine for recovery of lands, and cross-action by Levine against Margaret O’Connor, mortgagee. Judgment for Levine, and plaintiffs bring error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Time for Case-Made— Jurisdiction.</p> <p>When the time fixed for making and serving case-made is, allowed to elapse, the trial court thus loses jurisdiction of the case, and an order subsequently made by the trial court extending the time for making and serving the case-made is void, and the case-made served by virtue of such order of extension is a nullity and confers no jurisdiction upon this court.</p>

Error from District Court. Johnston County; J. H. Linebaugh, Judge. Action by J. W. Stewart against C. B. Burrows and Y. F. Eubank, County Treasurer of Johnston County 'to cancel certain tax deeds and to have taxes declared illegal. Judgment for plaintiff for less than sued for, and he brings error.

Error from District Court, Craig County; Pies ton S. Davis, Judge. Proceeding to revive judgment by Delia P. Jordan, administratrix of the estate of James M. Bell, deceased, against S. L. Sager.. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus b'y the Court.)</p> <p>1. Appeal and Error — Trial — Change of Theory of Case.</p> <p>The parties to an action having presented their case, or defense, to the trial court upon a certain, definite theory, are bound thereby, and will not be permitted to change the theory of the case, either at any sub- ■ sequent stage in the trial court, or in the appellate court upon appeal.</p> <p>2. Master and Servant — Duty of Master— Care — Safety of Employe.</p> <p>The master is bound to exercise reasonable care and diligence to provide a reasonably safe place in which the employe or servant is to work, and also reasonably safe machinery, tools, and appliances with which to work, and where, the master engages to convey the servant back and forth from his house to his work, to supply the servant with a reasonably sate means of conveyance.</p> <p>3. Same — Contract Exempting Master from Liability for Negligence — Validity.</p> <p>A contract between master and servant, before the happening of an injury, whereby the servant, in consideration of the employment, or of the wages, agrees to release and discharge his master from liability on ac- • count of injuries caused by the negligence of his master or of the latter’s servants; is forbidden by the Constitution (art. 23, secs. 5, 7, and 8) and statutes of this state, (Rev. Laws 1910, sec. 972), and is void as against public policy.</p>

Error from District Court, Tillman County; Prank Mathews, Judge. Action by J. H. Pendleton and others against C, B. Greever, on promissory note. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Washington County; K. B. Boone, Judge. Action by A. E. MeCaleb against G. R. McKinley for the recovery of land. Plaintiff’s petition dismissed by the trial court, from which plaintiff appeals.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Time' fojr Appeal — Dismissal.</p> <p>Where petition in error is not filed in this court until after the expiration of more than six months from the date of the judgment appealed from, this court has no jurisdiction over the subject-matter, and the appeal will. be dismissed.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by H. B. Skien and another against the Junction Oil & Gas Company (A. J. Dies-•eher, intervener) to cancel oil and'gas lease. Judgment for defendant, and plaintiffs 'bring .error.

Error from District Court, Pawnee County;-Conn Linn, Judge. Action by James ’Bullington against the Petroleum Iron Works Company to recover damages for personal injury. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Tillman County; Frank Miathews, Judge.</p> <p>Action 'between the Board of Commissioners of Tillman County and Pearl A. Little. From the judgment, the former brings error.</p>

<p>• Error from District Court, Ellis County; T. P. Olay, Judge.</p> <p>Action by Charles E. Daniels and another against J. A. Stone and others to quiet title. Judgment for plaintiffs, and defendant named brings error.</p>

<p>Error from District Court, Logan County; Arthur R. Swank, judge.</p> <p>Quo warranto and injunction by C. 6. Butler and others against Lawrence Jelsma, County Treasurer, and others. Judgment for plaintiffs, and defendants bring error.</p>

Error from District (Jourt, Ottawa County; S. C. Fullerton, Judge. Action by Wm. Crites against the City of Miami. Upon death of plaintiff, order reviving action in the name of Rosella Crites, administratrix. From order vacating the order of revivor, plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Taxation — Gross Production Tax — Revision of Taxpayer’s Return — Right to Contest.</p> <p>While the gross production act of 1916 does not e'xpressly give the taxpayer the right to appear and contest the action of the State Auditor in revising and increasing the return of the value of his gross production made by the taxpayer, the same purpose is accomplished by the part of the act which provides: “The State Board of Equalization upon its own initiative, may, and upon complaint of any person who claims that he is taxed too great a rate hereunder, shall, take testimony to determine whether the taxes herein imposed are greater or less than the general ad valorem tax for all purposes would be on the property of such producer subject to taxation in the district or districts where the same is situated, including the value of oil, gas, or mineral lease, or of the mining or mineral rights, the machinery, equipment or appliances used in the actual' operation of in and’around any such well or mine, the value of the oil, gas, asphalt or any of the said mineral ores produced and any other element of taxable value in lieu of which the tax herein is levied.”</p> <p>2. Same — Hearing Refere State Board— Evidence.</p> <p>In view of the construction we place upon the gross production law of 1916, it is clear that the Board of Equalization erred in sustaining the demurrer to the evidence offered by the taxpayer.</p>

<p>Error from District Court, Beckham County ; T. P. Olay, Judge.</p> <p>Action by W. L. Bradford against C. E. Snell, County Treasurer of Beckham County, and others to remove clouds from the title of lands, and tq enjoin and restrain defendants from issuiiig any purported tax deed conveying said .land. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from District Court, Major County; James B. Cullison, Judge.</p> <p>Action between Grace Wright, individually and as administratrix of the estate of Jas. H. Slattery, deceased, and another and A. O. Waggoner, alias A. 0. Wagner, and another. From the judgment, the parties first named bring error.</p>

Error from District Court, McIntosh County; R. W. Higgins, Judge. Action by Willie Henshaw, nee McIntosh, a minor, by Pleas Henshaw, guardian, against A. O. Johnson and E. W. Webb, Jr., to recover on guardian’s bond. Judgment for •plaintiff, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Failure to Comply With Rules — Dismissal.</p> <p>When plaintiff in error fails or refuses to comply with the lawful and reasonable orders of this court, or offers any reasonable excuse for failure so to do, such appeal may be dismissed.</p>

Error from District Court, Pottawatomie County; Edward Dewes Oldfield, Assigned Judge. Action by Ida It. Horn against S. P. Horn for divorce and permanent alimony. Decree of divorce but no permanent alimony granted, from which plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Mechanics’ Liens — Enforcement of Mater-ialman’s Lien — Receivers—Directing Verdict.</p> <p>In an action on account to recover the purchase price of a quantity of crude oil, to foreclose a materialman’s lien, and for the appointment of a receiver, commenced by a corporation against R., an individual, and the H. 0. & G. Company and the R. & C. Company, two corporations, the plaintiff introduced evidence tending to show that R., the individual defendant, who was an officer and stockholder in both of his codefendant corporations, purchased the crude oil and was in possession of the property upon which the lien was claimed and for which the receiver was granted. Thereupon the individual defendant testified without contradiction that he purchased the oil as an, officer of one of the defendant companies and for its use and that the same was ' charged to that company upon the boohs of the plaintiff; that the property upon which the lien was sought to be foreclosed and for which the receivership was granted was the property of the H. O. & G. Company and that the same was in the possession of the R. & C. Company as lessee. Held, that, in the absence of fraud, the evidence introduced by the plaintiff in no way tended to contradict the positive testimony of R., and that the trial court did not err in so instructing the jury.</p> <p>2. Receivers — Wrongful Receivership — Action for Damages — Burden of Proof.</p> <p>Persons who wrongfully procure the appointment of a receiver, become, after the appointment is judicially declared void, trespassers ab initio, and liable for the damages caused by their wrongful acts. It is not necessary, in order to recover damages for wrongfully procuring the appointment of a receiver, to show that the appointment was procured maliciously, and without probable cause. In an action for damages for wrongfully securing the appointment of a receiver, the general rules as to burden of proof and admissibility of evidence in civil actions apply. Plaintiff is entitled to all damages which he may sustain by reason of such appointment, and in determining the measure of damages it is proper to consider the injury to plaintiff’s possession during the period of the receivership.</p> <p>3. Same — Mitigation of Damages.</p> <p>Where a person takes the property of another under circumstances amounting to a conversion, the wrongdoer cannot, with good grace, ask the "person injured to do anything more in the way of mitigating damages than to take back his property when it is .tendered to him. It is true that there can be no recovery for losses which might have been prevented by reasonable efforts on the part of the person injured, but it seems to us that the defendant has done everything that could be reasonably expected of Mm in the way of mitigating damages.</p> <p>4. Same — Amount of Recovery — Instructions —Harmless Error.</p> <p>Record examined, and held: (1) That the trial court did not err in instructing the jury as to the measure of damages. ' (2) That the amount of recovery, while liberal, was fully sustained by the evidence.. (3) That the remaining errors complained of are of the class covered by section 6005, Rev. Laws 1910, and as it does not appear that they probably resulted in a miscarriage of justice, it follows that the judgment below must be affirmed.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Record—Matters Reviewable on Transcript.</p> <p>A transcript brings i.p for review only the record; and motions, the rulings thereon, and exceptions thereto, being no part of the record, proper, cannot be considered on transcript.</p> <p>2. Same — Time of Appeal.</p> <p>Where the appeal is by transcript and is filed in the Supreme Court more than six-months after the last proceeding which can be considered on transcript, this court is without authority to review the action of the trial court.</p> <p>3. Appeal and Error — Time for Appeal— Review.</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, Carter County; W. F. Freeman, Judge. Action by Edward E. Ertel against J. W. Potter and others for interest in oil and gas lease. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Okfuskee County; Lucien B. Wright, Judge.</p> <p>Action between Annie B. Sharp and Julia I.Sharp and others. From the judgment, the former brings error.</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Actions by Martha Miller against J. W. Thompson and others. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus by the Court.)</p> <p>1. Dismissal — Statutory Grounds.</p> <p>The trial court may dismiss plaintiff’s cause of action for reasons enumerated in subdivisions 2, 3, 4, 5, and 6 of section 5125, Revised Laws 1910.</p> <p>2. Same — Procedure — Denial of Continuance.</p> <p>. Where the plaintiff’s attorneys file a motion for a continuance of the trial of the case, and the court overrules said motion, it is error for the court to dismiss plaintiff’s cause of action without first calling the case for trjal, and demanding that the plaintiff proceed with the trial, and if plaintiff refuses to proceed with the trial, then, and not until then, does the court have grounds to dismiss plaintiff’s cause of action.</p>

Error from District Court, Grady County; Will Linn, Judge. Action by Duncan Bros., a partnership composed of W. M. and L. L. Duncan, against Harwell, King & Company, a partnership, composed of W. C. Harwell and T, C. King, as partners, and W. O. Harwell and T. C. King, as individuals, on account. Judgment for plaintiffs, and defendants bring error.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Julia A. Priend against the Southern States Life Insurance Company on life insurance policy. Judgment for defendant, and plaintiff .brings error. (Plaintiff having died, the cause was revived in the name of Charles W. Priend, administrator.)

Error from District Court, McClain County; H B. Swank, Judge. Action by H. G. Harmon against the First State Bank of Blanchard to recover usurious interest. Judgment for plaintiff, and defendant brings error.

Error from District Court, Greer County; Arthur G. Sutton, Assigned Judge. Quo warranto by the State, on the relation of S. P. Freeling, Attorney General, against J. IT. Sullivan and others. Judgment for defendants, and plaintiff brings error.

Error from County Court, Jefferson County ; E. L. Dillard, Judge. Action by the State of Oklahoma seeking to confiscate an automobile, with intervention and claim by D. M. Baldridge. Judgment for the state. From said judgment rendered, claimant brings error.

<p>Error from Superior Court, Okmulgee County; R. E. Simpson, Judge.</p> <p>Action by Mary Barker against the Creek Coal & Mining Company for damages for negligent death of her ' husband. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Osage County; Preston A. Shinn, Judge. Action toy the State, on relation of W. T. Mosier and others, for writ of mandamus to R. L. Carroll, J.' M. Buckley, H. M. Loomer, Commissioners of the City of Pawhuska, and others. Judgment for plaintiff, and defefid-ants bring error.

Error from District Court, Jefferson County; Cham Jones, Judge. Proceedings for appointment of guardian for Mildred Coats, a minor; R. F. Benton, petitioner, and C. M. Coats, protestan! Judgment affirming order appointing petitioner, and pfotestant brings error.

<p>(Syllabus by the. Court.)</p> <p>1. Appeal and Error — -Case-Made—Time for Service — Dismissal.</p> <p>A purported case-made which is not served within 15 days after the judgment or order is entered, or within an extension of time duly allowed, is a nullity and cannot be considered by the Supreme Court.</p> <p>2. Same — Notice of Settlement of Case-Made.</p> <p>Where it does not affirmatively appear that notice of time and place of signing and settling a case-made was served on opposing party or his counsel, or that such notice was waived or that opposing party was present in person or by counsel, the appeal w-ill be dismissed on motion of the defendant in error.</p> <p>3. Same — Time for Service of Case-Miade— Case-Made as Transcript.</p> <p>Where a case-made is not served until after the expiration of the time allowed by a valid order of the court extending the time for such preparation and service, it is void, and, although such case-made may be cérti-fied as a transcript of record, the proceeding in error will be dismissed where the petition in error presents no assignment which can be reviewed upon a transcript.</p>

<p>Error from District Court, Alfalfa County; James B. Cullison, Judge.</p> <p>Action in replevin by S. N. Myers against Harry Hubbard and another for the recovery of a certain crop of wheat. Judgment for the defendants, and plaintiff brings error.</p>

Action by Wiillie Henshaw, a minor, by Pleas Henshaw, her legal guardian, against A. O. Johnson and another. Judgment for •plaintiff was affirmed (80 Okla. 58, 193 Pac. 998), and plaintiff, moves for judgment against sureties on supersedeas bond.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action to determine the valuation of corporate property of the Chickasha Cotton Oil Company for taxation purposes.</p>

<p>Error from District Court, Grady» County; Will Linn, Judge.</p> <p>Action to, determine the valuation of corporate property of the Chickasha Milling Company for taxation purposes.</p>

<p>Error from County Court, Tillman County.</p> <p>Action by the State of Oklahoma against Jeff Oxford. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by C. E. Eraneen and wife against the Oklahoma Star Oil Company and another to cancel an -oil and gas lease. Judgment for defendants, and plaintiffs bring error.

Error from' District Court, Oklahoma County; John W. Hayson, Judge. Action by Walter D. Caldwell against George Stiles and others on supersedeas bond given in replevin action. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Corporations — Receivers — Mismanagement — Action by Minority Stockholder.</p> <p>Where the property of a corporation is being mismanaged or is in danger of being lost to the stockholders and creditors through mismanagement, collusion, or fraud of its officers and directors, a court of equity has inherent power to appoint a receiver for the property of such corporation, and to require the officers to make an accounting upon petition of a minority stockholder therefor.</p> <p>2, Same — Prerequisites to Suit — Demand Upon Officers.</p> <p>Where the officers, of whose mismanagement and misconduct the plaintiff stockholder complains, are in control of the corporation, both by being the officers thereof and the holders of a majority of the stock, it is not necessary for a complaining stockholder to show, as a condition necessary to maintain his suit, that he first made demand on said officers to proceed on behalf of the corporation to remedy the wrongs complained of.</p>

Error from District Court, Grant County; W. M. Bowles, Judge. Action . by Minnie Slocum and others against C. S. Wire for the conversion of wheat. Judgment for plaintiffs, and defend'ant brings error.

Error from Superior Court, Muskogee County; H. C. Thurman, Judge. Action by George W. McLain against Maggie McLain and another to caneel deed and for rents and money received. Judgment for defendants and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>1. Homestead — Conveyance — Validity—Unmarried Owner.</p> <p>The laws of this state do not prohibit the unmarried owner, of land impressed with the homestead character from executing a valid deed therefor or mortgage thereon, without the consent of the members of his family.</p> <p>2. Same — Wills — Devise of Homestead— Construction.</p> <p>Record examined, and held, (1) that the will herein involved, assuming, as the parties do, the same to be valid, devised the entire estate to Henrietta Roberson subject to the limitations therein set out, with a contingent remainder over to her minor children; (2) that in these circumstances Henrietta Roberson was authorized by the teSrms of the will to execute the instruments herein involved.</p> <p>On Rehearing.</p> <p>3. Wills — Eights of Child Unprovided For.</p> <p>Where a father makes a will and a child is born thereafter, either in the lifetime or after the death of the father, leaving such child unprovided for by any settlement, nor provided for nor mentioned in any way in the will, by virtue of section 8371, Rev. Laws 1910, the child succeeds to the same portion of the testator’s real and personal estate that lie would have succeeded to if the testator had died intestate, and such child does not acquire his property by virtue of the will, but by inheritance, as if the testator had died intestate.</p>

Error from District Court, Major County; J. C. Robberts, Judge. Action by the Commercial Bank of Way-noka against S. J. Caldwell and others upon a promissory note and to foreclose a mortgage given to secure the same. Judgment for plaintiff, and the defendant named brings error.

Error from Superior Court, Okmulgee County; R.. B. Simpson, Judge. Consolidated actions by Joe Moses and by Joe Moses and Charles Maroon, as partners, against M. George. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Choctaw County; C. E. Dudley, Judge. Action by W. E. Schooler against George G. Graham for share of partnership assets, with attachment proceedings in which Nancy P. Graham intervened. Judgment for plaintiff, and defendant and intervener bring error.

<p>(Syllabus by the Court.)</p> <p>1. Injunction) — Enforcement of Oity Ordinance — Irreparable Injury.</p> <p>Where the enforcement of a city ordinance is attacked by appeal to the district court on the ground of the invalidity of the ordinance, injunction will not lie to restrain enforcement of such ordinance pending appeal unless it appears that complainant is in immediate danger of irreparable damage pending such appeal.</p> <p>2. Same — Adequate Remedy at Law.</p> <p>A court of equity will not lend its powers to enjoin the enforcement of a city ordinance pending an appeal wherein the validity of such ordinance is attacked and wherein complainant has adequate remedy at law.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Case-Mad®—Settlement— Judges.</p> <p>A case-made signed and settled by the successor of the judge who tried the case, in the absence of a showing as to the inability of the trial judge so to do, is a nullity.</p>

<p>Appeal from State Industrial Commission.</p> <p>Prom action of Industrial Commission in denying the filing of petition by L. W. Parker, he appeals.</p>

<p>Error from District Court, Hughes County; Geo. E. Crump, Judge.</p> <p>Action by J. L. Hughes against Alexander New and H. C. Perris, receivers for the Missouri, Oklahoma & Gulf Railway Company, to recover damages for personal injury. Judgment for plaintiff, and defendants bring error.</p>

<p>(Syllabus by the Court.)</p> <p>Oil and Gas — Lease—Construction—Delay in Development.</p> <p>Where an oil and gas lease contains an express stipulation for delay in development by the payment of rentals, held, that an implied covenant for development will not be permitted to change the agreement, of the parties.</p>

<p>(Syllabus by the Court.)</p> <p>1. Appeal and Error — Jury—Waiver of Jury Trial.</p> <p>A jury may bo waived without a written stipulation, where the parties to an action make no request for a jury at any stage of the trial or prior to the commencement thereof, and submit their testimony to the court without a jury. No question of a jury trial having been raised upon the trial of the cause, it is too late for the first time to object in this court that such consent had not ■been made, and where no request for a jury appears of record, the jury will be considered waived.</p> <p>2. Trial — Right to Special Findings and Conclusions — Waiver.</p> <p>Under the provisions of section 5017, Rev. Laws 1910, either party may require a special finding of facts and separate conclusions of law by making timely request therefor. Where no request is made until after the court has announced general findings and conclusions, the right will be deemed to have been waived.</p> <p>3. Attorney and Client — Fees—Lien on Land —Contract With Indian Minor.</p> <p>Where an unrestricted Creek freedman, while a minor over 18 years of age, through his guardian, made a contract with an attorney to bring suit to recover his allotment, then held adversely by his former attorney under á pretended deed previously made to him by said minor, and by virtue of said contract of employment his said attorney •brought suit in behalf of said minor in the district court, and rendered valuable services and procured a judgment in favor of said minor canceling the pretended deed given to his former attorney, from which his former attorney appealed to the 'Supreme Court of this state, and while said appeal was pending and after said minor had attained-his majority, he made a: new contract with his attorney, agreeing to pay him a fee of an amount of not less than one-third and not more than one-half. of the recovery, to be fixed by the district court, in consideration of services already rendered and to be thereafter rendered by liis said attorney, and granting to his said attorney a lien upon the . land recovered to secure such fee, and of which contract' his former attorney was charted with notice, and he thereafter procured a deed from said minor for a recited consideration of $400, and thereafter dismissed his appeal, in a suit by said attorney to recover his fee and to have the amount recovered to be declared a lien upon the land, held, the trial court committed no error in rendering judgment in favor of the attorney for $1,200, and declaring the same to be a first lien upon the land in controversy.</p> <p>4. Mortgages — “Holder in Due Course”— Notes Held as Collateral for Debt of Payee.</p> <p>One who has deposited with him by the payee certain promissory notes negotiable in form, and before the maturity thereof, as collateral security for a debt or debts owed by the payee in said notes to the holder thereof, which notes are secured by mortgage on land, is a “holder in due course,” and on default in the payment of his debt owed by the payee in said notes, is entitled to sue upon the same, and for a foreclosure of the mortgage given to secure the notes, in the absence of notice of any infirmity that may exist in said notes and mortgage; and this is true where the legal title to the land covered by the mortgage is in another, provided such other purchased the land with notice, actual or constructive, of the existence of such mortgage.</p> <p>5. Same — Suit for Foreclosure — Defense by Purchaser of Land — Fraud.</p> <p>Where notes are regular upon their face and negotiable in form, and mortgages given to secure the same upon land are duly recorded as required by law, and the same are by the payee and mortgagee, and before maturity of the notes, assigned to Ms creditor as collateral security for his indebtedness to such creditor, and thereafter a third party purchases the land covered by the mortgages, held that, in a suit by the holder upon the notes and to foreclosé the mortgages upon the land, such purchaser will not be permitted to urge as a defense the question of fraud in the execution of said notes and mortgages; that the trial court was in error in sustaining such defense.</p>

<p>(Syllabus by the Court.)</p> <p>Appeal and Error — Time for Proceedings.</p> <p>Where more than six months has intervened between the rendition of the final order 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.</p>

Error from District Court, Garvin County; E. B. Swank, Judge. Action by J. T. Blanton, O. W. Patchell, and E. W. Patchell against Annie Gardner and James Chisholm for the possession of certain land in Garvin County and for the rents and profits derived therefrom pending the suit. Erom an order of the district court overruling motion for new trial, defendants bring error.

Error from District Court, Pontotoc County ; J. W. Bolen, Judge. Proceedings for probate of will of Philip Payton; Nancy Bell 'Shipley, xiroponent, and Noah Payton, contestant. Judgment admitting will to probate, and contestant brings error.

Error from District Oourt, Hughes County; Geo. Crump, Judge. Action by Lelia Bruner and others, minors, -by next friend and guardian, W. E. Kirby, against J. S. Bearden for money had and received. Judgment for defendant, and plaintiffs bring error.

Error from District Court, Nowata County ; W. J. Campbell, Judge. Action by J. A. Tillotson and others against H. M. Martin and others to cancel oil and gas lease and for other relief. Judgment for defendants, and plaintiffs bring error.

Error from Superior Court, Tulsa County; M. A. Breekenridge, Judge. Action by Max Madansky against O. N. West to cancel assignment of oil lease. Judgment for plaintiff, and both parties bring error.

Error from District Court, Grady County; Will Linn, Judge. Action by May Lenochan and others against the Board of Commissioners of Grady County and others to cancel taxes and tax sale certificate. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus by the Court.)</p> <p>1. Evidence — Hearsay—Pedigree—Heirship.</p> <p>The introduction of hearsay testimony to prove pedigree of persons is often permissible upon the ground of the interest in declarations of persons from whom the descent is made out, and their consequent interest in knowing the connections of the family, but the rule is restricted to the declarations of persons, deceased, who were related by blodd or marriage to the person, and therefore interested in the succession in question, and limited to the members of the family, who may be supposed to have known the relationship which existed in its different branches.-</p> <p>2. Same.</p> <p>It is difficult, if not impracticable, to deduce from the books any precise and definite rule relating to the introduction of hearsay testimony in case of pedigree, as the rule must vary by the circumstances in each case, and it is not every statement or tradition in the family that can be admitted in evidence, but the same must be from persons having such a connection with the party to whom it relates that it is natural and likely, from their domestic habits and connections, that they are speaking the truth and they could not be mistaken.</p> <p>3. Trial — Directing Verdict.</p> <p>The court may direct the jury to- return a verdict where the undisputed facts are of such conclusive character that the court in its sound judicial discretion would be compelled to set aside the verdict returned in opposition to it.</p> <p>4. Descent and Distribution — Action for Land Against Administrator and Heirs— “Contingent Claim” for Rents.</p> <p>In an action against the administrator and the heirs of deceased to recover possession of certain land, which is held adversely to plaintiff, and for rents for the use and occupancy of said land during the time the same has been adversely held, the claim for rents of the land is a contingent claim, such as provided for in sections 6338 and 6348, Revised Laws 1910, -and may be presented within one month after the final determination of the suit adjudicating the title to said real estate.</p> <p>5. Same — Claim Against Estate — Enforcement by Action Against Heirs.</p> <p>Where a claim against the estate of a deceased person does not accrue or become enforceable until after the administration oí the estate has been distributed and passed into the hands of the heirs, it's collection may be enforced by a direct action, in the district court, against the heirs of the deceased, and they may be held liable in such an action to the extent of the assets received by them from the estate.</p> <p>6. Descent and Distribution — Indian Allotment.</p> <p>Julius Webster, a full-blood Choctaw Indian, died seised of his allotment, leaving as his sole heir Ella Webster, his daughter, also enrolled as a full blood, who thereafter died in 1920 seised of her own allotment and the. allotment inherited from her father, Julius Webster, leaving as next of kin, an aunt of the whole blood and an aunt of the half-blood, one being a full sister and one a half sister of Julius Webster, both enrolled as full bloods. Held, by virtue of section 8427, Revised Laws 1910, the two aunts, one being of the half-blood and one of the full-blood in the same degree from deceased, both being of the blood of Julius Webster and Ella Webster, the allotment descended to them in equal shares.</p>

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by J. D. O’Brien and another against the Yan Arsdale-Osborne Brokerage Company to set aside judgment. Judgment for defendant, and plaintiffs bring error.</p>

<p>Error from District Court, Craig County; Preston S. Davis, Judge.</p> <p>Action by William M. Grimmett against Pansy Grimmett and others to recover land. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus by tbe Oourt.)</p> <p>1. Indians — Alienation of Lands — Exclusive Power of Congress to Regúlate.</p> <p>Tbe Enabling Act under which tbe state of Oklahoma was admitted into tbe Union provides, “that nothing contained in said Constitution shall be construed to limit or impair tbe rights of persons or property pertaining to tbe Indians of said territory (so long as such right shall remain unextingu-ished) or to limit or affect the authority of the government of the United States to make any law or regulation respecting such Indians, their lands, property or other rights by treaties, agreement, law or otherwise, which it would have been competent to make if this act had never been passed.” The Constitutional Convention by resolution accepting the Enabling Act provided, “that said Constitutional Convention do, by this ordinance irrevocable, accept the terms an<J conditions of an act of the Congress of thé United States, entitled ‘An Act to enable the people of Oklahoma and the Indian territory to form a Constitution and state government and be admitted into the Union on an equal footing with the original states.’ ” Under these provisions of the Enabling Act and of the said resolution accepting the terms of same the right and power to regulate and control the sale of Indian lands in the state of Oklahoma remain vested exclusively with the Congress.</p> <p>2. Indians — Approval of Conveyances by County Court — Ministerial Act.</p> <p>Section 9 of the act of Congress of May 27, 1908, provides, “that the death of any allottee of the Five Civilized Tribes operates to remove all restrictions from the alienation upon said allottee’s land; provided, that no conveyance of any interest of any full-blood Indian heirs in such land shall be valid unless approved by the court having jurisdiction of the settlement of the estate of said deceased allottee.” This provision constitutes the county court, having jurisdiction of the estate of a deceased Indian allottee, a federal agent, vested with the power to approve conveyances of the interest of full-blood heirs in such inherited lands, and the act of the county court in approving the conveyance of such full-blood Indian is a ministerial and not a judicial act.</p> <p>3. Same — Procedure for Approval — Power of State Legislature.</p> <p>Chapter 198, Session Laws of 1915, sec. 2, provides: “All petitions for the approval of deeds to lands inherited by full-blood Indian heirs shall be verified by one or'more of the grantors, and shall contain the following information,” etc. Held, that the state legislature has no power to enact a statute that affects the validity of conveyances by. full-blood Indian heirs. This right and power being vested exclusively in the Congress, the above quoted act of the Legislature is directory and not mandatory, and the failure of the approving federal agency to comply with the terms of same or to require the vendor or vendee in such conveyance to comply with same does not invalidate such conveyance.</p>

<p>(Syllabus by the Court.)</p> <p>Attorney and Client — Disbarment Proceeding —Suspension from Practice.</p> <p>Record examined, report of referee approved, and ordered that respondent be suspended from the practice of law in this state for a period of six months.</p>

Error from District Court, Harper County; W. 0. Crow, Judge. Action by Essie Tanner, administratrix of the estate of Fred C. Tanner, deceased, against G. B. Crawford. Judgment for defendant, and plaintiff brings error.

■ Error from District Court, Creek County; Lucien B. Wright, Judge. Actions between Joseph W. Brown, administrator of the estate of Sarah A. Doyle, deceased, and others and James R. Parks and Minnie Lee Cornelius, executors of the will and estate of W. D. Cornelius, and others (Nos. 6810 and 6812 in district court, consolidated). From the judgments, the parties first named bring error.

Error from District Court, Haskell Coun-' ty; W. H. Brown, Judge. Action by Jane Nero against Joe Nero and others, as tenants, employees, etc., of Joe Nero, for recovery of land and for rents. Judgment for plaintiff, and defendant named brings error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by tlie Massachusetts Bonding & Insurance Company against S. R. Lewis and John M. Ingram on indemnity bond, Judgment for plaintiff for less than sued for, and it 'brings error.

<p>(Syllabus by the Court.)</p> <p>1. Libel and! Slander — Classes of Libelous Words. .</p> <p>Words charged to be libelous may be divided into three classes: First, those that cannot possibly bear a defamatory meaning; second, those that are reasonably susceptible of a defamatory meaning, as well as an innocent one; third, those that are clearly defamatory on their face.</p> <p>2. Same — Construction of Words.</p> <p>Words used in an alleged libelous article are to be construed by their most natural and obvious meaning, and in the sense they would be understood by those reading the article.</p> <p>3. Same — Words Not Actionable Per Se— Allegations — Innuendo.</p> <p>If the alleged defamatory words are not actionable on their face, but derive their defamatory import from extrinsic facts and circumstances, such extrinsic facts and circumstances must be set forth and connected with the words charged by a proper averment. Words not actionable per se may be made to appear actionable by averring such extrinsic facts as will show that they were intended to be libelous and were so understood. These averments must be distinctly stated in the inducement, and applied to the plaintiff by a proper colloquium, with the intended and understood meaning correctly set out in the innuendoes.</p> <p>4. Same — Trial—Questions for Court and Jury.</p> <p>If alleged defamatory words are not actionable on their face, but derive a defamatory import from extrinsic facts and circumstances which are pleaded by way of inducement, colloquium, and innuendo, it becomes the duty of the trial court to determine whether the language used in the pub-licaiion can fairly and reasonably be construed to have a meaning imputed to it by the pleader, and if the court determines the words are susceptible of the meaning attributed to them by the pleader, it-then becomes a question of fact for the jury to determine under all the circumstances whether they were intended to mean what the pleader avers they do.</p> <p>5. Same — “Libelous Words” — Requisites.</p> <p>The fact that a publication may be unpleasant and annoy or irk the subject thereof, and may subject him to jest or banter, so as to affect his feelings, is not, standing alone, sufficient to make it libelous. In order to be libelous it must tend to lower him in the opinion of men whose standard of opinion the court can properly recognize or tend to induce them to entertain an ill opinion of him.</p> <p>6. Same — Words Not Actionable Per Se— Direction of Vei’dict.</p> <p>If the alleged defamatory words are not actionable upon their face, but derive their defamatory import from extrinsic facts and ’ circumstances, it is error for the trial court to instruct the jury to return a verdict for the plaintiff.</p>

<p>(Syllabus by the Court.)</p> <p>1. Prohibition — Inferior Tribunals Exceeding Powers.</p> <p>Prohibition is the proper remedy; where an inferior tribunal assumes to exercise judicial power not granted by law, or is attempting to make an unauthorized application of judicial force, and the writ will not be withheld because other concurrent remedies exist; it not appearing that such remedies are equally adequate and convenient.</p> <p>2. Corporation Commission — Jurisdiction Over Public Utilities.</p> <p>By chapter 93, Session Laws 1913, jurisdiction is conferred upon the Corporation Commission over all public utilities, with the power to fix and establish rates and prescribe rules, requirements, and regulations affecting their services and operation and the management and conduct of their business. and under the powers thus conferred the commission is vested with authority to make all valid and lawful orders prescribing rates which the state, in the exercise of its sovereign capacity, could prescribe or make.</p> <p>3. Same — “Rate” — Constitutional Definition.</p> <p>Section 34, art. 9, of the Constitution defines the word “rate” as follows: “The term ‘rate’ shall be construed to mean rate of charge for any service rendered or to be rendered.”</p> <p>4. Gas — Increase in Rates — Purpose—Authority of Corporation Commission.</p> <p>The Corporation Commission has no authority to require consumers of gas in a city, who purchase gas from a local company that owns a franchise in the city, to pay an additional sum or rate for the use of any other public service corporation, simply because the other public service corporation furnishes gas to the local company under contract and receives in payment a certain per cent, of what the local company collects from the consumers.</p> <p>5. Judgment — Validity—Essentials.</p> <p>A judgment is void when it affirmatively appears from an inspection of the judgment roll that either of the three following elements is absent, to wit: (1) Jurisdiction over the person, (2) jurisdiction of the subject-matter, and (3) judicial power to render the particular judgment.</p> <p>6. Corporation Commission — Public Utilities — Basis of Rate Regulation.</p> <p>In determining what is a fair and reasonable rate, it is essential that the Corporation Commission determine the value of the property of the public utility used and useful in serving the people.</p> <p>7. Same — Jurisdiction of Commission.</p> <p>The Corporation Commission of this state has such jurisdiction and authority only as is expressly or by necessary implication conferred upon it by the Constitution and the statutes.</p> <p>8. Gas — Increase in Rates to Provide Special Fund — Order of Corporation Commission —Validity—Prohibition.</p> <p>The Corporation Commission has no authority to make an order requiring the consumers of gas to pay an' additional sum over and above a fixed rate, for the purpose of creating a special fund, called a patrons’ fund, which may be used in the future by the public service corporation with the consent and agreement of the Corporation Commission to build additional lines and compressor stations. The commission having no authority to make said order, the same is void, and prohibition will lie to enjoin the enforcement thereof.</p>

<p>Error from District Court, Creek County; Ernest B. Hughes, Judge.</p> <p>Action by S. P. Romans against L. O. Shannon on contract. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Tulsa County; N. E. McNeill, Judge. Actions by the Home Savings & Loan Association against J. W. Kennedy on note and mortgage and by the Rounds-Porter Lumber Company against J. W. Kennedy, the Home Savings & Loan Association, and others on debt for material. Actions consolidated, and judgment for the loan association against Kennedy, and for the lumber company against Kennedy and the loan association, and the latter brings error.

<p>Error from District Court, Creek County; Lucien B. Wright, Judge.</p> <p>Action by G. J. Smith and Wallace Doolin against the Eastern Oil Company to cancel oil lease. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Hughes County ; Geo. C. Crump, Judge.</p> <p>Action in ejectment by John A. Jacobs against Nicholas Y. Bilby. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Tulsa County; H. L. Standeven, Trial Judge. Action by Martha J. Stringer against Earl W. Sinclair, administrator of the estate of Fred D. Zeigler, deceased. Judgment for plaintiff, and defendant brings error.

<p>Error from State Industrial Commission.</p> <p>From order of Commission refusing to award compensation for personal injuries to Adolf Stasmos, be brings error.</p>

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Turner Starr against AY. P. Thompson and another to quiet title. Judgment for defendants, and plaintiff brings error.

Error from County Court, Tulsa County; W. B. Williams, Judge. Proceedings bv the State to forfeit wagon and team used in transportation of intoxicating liquors, with intervention by 'the owner, G. T. Rouse. From judgment of forfeiture, the intervener brings error.

Error from District Court, Wagoner County; Chas. G. Watts, Judge. Action by the Bartlett Bros. Land & Loan Company against Ed L. Rees, Margaret M. Rees, H. P. Showalter, Edwin S. Ripley, J. L. DeGroot, and W. K. Foster to foreclose mortgage. Demurrer to petition sustained, and plaintiff brings error.

Error from District Court, Garfield • County; J. O. Robberts, Judge. Action by William King and J. 'S. Slike, partners, doing business under the firm name and style of King & Slike, against the Rush Creek Oil & Gas Company, a corporation, and others, intervention by Medora Gibbs. Erom a judgment for plaintiffs against defendants and intervener, defendant Rush Creek Oil & Gas Company and intervener bring error.

Error from District Court, Le Flore County; W. H. Brown, Judge. Action by J. -S. Hill and another against H. M. Montgomery in forcible entry and de-tainer. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Grady County: Cham Jones, Judge. Action by L. C. Linn and another against the Chickasha Gas & Electric Company for damages to crops. Judgment for plaintiff named, and defendant brings error. Upon death of L. C. Linn, action revived in name of Conn Linn, executor.

<p>Error from District Court, Payne County; John P. Hiekam, Judge.</p> <p>Action by Robert Shoemaker against A. L. Treese to recover broker’s commission. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by R. H. Walker and Anna Walker against L. Elson for recovery of penalty for usury. Judgment for plaintiffs and defendant brings error.

<p>(Syllabus by tLe Court.)</p> <p>1. Appeal and Error — Harmleiss Error — Admission of Evidence.</p> <p>A party cannot complain of tbe admission ’ of evidence over bis objection to a single question where be permits like evidence of another witness to be admitted without objection.</p> <p>2. Appeal and Error — Review — Sufficiency of Exceptions — Instructions.</p> <p>An exception to written instructions taken in the following form: “Plaintiff objects and excepts to the court giving the instructions as a whole and to each and every paragraph, sentence and statement at the time” — is too general and not sufficient under section 5003, Rev. Laws 1910, to bring before this court for review any particular instruction.</p> <p>3. Appeal and Error — Waiver of Errors— Briefs.</p> <p>Errors in refusing instructions excepted to and assigned as error, but which alleged errors are not argued in the brief of complaining party, will be regarded as waived and not to be considered by this court.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by Samuel A. Stemen and another against H. M. Wampler and others to quiet title. Judgment for plaintiffs, and defendant named brings error.

Error from District Court, Stephens County; Cham Jones, Judge. Action by Esther C. Smith against the Healdton Oil & Gas Company to recover rentals on oil lease. From a judgment for plaintiff, defendant brings error.

<p>(Syllabus by the Court.)</p> <p>Appeal and Error.— Case-Made — Extension of Time — Validity of Orders.</p> <p>When the time fixed for making and serving a case-made is allowed to elapse, the trial count thus loses jurisdiction of the cause, and an order subsequently made by the trial court extending the time for making and .serving a case-made is a nullity; and a ease-made, made and served by virtue of such'order of extension, is a nullity, and confers no jurisdiction upon this court.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by W. B. Vaughn and B. B. Vaughn against O. P. Smith, J. M. Hines, and T. F. Murray for cancellation of an oil and gas lease, and to remove cloud on title to real estate caused thereby. From a judgment for defendants, plaintiffs bring error.

<p>Error from District Court, Pawnee County ; N. E. McNeill, Judge.</p> <p>Action by the Oklahoma Petroleum & Gasoline Company against the Minnehoma Oil Company for injunction. Judgment of dismissal, and plaintiff brings error.</p>

Error from District Court, Creek- County; Ernest B. Hughes, Judge. Action by Richard M. Jones, by Mrs. Florence Mathews, his next friend, against Charles Conley for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from District Court, Carter County; W. E. Freeman, Judge. Action by Jimmie Johnson and others against E. T. Haddock and K. H. Chowning to cancel conveyance of full-blood Indian heirs. Judgment for plaintiffs, and defendants bring error.

1785 of the Corporation Commission (Jake Sims, appellant; the State of Oklahoma, appellee) to reverse the order of said commission prescribing the retail price of bagging and ties to be charged by the operators of gins within the State of Oklahoma for the season of 1920.

Error from District Court, Cleveland County; F. B. .Swank, Judge. In the matter of the estate of Minnie A. Green, deceased. Petition by T. E. Rogers, administrator, to vacate (order of county court releasing former administrator’s sureties, Chas. Greemore and E. M. Abernathy. On appeal in district court, demurrer to petition sustained, and petitioner brings error.

<p>Error from District Court, Comanche County; Cham Jones, Judge.</p> <p>Action by B. O. Gillam against Albert W. Marker, administrator of the estate of George Marker, deceased. Judgment for plaintiff, and from a nunc pro tunc order correcting journal entry after affirmance upon appeal, defendant brings error.</p>

Error from District Court, Kay County; J. W. Bird, Judge. Action by G. M. Probaseo, administrator of the estate of Susan S. Strom, deceased, against John E. Hoefer, executor of the will of Joseph Strom and the heirs of Joseph ■Strom, to enforce an antenuptial contract and declare a resulting trust. Judgment for plaintiff, and defendants bring error.

Error from District Court, Kay County; W. M. 'Bowles, Judge. Action by Fairbanks, Morse & Company, a corporation, against Joseph C. Miller and others on promissory note. Judgment for defendants, and plaintiff brings error.

<p>(Syllabus by the Court.)</p> <p>Judgment — Guardian and Ward — Order of Court — Collateral Attack.</p> <p>The county court has power to determine the amount due for money advanced for support and education of a minor, where guardianship proceeding is pending in such court, and an -order, upon petition filed in such guardianship proceeding, asking allowance and payment of such claim, is not subject to collateral attack, although said order may lie erroneous and subject to review on appeal.</p>

Error from District Court, Jackson County; Frank Mathews, Judge. Action by Peter Gravelle against the Farmers’ State Bank of Olustee to recover penalty for usurious interest paid. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Seminole County; J. W. Bolen, Judge.</p> <p>In the matter of the estate of Louis H. Ivy, deceased. Prom judgment affirming allowance of claim for burial expenses, C. Dale Wolfe, administrator, brings error.</p>

Error from District Court, Seminole County; Geo. C. Crump, Assigned Judge. Action by the Southwestern Surety Insurance Company against James Roberts and others on note. From a judgment for plaintiff, defendants 'bring error.

<p>(Syllabus by the Court.)</p> <p>1. Negligence — “Licensee” — Consent of Owner.</p> <p>To malte one a licensee upon the premises or property of another, it must be shown that he is there by permission or authority of the owner, or his authorized agent. The permission and authority amounting to a license must be expressly or impliedly granted and mere sufferance or failure to object to one’s presence upon another’s premises is insufficient within itself to constitute a license, unless under such circumstances that permission should be inferred.</p> <p>2. Negligence — “Invitation.”</p> <p>Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation.</p> <p>8. Railroads — Care Required — Boy Riding on Pilot Step of Engine — Invitee.</p> <p>The permission of a railroad company’s night watchman for plaintiff to assist him in his work, and to ride on the pilot step of a steam engine, did not make plaintiff an in-' vitee, it appearing that the night watchman had no authority to invite plaintiff to assist him or to permit him to occupy a place on the engine pilot.</p> <p>4.Same — Licensee.</p> <p>The permission of the railway company’s night watchman, in violation of the rules and regulations of the company and his general instructions, to a 15 year old boy to ride on the pilot step of an engine, operated by the watchman, did not make the boy a licensee.</p> <p>5. Same-Duty to Trespasser.</p> <p>Although a trespasser is a wrongdoer, and courts do not ordinarily aid him, nevertheless, the owner of the premises (the railroad company in this case) owes him the duty not to wantonly and willfully injure him, and if discovered in a perilous position, it owes him the duty to exercise ordinary care to avoid injuring him.</p> <p>6. Same — Boy Trespasser — Negligence.</p> <p>If a 15 year old trespasser, riding on the pilot step of an engine on his own volition or with permission of the night watchman in charge of the engine, for the purpose of signaling the watchman, was capable or apparently capable of exercising judgment and discretion and taking care of himself under the circumstances, it was not negligence for the watchman to run the engine.</p> <p>7. Negligence — Care Required As to Children.</p> <p>While some authorities, on the supposed analogy to the ■ rule of the criminal law, hold that a child between the ages of seven and 14 years is presumptively incapable of exercising judgment and discretion, and that after he has attained the age of 14 the contrary presumption prevails, it cannot be universally presumed that persons at a definite age, say 14 years, pass suddenly from incapacity td full capacity and discretion. There is no foundation for such a presumption, and the better rule is that it is a question for the jury to determine, without regard to any arbitrary presumption, whether the particular person has capacity to understand the danger and ability to take care of himself under the circumstances.</p> <p>8. Same — Duty to Trespasser, in Peril.</p> <p>The age, ability, and competency of a trespasser are immaterial when the master’s servants discover him in a position of peril from which he cannot apparently extricate himself or take care of! himself under 'the circumstances.</p> <p>9. Railroads — Duty to Boy Riding on Engine Pilot Step — Negligence — Question for Jury.</p> <p>Whether or not it was negligence to start and run an engine with a boy between the ages of 15 and 16 years standing on the pilot step is a question for the jury.</p> <p>Ramsey, J., and Harrison, Y. O. J., dissenting.</p>

<p>(Syllabus by the Court.)</p> <p>1. Insurance — Fire Insurance — Authority of Agent — Oral Agreement to Renew Policy.</p> <p>Where a fire insurance company appoints an agent with authority to receive applications for insurance, pass upon and accept or reject the risk, receive the premium and issue the policy therefor, and on the expiration of policies in force to re-insure said property under a new policy issued by the'agent, such person' is a general agent for the company and he may, by oral agreement to renew a policy which has just expired, bind his principal by such oral agreement.</p> <p>2. Same — Failure of Agent to Issue Renewal Policy — Loss by Fire — Action Against Company for Damages.</p> <p>Where such agent agrees to issue a policy of insurance or re-insure the property the policy of insurance' on which has just expired and the agent fails to issue said policy of insurance, and the person contracting for such insurance suffers a loss, such person may maintain an • action in damages against the insurance company said agent is representing to recover the damage he sustained by reason of the failure of the insurance company to issue the policy.</p> <p>3. Same — Measure of Damages. ■ -</p> <p>The measure of damage in such case would be the amount the plaintiff would have been entitled to recover under the policy of insurance had the same been written.</p> <p>4. Same — Contract for Renewal of Policy— Sufficiency of Evidence.</p> <p>The evidence examined, and held, that it is sufficient to constitute a contract for the renewal of the policy of the insurance, and ‘the jury having found in favor of the.plaintiff, this court will not disturb the findings of the jury where there is sufficient evidence to support such findings and verdict.</p> <p>5. Appeal and Error — Harmless Error — Instructions.</p> <p>Where it is manifest by the verdict that the jury was not misled by the giving of an erroneous instruction, and no prejudicial error was committed, the case will not be reversed because of such erroneous instruction.</p> <p>6. Appeal and Error — Damages for Failure of Insurance Company to Issue Fire Policy — Verdict—Evidence.</p> <p>The amount of damages awarded to plaintiff by the jury is supported by the evidence, and the verdict having received the approval of the trial court trying the cause, the verdict will not be disturbed because the jury might have found a different amount of damages under the testimony of a witness for the plaintiff.</p>

Error from District Court, Wagoner County; Chas. G. Watts, Judge. Action by R. F. Mann and another against Foil M. Brady to recover a real estate agent’s commission under a contract giving the plaintiffs a 90-day option to sell certain lands belonging to defendant which included his restricted homestead. Defendant’s demurrer to the petition was sustained, action dismissed, judgment in favor of defendant, and plaintiffs appeal.