Volume 81 — Oklahoma Reports

Error from District Court, Woods County; W. C. Grow, Judge. Action by M. T. Bell against L. E. Harrington and others on promissory note. Judgment for defendants, and plaintiff brings error.

Error from District Court, Nowata County ; W. J. Campbell, Judge. Action hy A. D. Little against S. S. Mehard and Robert Law, Jr., administrators of the estate of T. N. Barnsdall, to quiet title. Judgment for plaintiff, and defendants bring error.

Error from District Court, Tulsa County; Owen Owen, Judge. Action by the Magna Oil & Refining Company against the Uncle Sam Oil Company-for damages for breach of contract. From order discharging attachment, plaintiff brings error.

Error from District Court, Washita County; Thomas A. Edwards, Judge. Action by John B. Williams against P. P. Finerty and another for conversion. Judgment for plaintiff, and defendants bring error.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. . Action by A. L. Gardner, doing business as A. L. Gardner & Company, and others, against Joseph F. Rumsey to enforce liability of officer of corporation to its creditors. Demurrer to petition sustained, and plaintiffs bring error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Dickason-Goodman Lumber Company, a corporation, against H. P. Sinclair and others to enforce materialman’s lien. Prom a judgment for plaintiff, defendants Hoggson Bros, and H. P. Sinclair bring error.

<p>(Syllabus.)</p> <p>1. Railroads — Street Crossings — Care Required — Safety Devices.</p> <p>The court may, under proper circumstances, submit to the jury the question whether ordinary care requires that a railroad company, when approaching a busy city street crossing, should take some further precaution for the protection of the public than the giving of the usual crossing whistle and the ringing of the engine bell, and whether ordinary care requires that the company maintain gates, a flagman, a system of automatic bells, or some other appliance to. warn travelers of the approach of the train, although no statute or ordinance has required any of those particular precautions.</p> <p>2. Same — Signals at Crossings — Statutory Requirements.</p> <p>The statute which requires a railroad company to give certain signals at highway crossings was not intended to furnish a standard by which to determine in every case whether or not such company had failed to discharge its duty in respect to giving sufficient warnings to the traveling public of the approach of its trains. It was intended, rather, to proscribe the minimum of care which must be observed in all cases.</p> <p>3. Trial — Questions for Jury — Negligence— Action for Death.</p> <p>In an action for damages for death, where a given state of facts is such that reasonable men may differ upon the question as to whether there was negligence or not, the determination of the matter is for the jury.</p> <p>4. Negligence — Question for Jury — Constitutional Provision.</p> <p>Article 23, sec. 6, of the Constitution of Oklahoma, is not merely declaratory of the common law, but requires that the defense of contributory negligence and assumption of risk as to questions of fact in all cases whatsoever shall at all times be left to the jury, and the- finding of the jury upon this defense is conclusive upon the court.</p> <p>5. Railroads — Damages for Negligent Death —Instructions.</p> <p>An examination of the instructions discloses that the case was submitted to the jury under proper instructions, correctly stating the law applicable to- the facts in the case at bar.</p> <p>6. Same — Sufficiency of Evidence — Last Clear Chance.</p> <p>From an examination of the evidence, held that there was sufficient evidence to submit the ease to the jury upon the theory of the ihst clear chance.</p>

Error from District Court, Garvin County; F. B. Swank, Judge. Action by Annie Campbell Hatch against the Southern Surety Company and others on guardian’s bond. Judgment for plaintiff, and the defendant named brings error..

Error from District Court, Hughes County; George C. Crump, Judge. Action by William Buch against Joe M. Towery on partnership agreement to purchase land. Judgment for plaintiff, and defendant brings error.

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by J. W. Bennett against J. A. Lamb to collect broker’s' commission. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Muskogee County; R. P. de Graffenried, Judge. Action for damages by Daniel McGilbray et ux. against George W. Davis for value of homestead wrongfully sold prior to the expiration of time for redemption. Judgment for plaintiffs and defendant prosecutes this appeal; plaintiffs filing cross-appeal.

<p>(Syllabus.)</p> <p>Appeal and Error — Dormant Judgment— Failure to Revive — Dismissal.</p> <p>(a) Where a judgment has not been revived within one year irom the time it could have been revived, it becomes dormant.</p> <p>(b) A dormant judgment cannot be revived without the consent of defendant, unless applied for within one year after it becomes dormant.</p> <p>(c) Where a revivor has not been applied for within one year from -the time it could have first been applied for, and the party against whom it is rendered does not consent to revivor after expiration -of the statutory period, the judgment abates and the appeal should be dismissed.</p>

Error from District Court, Kay County; W. M. Bowles, Judge. Action by Rose Whited against the Blackwell Oil & Gas Company and another to cancel oil lease. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>I. Municipal Corporations — Duties — Maintenance of Safe Streets.</p> <p>A municipal corporation is charged with the duty of maintaining its streets in a reasonably safe condition for travel, and this duty rests primarily, as respects the public, upon the corporation; and the obligation to discharge this duty cannot be evaded, suspended, or cast upon others by any act of its own.</p> <p>3.New Trial — Newly Discovered Evidence —Requisites.</p> <p>A rule of wide recognition regarding the granting of new trials on the ground of “newly discovered evidence” exacts that the evidence fulfill the following requirements: (1) It must be such as will probably change the result if a new trial be granted; (2) it must have been discovered since the trial; (3) it must be such as could not have been discovered before the trial by the exercise of due diligence; (4) it must be material to the issue; (5) it must not be merely cumulative to the former evidence; (6) it must not be merely to impeach or contradict the former evidence.</p> <p>3. Trial — 'Demurrer to Evidence — Motion for Instructed Verdict.</p> <p>The defendant’s demurrer to the evidence or motion for an instructed verdict at the close of the evidence is properly overruled, where there is any competent evidence before the jury reasonably tending to support the verdict.</p> <p>4. Trial — Instructions—Sufficiency.</p> <p>Where instructions given, when taken together and considered as a whole, fairly present the law of the case, they will be held sufficient. Instructions examined, and held, to contain no prejudicial error.</p> <p>5.Appeal and Error — Exeessive Verdict — Re-mittitur — Damages for Negligent Death.</p> <p>Evidence examined, and held, that the verdict for $25,000 is excessive upon the facts proven, and that the judgment should be reversed and a new trial granted unless a re-mittitur is filed for all in excess of $15,000 and interest thereon from date of judgment.</p> <p>Harrison, Higgins, Bailey, ' and Collier., JJ., dissenting in part.</p>

Error from District Court, Tulsa County; Redmond S. Cole, Judge. Action by R. C. Woodward and others against the city of Tulsa and others to enjoin the collection of an alleged illegal and unlawful sewer tax. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Blaine County; Thos. A. Edwards, Judge. Action by O. A. Smith against the Oklahoma Moline Plow Company for damages. Judgment for 'plaintiff, and defendant brings error. R. A. Lyle, trustee in bankruptcy, substituted defendant in error.

Error from -Superior Court, Tulsa County; M. A. Breckinridge, Judge. Action by M. 0. McOa-slin and M. J. Mc-Dougle ag-ainst A. B. 0. Dague and others to recover $1,189.65 upon a verbal contract for drilling well in exploring for oil and gas. Judgment rendered in favor of plaintiffs. Defendants appeal.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by the Wooten-Burton Sales Company, a copartnership composed of R. K. Wooten and E. G. Burton, against the Collins Cotton Company, a copartnership composed of E. R. Collins and Robert W. Henderson, and against the partners individually, for damages for breach of warranty in sale of cotton. Judgment for plaintiff, and defendants bring error.</p>

Original action by the State on the relation of Cynthia Monahawee and others against Tom Hazelwood, County Judge of Okfuskee County, and others for writ of prohibition.

<p>Action by 'the State against One Certain Hupmobile, T. C. Wilson, and others to forfeit automobile used in transportation of intoxicating liquor. Judgment for plaintiff, and defendants bring error.</p>

Error from District Court, Seminole County; Geo. C. Crump, Assigned Judge. Action by Moty Cudjo, a Seminole freedman, against M. M. Smith and others to cancel certain deeds and quiet title to a part of his surplus allotment. Judgment for defendants, and plaintiff brings error.

Error from District Court, Logan County; Hal Johnson, Assigned Judge. Action by Angus McLeod and others against ~W. E. McKean and another to have a certain deed declared a mortgage, and for other relief. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Trial — Demurrer to Evidence — Consideration.</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>2. Usury — Banks and Banking — Usury in Guise of Agent’s Commission — Sufficiency of Evidence.</p> <p>The record examined, and held, that the trial court committed error in sustaining a demurrer to the evidence of the defendant upon its cross-petition.</p>

<p>Error from District Court, Creek 'County; Lueien B. Wright, Judge.</p> <p>Judgment in favor of F. W. Jacobs against George Petropole. From order overruling Petropole’s motion to stay execution, he brings error.</p>

Error from District Court, Love County;. W. E. Freeman, Judge. • Action by the J. R. Watkins Medical Company against S. L. Brooks and others for purchase price of merchandise. Judgment for plaintiff for less than sued for, and both parties bring error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Discretion of Trial Court — Su.stitution of Parties.</p> <p>Section 4700, Rev. Laws 1910, vests in the court to which the application for substitution of parties defendant is made, a legal discretion to grant or refuse the application, and where it does not appear that the plaintiffs in error were prejudiced by the refusal of the application, and no abuse of discretion by the trial court is shown, error cannot be predicated on such refusal.</p> <p>2. Appeal and Error — Record — Rejected Evidence.</p> <p>Where a party complkins of the rejection of evidence, he must show in the record the substance of what the evidence would have been, in order that this court may determine whether material errors were committed.</p> <p>3. Replevin — Judgment—Value of Property —Evidence.</p> <p>In an action in replevin, it is error to render judgment in favor of the plaintiffs for a sum certain as the value of the property in controversy, in case delivery thereof cannot be had, where there is no evidence adduced at the trial tending to show value.</p>

Error from District Court, Grady County; Will Linn, Judge. Action by Robert Hughes against Lawrence Martin for loss of bank deposits resulting from failure of bank. Judgment for defendant on demurrer to petition, and plaintiff brings error.

Error from District Court. Tulsa County; Geo. W. Clark, Assigned Judge. Action by Nola Childers Tracy, a minor, by her husband and next friend, Forrest R. Tracy, and Nola Childers Tracy, against Woodson E. Norvell to cancel compromise agreement and for other relief. Judgment. for defendant, and plaintiffs bring' error.

<p>Error from District Court, Grady County; Will Linn, Judge.</p> <p>Action by Gouldy Sealey, a minor, against A. R. Smith and others, to quiet title. Judgment rendered in favor of the defendants.</p> <p>Plaintiff brings error.</p>

<p>Error from District Court, Canadian County; Edward Dewes Oldfield, Judge.</p> <p>Action to condemn land by Oklahoma City against Lee Stinchcomb and another. From the judgment defendants bring error.</p>

<p>(Syllabus.)</p> <p>1. Taxation — Income Taxes — Validity of Statute.</p> <p>The validity of the “income tax,” provided for in chapter 16.4, Sess. Laws 1915, as distinguished from a general ad valorem tax, is sustained.</p> <p>2. Same — Liability of Lessee’s Share of Oil Production on Restricted Land.</p> <p>The validity of the “income tax,” provided for in chapter 164, Sess. Laws 1915, as applied to the lessee’s private share of oil and gas produced under departmental lease on restricted lands, is sustained on authority of In re -Protest of Skelton Lead & Zinc Co., No. 11194, this day decided.</p> <p>Kane and Millei*, JJ., dissenting.</p>

Error from District Court, Nowata County ; W. J. Campbell, Judge. Motion of Sallie Humphreys to vacatq a judgment on the ground tint the same was void, which judgment had been rendered against her more than four years prior to the filing of the action in which Sallie Humphreys was pl-intiff, against George R. Smith et al., defendants. Motion denied. Plaintiff appeals.

<p>Error from District Court, Logan County; John P. Hickam, Judge.</p> <p>Action between R. J. Smith and N. E. Wallace. From the judgment, the latter brings error.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to File Brief— ‘ Reversal.</p> <p>.' Where the defendant in error fails to file a '/brief and has not offered any excuse for such ‘failure, and the plaintiff in error has filed a . complete record in the Supreme Court and has served and filed a brief in compliance with the. rules of the court, the Supreme Court is not required to search such record to find some theory upon which the judgment below may be sustained; and, where the brief filed by the plaintiff in error appears to reasonably sustain his assignments of error, the court may reverse the case in accordance with the prayer of the petition of the plaintiff in error.</p>

Error from District Court, Tulsa County; Conn Linn, Judge. Action by Marcus W. Shriver against N. D. Wells and another to recover a one-third interest in certain oil and gas leases and for an accounting of the profits. Judgment for the plaintiff. Defendant Wells appeals.

Prom action of State Board of Equalization denying the protest of the Skelton Lead & Zinc Company in the matter of its gross production fax for flip year 1919, the company appeals.

Error from District Court, Seminole Coynty; J. W. Bolen, Judge. Action by Willie Harrison, a citizen of the Seminole Nation, agaist Frank H. Reed and others, to recover certain lands allotted to him as such citizen of the Semmole Nation. Judgment for defendants, and plaintiff brings error.

Error from District Court, Marshall County ; Jesse M. Hatchett, Judge. Action by Ottoe Wilson, a minor by his next friend and father. C. G. Wilson, against James W. Lusk, W. C. Nixon, and W. B. B'ddle. receivers of tu-' su-. Louis it- B~n Francisco Railway Company, a corporation, to recover for personal injuries sustained by the plaintiff on accoupt of the negligence of the defendants.

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Thomas J. Kelley and wife against Fred G. Dennis, State Bank Commissioner, 8ud others to cancel conveyances and quiet *itle. Judgment for plaintiffs, and defendant named brings error.

Error from District Court, Pittsburg County; R. W. Higgins, Judge. Action by Maggie Silva against John Silva for divorce, a.’-mony, attorney’s fee, and division of property. Judgment for plaintiff for less than sued for, and she brings error.

<p>Error from District Court, Comanche County; Cham Jones, Judge.</p> <p>; Action by C. S. Ulrich against the Lawton National Bank of Lawton, Okla., and R. P. Taylor to recover on unpaid check. Judgment for plaintiff, and the bank brings error.</p>

<p>(Syllabus.)</p> <p>1. Fraudulent Conveyances — Mortgage of " Stock of Goods — Built Sales Law.</p> <p>The taking of a chattel mortgage on the stock of merchandise of a merchant by a creditor may be done in a manner and attended with such acts and under such circumstances as to constitute, in fact, a sale and be in fraud of the rights of other creditors, and hence in contravention of the provisions of sections 2903, 2904, and 2905, Rev. Laws 1910, known as the Bulk Sales Law.</p> <p>2. Trial — Questions for Court or Jury — Interpretation of Writings — latent.</p> <p>Where a transaction is evidenced entirely in writing, or more than one writing, and a mere question of their interpretation arises, this is a question solely within the province of the court to decide; but if the execution is attended with such circumstances that the real purpose of the transaction, as evidenced by such writing, comes in question, and the proof as to the actual intention rests in parol as well as in the writing, it then becomes the province of the jury to determine that real intention, from all the facts and circumstances that are held relevant, competent, and material in proof of the main fact, the admission of which proof is to be controlled by the court in the exercise of a wise and reasonable discretion.</p> <p>3. Trial — Demurrer to Evidence — Instructing Verdict.</p> <p>When the facts are (undisputed and are capable of more than one inference and being such inferences as reasonable men may draw from said facts, and some of which may be favorable to one party, and some favorable to the other party to the suit, then, in that event, a court is not justified in sustaining a demurrer to, the evidence or in giving an instructed verdict, and it is reversible error to do so.</p>

<p>(Syllabus.)</p> <p>1. Deeds — Definition — Delivery — Intention.</p> <p>A deed is defined to be a written instrument containing a contract, or agree-ment, which has been delivered by the party to be bound! and accepted by the grantee, and in order to constitute a delivery, it must appear that the grantor intended it to pass title at the time.</p> <p>2. Same — Deed by Full-Blood Indian.</p> <p>Mahale, a full-blood Creek Indian, executed a w.ill devising her allotment to Fiekey, also a full-blood Creek Indian, who was in no way related to the testatrix, either as heir or otherwise. Fiekey executed a deed to the land so devised to McKinney; the deed was left with the grantee. At the execution of the deed, a date was set to appear before the proper county judge and have the deed approved, the consideration to be paid in the presence of the county judge upon approval of 'the deed. On the date so set, Fiskey appeared at the office of the county judge; the grantee failed to appear. The deed was placed of record by the grantee. No part of the consideration was ever paid or tendered. Held, the possession of the deed by the grantee, under the circumstances stated, was not such a delivery as is contemplated by law.</p>

<p>(Syllabus.)</p> <p>1. Evidence — Admissions by Pleadings — Effect.</p> <p>Where a party to an action makes solemn admissions against his interest in a pleading, they should be treated as admitted facts, and he will' not be heard to question the correctness thereof at any stage of the case in the trial court or on appeal, when properly preserved in a transcript or case-made so long as they remain a part of the record. If the statements or admissions were made under an honest mistake or misapprehension of what the facts really were, and he desires to be relieved from the effects thereof, he should apply to the trial court for leave to withdraw such- admission or pleadings.</p> <p>2. Principal and Agent — Unauthorized Acts —Ratification—Acceptance of Benefits.</p> <p>Where one voluntarily and with knowledge of the facts accepts the benefits of an act pm-porting to have been done on Ms account, by one claiming to act as bis agent, though without authority, he thereby ratifies such act and makes it his own as fully as though he had authorized it in the beginning, and he may not ordinarily take the benefits and reject the burdens, but must either accept them or reject them as a whole.</p> <p>3. Same — Payment — Suflicieney — Bank as Agent.</p> <p>Where one who is bound to pay money to another, instead of paying said money direct, or in accordance with the contract of the parties, pays the money to a bank for the other, he thereby makes the bank his own agent and makes such payment at his own risk, and in order to avoid liability it is necessary for him to show that the other received the money from the bank.</p> <p>4. Appeal and Error — Review—Equity Case.</p> <p>In a case which is cognizable only in a court of chancery, it is the duty of the court to consider the whole record, to weigh the evidence, and when the judgment of the trial court is clearly against the weight of the evidence, render or cause to be rendered such judsment as the trial court should have rendered.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by the Midland .Savings & Loan Company against the Gast Heights Development Company to foreclose mortgage. Judgment for defendant, and plaintiff brings error.

<p>(•Syllabus.)</p> <p>1. Corporation Commission — Powers.</p> <p>The Corporation Commission was created and endowed with legislative, executive, administrative, and judicial powers.</p> <p>2. Same — Nature of Rate-Fixing Power.</p> <p>The power to fix rates is legislative, whether exercised by the Legislature directly, or by an administrative body under delegated authority.</p> <p>3. Same — Scope of Rate-Fixing.</p> <p>The legislative power of the Corporation Commission over rates is not confined to prescribing permanent rates, but may be exercised as the exigencies of the times and changing conditions demand, and the Corporation Commission has authority to prescribe temporary rates when the necessity therefor is apparent.</p> <p>4. Same — Methods.</p> <p>The rate-making power of the Corporation Commission is not limited to any particular theory or method; and the commission may, if it has the necessary facts before it, prescribe a temporary schedule of rates to be effective until the commission has had time to make an investigation and a valuation of the property of the public utility.</p> <p>5. Same — Complaints—Notice.</p> <p>The power of the Corporation Commission to prescribe rates is not limited to complaints filed, but is inherent in the authority delegated to the commission, and the only question of notice that can be raised by a public utility is that prescribed for notice and hearing for the utility itself.</p> <p>6. Same — Trial — Hearsay Evidence — Corporate Records.</p> <p>The rule against the admissibility of hearsay evidence does not apply to exhibits made by the complainant from the books of a public service corporation, where such corporation is confronted with the exhibits and given an opportunity for cross-examination and rebuttal.</p> <p>7. Same — Procedure—Technical Rules.</p> <p>The inquiry of a board of the character of the Corporation Commission should not be too narrowly constrained by technical rales as to the admissibility of evidence. Its function is largely one of investigation, and it should not be hampered in making inquiry pertaining to rates of a public utility by those narrow rules which prevail in trials at common law.</p> <p>8. Same — Scope of Review of Orders.</p> <p>The fixing of rates is not a judicial function, and the right to review the conclusions of a board with legislative power such as that exercised by the Corporation Commission, is limited in determining whether the board acted within the scope of its authority, or the order is without foundation in evidence, or a constitutional right of the public utility has been infringed upon by fixing rates which are confiscatory or insufficient to pay the cost of the service and return to the utility a reasonable profit on the investment.</p> <p>9. Same — Presumptions as to Findings.</p> <p>Findings of fact made by the Corporation Commission are by section 22, art. 9, Constitution, prima facie just, reasonable, and correct.</p> <p>10. Same — Appeal—Record—Requisites.</p> <p>The requirement of section 22, art. 9, Constitution, that the Corporation Commission certify on appeal all the facts upon which the order appealed from was based, and which may be essential for the proper decision on the appeal, as well as a written statement of the reasons upon which the order appealed from was based, is not fulfilled by certifying the evidence and an order which states merely the conclusions reached by the commission.</p> <p>11. Same — Remand for Findings — Public Utilities — Rates.</p> <p>When the Corporation Commission, upon making an order prescribing the rates which a public utility may charge for electric services, fails to make a finding of facts, and to certify the same to the Supreme Court on appeal from its order, the Supreme Court may, under said section of the Constitution, remand the case to the commission with directions to find the facts upon which the commission based its order, and to certify the same to the court, before the appeal is finally decided.</p> <p>12. Same.</p> <p>The Corporation Commission, having failed to certify the facts upon which the order appealed from herein is based and which are essential for the proper décision of the appeal, it therefore becomes the duty of the court to l’emand the case to the Corporation Commission for such finding of facts.</p>

Error from District Court, Muskogee County; Chas. G. Watts, Judge. Action for determination of heirship In re Estate of Robert Pigeon, deceased. From judgment of district court affirming order of county court decreeing heirship and making distribution in favor of Idella M. Stevens and certain other heirs, Josie Pigeon, ad-ministratrix, brings error.

Error from District Court, Ohoetaw County; Jesse M. Hatchett, Judge. Action by Mrs. J. 8. Hastings against the Hugo National Bank to recover on bank deposit slip. Judgment for defendant, and plaintiff brings error.

Error from District Court, Pontotoc County ; J. W. Bolen, Judge. Action by W. B. Molone against the Atchi-son, Topeka & Santa Fe Railway Company, for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Payment — Application—Right of Debtor or Surety.</p> <p>The general rule is that a creditor may apply a payment, made by the debtor without any specific appropriation where there are two or more debts, to whlcnever debt be pleases, and a surety cannot control the application of the payment by the creditor, and neither the debtor nor the creditor need apply the payment in a manner most beneficial to the surety.</p> <p>2. Officers — Clerks of Courts — Liability on Bond — Funds.</p> <p>Sureties on an official bond are only answerable for the acts of their principal, while engaged in the performance of some duty imposed by law, or for an omission to perform such duty; and therefore the bond of a clerk of the county court is liable for all moneys coming into bis hands, as such clerk, under the law and by virtue of his office and unaccounted for by Mm.</p> <p>3. Same — Fees and Cost Deposits.</p> <p>Where deposits are made with the clerk of the county court to secure costs, or where sums come into the hands of such clerk by virtue of his office, his bond is liable upon his failure to pay such sums over to such party as may be entitled to receive them.</p> <p>4. Same — Funds Received Not by Virtue of Office.</p> <p>Amounts received by the elerk of the county court in administration and guardianship matters, under orders from me county court, of which he was the clerk, are not received by virtue of his office, and the obligation of his bond does not cover the same as sums properly coming into his hands by virtue of his office.</p>

Error from District Court, Osage County; R. B. Boone, Judge. In the matter of the estate of John Hilde- * brand, deceased. Action by Agnes Taylor and' other minor heirs to contest will after probate; opposed by Mary Hildebrand White and another. From an order dismissing their petition, Agnes Taylor and others bring error.

Error from County Court, Major County; Harry Randall, Judge. Action by D. R. Thomas and J. Nile God-frey, partners, composing the firm of Thomas-Godfrey Land & Loan Company, against Joe Campbell to recover real estate broker’s commission. Judgment for plaintiffs, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Failure to File Briefs —Dismissal.</p> <p>Where no briefs are filed, as required by rule 7 of this court (47 Oída, vi), the appeal will be dismissed for want or prosecution.</p> <p>2. Master and Servant — Workmen’s Compensation Law — Review of Questions of Fact. .</p> <p>Under the provisions of section 10, ch. 14, Workmen’s Compensation Act (Laws 1919), the decision of the State, Industrial Commission is final as to all questions of fact, and this court is not authorized to weigh the evidence upon which any finding of fact is based.</p>

<p>(Syllabus.)</p> <p>1. Replevin — Bight to Exemplary Damages.</p> <p>Exemplary damages may be recovered by the defendant in an action in replevin where the plaintiff taking the property has been guilty of oppression, fraud, or malice.</p> <p>2. Justices of the Peace — Replevin—Coun-terclaim — Jurisdiction.</p> <p>When a justice of the peace has once acquired jurisdiction in an action in replevin, the defendant cannot divest the court of its jurisdiction by the filing of a counterclaim in excess of -the court’s jurisdiction.</p> <p>3. Replevin — Damages to Defendant — Statute.</p> <p>Section 5407, Rev. Laws 1910, provides: “In all cases when the property has been delivered to the plaintiff, when the jury shall find for the defendant, they shall also find whether the defendant had the right of property or the right of possession only, at the commencement of the suit, and, if they find either in his favor, they shall also find the value of the property or the value of the possession, and such damages for withholding said property as may be just and proper.”</p>

Error from District Court, Osage County; R. B. Boone, Judge. Action by Bert Sbellenberger against the Grainola State Bank to recover penalty for usury. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>Reference — Right to Refer — Case Followed.</p> <p>Affirmed upon the authority of Grainola State Bank v. Shellenberger (ante, p. 204), just handed down.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Case-Made—Notice of Settlement — Dismissal.</p> <p>Where it does not affirmatively appear that notice of time and place of signing and settling 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 will be dismissed on motion of defendant in error.</p> <p>2. Appeal and Error — Time for Proceedings —Effect of Motion for New Trial.</p> <p>Where a motion for a new trial is unnecessary to present to this court for review an order or judgment' appealed from, such motion and decision thereon by the trial court ar'e ineffectual to extena the time within which to effect an appeal.</p>

Error from District Court, Garvin County; F. B. Swank, Judge. Action by Delilah Wall and another against R. S. Randerson and others to cancel deed. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Carter County; W. E. Freeman, Judge. Action by D. H. Morgan against C. L. Byrne and another on building bond. Judgment for plaintiff, and defendants bring error.

Error from District Court, Creek County; Ernest B. Hughes, Judge. Action by A. R. Morgan against M. S. Karcher and others. Judgment for plaintiff vacated on petition of Karcher and another, and plaintiff brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — -Case-Made—Validity— Extension of Time.</p> <p>An order extending the time for making and serving a case-made, made after the expiration of the time fixed by former order of the court or trial judge, is void.</p> <p>(a) A case-made made and served within the time fixed by such void order is a nullity, and cannot be considered as such by this court. Tanner v. Crawford, 80 Okla. 183, 195 Pae. 138.</p>

<p>(Syllabus.)</p> <p>1. Evidence — Parol Evidence — Written Contract — Fraud in Procurement.</p> <p>It is competent to show by parol evidence that a contract was procured by fraud and misrepresentation, where such fraud and misrepresentation is pleaded and relied upon as a defense.</p> <p>2. Sales — Action for Price — Defense of Fraud — Sufficiency of Evidence.</p> <p>The evidence examined, held that the evidence is sufficient to support the verdict of the jury, and the verdict will not be disturbed by this court.</p>

Error from District Court, Tillman County; Frank Mathews, Judge. Action by J. D. Byers against E. L. Bris-ley and W. E. Brisley for balance due on land note. Judgment for defendants, on counterclaim, and plaintiff brings error.

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by William A. Porterfield against J. W. Billings and another for conversion. Judgment for plaintiff, and defendants bring error.

Error from District Court, Pontotoc County; Geo. C. Crump, Assigned Judge. Petition by Thomas W. M-orris for modification of decree awarding custody of minor child to Rebecca Morris. Prom decree against plaintiff, he brings error.

Appeal by J. H. Henley, claimant, from an award of compensation made by the State Industrial Commission ordering claimant to submit to an operation for hernia or forfeit his right to compensation for disabilities caused by injuries received in the course of his employment.

<p>(Syllabus.)</p> <p>1. Master and Servant — Action for Wrongful Death of Coal Miner — Assumption of Risks — Instructions — Statutory Safeguards.</p> <p>In an action for damages for the wrongful death of a coal miner alleged to have occurred as the direct and proximate result of the failure of the employer, to furnish props, cap pieces, and of the mine foreman to abate all dangerous conditions reported to him and to inspect said mine as provided in sections 3984 and 39SS of Revised Laws of 1910, the defendant cannot take advantage of the defense- of assumption of risk, and it is the duty of the trial court, where there is evidence which reasonably tends to support the plaintiff’s theory that the employer has failed to perform his statutory duty in safeguarding a coal mine as required by the statute, to instruct the jury as to the duty of the employer as prescribed by the statute, and a failure to do so constitutes reversible error.</p> <p>2. Same — Contributory Negligence as Defense.</p> <p>In an action for damages by the administrator of the estate of a deceased person for wrongful death wherein it is alleged that the death of the deceased resulted from a violation of a statutory duty imposed upon an employer, the contributory negligence of the person injured may be urged as a defense thereto, unless the statute prescribing the duty of the employer expressly excludes such defense.</p>

Error from District Court,. Caddo County; Will Linn, Judge. Action by the First National r.ank of Ana-darko against C. P. Smith and others to cancel oil and gas lease and quiet title. Judgment for plaintiff, and defendants bring error.

Error from District Court, Okfuskee County; J. W. Bolen, Assigned Judge. /, Action by Duard C. Douglas, a minor, by E. Huser, his guardian, against the Southwestern Surety Insurance Company and others on guardianship bonds. Judgment for plaintiff and defendant Southwestern Surety Insurance Company appeals.

Error from District Court, Muskogee County; Benjamin B. Wheeler, Judge. In the matter of the estate of Isabelle Lewis, a minor. Exceptions by Thomas J. Wiley, guardian, to final report of former guardian, John M. Hobbs. From judgment of district court on appeal from county court, Hobbs and his surety bring error.

Error from District Court, Tillman County; Frank Mathews, Judge. Action by Finley P. Mounts, receiver of M. Rumely Company, against J. B. Matthews and E. F. Neal, on promissory notes. Judgment for piaintiff, and defendant E. F. Neal brings error.

<p>(Syllabus.)</p> <p>1. Contracts —r Construction — Different Writings.</p> <p>When two or more writings are executed at the same time and between the same parties, and concern the same subject-matter, or when the contracts are not executed at the same time, but refer to the same subject-matter, and on their face show that they are each executed as a means of carrying out the intention of the other, they should be construed together.</p> <p>2. Same — Construction as a Whole — Intent.</p> <p>In construing contracts it is the duty of this court to ascertain the intention of the parties from the language contained therein, and give to said contracts the effect contemplated by the parties at the time of the execution of such contract, and the intention of the parties must be deduced from the entire agreement, not from any part or parts of it standing alone, and, if possible, every part should be made effectual.</p> <p>3.Money Received — Right of Action' — Failure of Consideration.</p> <p>An action for money had and received will lie to recover money paid by plaintiff to defendant for a consideration which has wholly failed, unless the failure of the consideration is due to some fault on the part of the plaintiff himself.</p>

<p>(Syllabus.)'</p> <p>1. Eminent Domain — Constitutional Provision — Time of Taking — Compensation.</p> <p>The taking of private property for public use is the exercise of sovereign power, and is controlled, in this state, by the provisions of section 24, art. 2, of the Bill of Rights of our 'Constitution, and these provisions must be construed strictly in favor of the owner and against the condemning party, and until the compensation has been paid to the owner, his property cannot be disturbed, nor his proprietary rights divested; hence, there can be no legal taking under the Constitution until the compensation, as fixed by the commissioners, is either paid to the owner of the property, or into court for him.</p> <p>& Same — Condemnation Proceeding — Trial —Instruction.</p> <p>In a condemnation proceeding to take private property for public use, in which commissioners were appointed and on March 9, 1917, the said commissioners filed their report as such commissioners fixing the amount of the damage due to the owner for such taking, and afterwards, under written stipulation, the amount of the award is paid to the owner by the condemning party and in pursuance of said stipulation, and on April 25, 1917, said award was paid to the owner by the condemning party, the trial court gave to the jury, trying said cause on appeal from said award, the following instruction :</p> <p>“You are instructed that under the evidence in this case the appropriation of the land-of the defendants took place on the 9th day of March, 1917, and that in fixing the damages suffered by the defendants, you are to fix them as of that date.”</p> <p>The said instruction being excepted to by the owner of the land, the same is brought to this court on appeal and is assigned and argued as error in this court.</p> <p>Held, 'ijlaat the giving of said instruction wherein the time of the appropriation of ■'the owner’s' property and fixing the time as • of which the value of the property is to be 'estimated to be as of the date of filing of the report of the commissioners, and on to wit, March 9, 1917, instead of fixing the time of the appropriation of the property and as of which 'the value of the property taken is to be estimated, to be the date that the money' was paid to the ■ owner, and on to wit, April 25, 1917, constitutes a substantial violation of a constitutional right of the owner of the property condemned, and is therefore reversible error. .(Section 6005, Rev. Laws 1910.)</p>

<p>(Syllabus.)</p> <p>1. Evidence — Presumptions — Validity of Warrants.</p> <p>It is a presumption of law that all public officers perform their duty, and in the absence of clear proof to the contrary, this' court will refuse to hold that they did not do so in issuing warrants for claims against municipalities.</p> <p>2. Municipal Corporations — Validity of Warrants— Presumption and Burden of Proof.</p> <p>A municipal warrant is prima facie evidence of the validity' of the claim for which it was issued, and if in an action instituted by the owner and holder thereof the municipality asserts as a defense a violation of some constitutional or statutory provision, the burden of proof is upon the municipality to • clearly establish by competent evidence that at the time the debt was created, for which said warrants were issued, the. governing body of the municipality violated the provision of the Constitution or section of the statute relied upon.</p> <p>3. Appeal and Error — Review .— Findings— Conclusivness.</p> <p>Where a case is tried to the court without the aid of a jury, the court’s finding of facts will be given the same weight as the verdict of a jury, and will not 'be set aside if there is any evidence reasonably tending to support it.</p> <p>4. Townsliips — Validity of Warrants — Judgment — Affirmance.</p> <p>Relcord examined, and held, that the judgment of the trial court should be affirmed.</p>

Error from District Court, Okmulgee County; Mark L. Bozartb, Judge. > In the matter of the assessment of the Central National Bank of Okmulgee. On appeal from the Board of Equalization of Ok-mulgee County there was judgment for the bank, and the board and the county assessor bring error.

<p>Error from Bounty Court, Pontotoc County; Orel Busby, Judge.</p> <p>Action by H. E. Morris against the Dy-mond Drilling Company. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Okmulgee County; Chas. G. Watts, Assigned Judge.</p>

<p>(Syllabus.)</p> <p>1. Insane Persons — Appointment of Guardian — Necessity for Notice — Statute.</p> <p>Section 6538 of the Revised Laws of 1910 provides: “When it is represented to the county court upon verified petition of any relative or friend, that any person is insane, or from any cause mentally incompetent to manage his property, the judge miis-t cause notice to be given to the supposed insane or incompetent person, of the time -and place of hearing the case, not less than five days before' the time so appointed, and such person, if able to attend, must be produced before him -on the hearing.” Held: In a proceeding for the -appointment of a guardian of a person upon the ground that such person is mentally incompetent to manage his property, that the provisions of said statute are mandatory, and unless the prescribed notice is given the court is without jurisdiction to hear and determine such proceeding.</p> <p>2. Same — Validity of Order of Appointment —Collateral Attack.</p> <p>An order of a county court appointing a guardian for an alleged incompetent having been made on the same day that the petition was filed, without notice and without the alleged incompetent having been produced -before the court,. br it being shown that said alleged incompetent -was unable to attend, and. without, a full hearing and examination upon the petition, such order is void and subject to collateral attack.</p> <p>3. Prohibition — Right to WMt — Arbitrary Action of Court in Appointment of Guardian for Incompetent.</p> <p>The action of -a county court, sitting in probate, in appointing a guardian for an alleged incompetent without notice -and without the alleged incompetent being present and without a full and fair hearing upon the , petition, and setting an appeal bond in the sum of $7,500 upon notice by the alleged incompetent Of her intention to appeal from said order appointing a guardian, constitutes an unwarranted and arbitrary-use of judicial power and prohibition is the proper remedy to prevent such unauthorized application of such judicial force.</p>

Error from District Court, Caddo County; Will Linn, Judge. Action by J. D. Smith and another intervening in suit begun by I. M. Duncan and another as plaintiffs against the Keechi Oil & Gas Company and others to cancel oil lease. Judgment for interveners, and defendants bring error.

Error from District Oourt, Seminole County; C. Cuy Cutlip, Special Judge. Action in ejectment by Margaret R. Benn against Louisa Daily and others; J. D. Ly-dick and others intervening. Judgment for plaintiff and J. D. Lydick and others, and defendant Daily and others bring error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by J. S. Lawhorn against the Midland Valley Railroad Company to recover damages for destruction of automobile. Judgment for plaintiff, and defendant appeals.

<p>('Syllabus.)</p> <p>1. Action — ¡Separate Causes of Action — Suit on Series of Notes.</p> <p>In an action on a series of promissory notes each note constitutes a separate cause of action.</p> <p>2. Same — Splitting Cause of Action — Justices of the Peace.</p> <p>Though several notes were given in consideration of one transaction and the notes all mature before an action is brought to recover on any of them, the holder of the notes may bring his action in the justice -court on one or more of the notes, so that the aggregate amount does not exceed tlie jurisdiction 61 the justice of the peace, and the fact that alf of the notes a-re due does not constitute a splitting of the cause of action.</p> <p>3. Justices of the Peace — Appeal—Trial De Novo — Jurisdiction.</p> <p>Where two separate actions are brought by the same plaintiff against the same defendant in the justice court and each action is appealed to the district court, the actions are tried de novo and the district court does not have any greater or different jurisdiction than is conferred on the justice court.</p> <p>4. Same — Consolidation of Actions on Appeal — Amount of Judgment — Validity.</p> <p>Where the district court consolidates such actions so appealed and renders a judgment for an amount in excess of the jurisdiction of the justice court, held, that the district court did not have jurisdiction to render such judgment, and the same is void.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by W. C. McAlister, against J. B. Klein and William Klein, individually and as partners under the firm name of J. B. Klein Iron & Foundry Company, to recover damages for a breach of contract. Judgment for the defendants, -and plaintiff appeals.

Error from District Court, Grady County; Will linn, Judge. ' Action by Albert Johnston, a Choctaw Indian, against John J. Burnett, Edward C. Davis, and D. A. Davis, to recover 60 acres of land, being a part‘of the surplus allotment of the plaintiff. Judgment for defendants, and plaintiff appeals.

<p>(■Syllabus.)</p> <p>Appeal and Error — Review—Questions of Fact — Verdict.</p> <p>In a civil action, triable to the Jury, where there is competent evidence reasonably tending to support the verdict of the Jury, and no prejudicial errors of law are shown in the instructions of the court, or its ruling on law questions presented during the trial, the verdict and finding of the Jury will not' be disturbed on appeal.</p>

<p>Appeal from the Corporation Commission.</p> <p>Proceeding by the Oklahoma Portland Cement Company against St. Louis-San Francisco Railway Company. From the order rendered, defendant appeals.</p>