Volume 82 — Oklahoma Reports

Error from District Court, LeElore County; W. H, Brown, Judge. Action by M. T. Craig, administrator of the estate of Silas L. Craig, deceased, to recover damages for the wrongful death of Silas L. Craig, against the Kansas City South- ' em Railway Company, Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Justices of the Peace — Perfection of . Appeal — Undertaking.</p> <p>An appeal from the judgment of a justice of the peace shall be complete upon the filing and approval of the undertaking.</p> <p>2. Same — Stay of Proceedings in Justice Court by Appeal.</p> <p>AH further proceedings before the justice of the peace in the case shall cease and be stayed on the filing of the undertaking with said justice and its approval.</p> <p>3. Same — Dismissal of Appeal — Remand— Effect.</p> <p>When such appeal is dismissed by the appellate court, the cause shall be remanded to the justice of the peace to be thereafter proceeded with as if no appeal had been taken.</p> <p>4. Same — Issuance of Execution by Justice Court Before Remand.</p> <p>A justice of the peace does not have jurisdiction to issue an execution on a judgment rendered by him after the appeal bond has been filed and approved and before such cause has been remanded back to the justice of the peace by the appellate court.</p> <p>5. Same — Void Execution — Relief by Injunction.</p> <p>Such execution so issued when the justice of the peace does not have jurisdiction to issue the same is void, and injunction is the proper remedy to enjoin a levy under such void execution, or the issuing of any further executions, or an attempt to collect such judgment so appealed from.</p>

Error from District Court, Garfield County ; James B. Cullison, Judge. Action by Emma Hyde Stoner and others against George L. Hyde, individually, and George L. Hyde as administrator of the estate of Rolandis H. Hyde, deceased, to enjoin the administrator from procuring orders in the county court of Garfield county to sell certain lands belonging to the estate of Rolandis H. Hyde, deceased. Judgment denying the injunction and dismissing the action, and plaintiffs appeal.

<p>Error from District Court, Oklahoma, County; Edward Dewes Oldfield, Judge.</p> <p>Action by W. S. Freeman against the St. Louis-San Francisco Railway Company, to recover damages for loss of baggage. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Craig County; Preston S. Davis, Judge. Action by Lucy Alberty and Lee Ross against Charles Olentine and others, to cancel deeds to certain lands in Craig County, Oklahoma. Judgment for the plaintiffs, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Waters and Water Courses — Surface Waters — Right of Landowner to Obstruct or Divert.</p> <p>At common law surface water was regarded as a common enemy against which each proprietor might protect himself. He might send it back or pass it on to the next adjoining proprietor without liability.</p> <p>2. Same.</p> <p>The common law covering the diversion of surface water, as adopted and applied in this state, has been modified and restricted to this extent, namely, that each proprietor may divert the same, cast it back, or pass it along to the next proprietor, provided he can do so without injury to such adjoining proprietor. Under this rule of law no one is permitted to sacrifice his neighbor’s property in order to protect his own.</p> <p>3. Same — Action to Abate Private Nuisance — Judgment—Reversal.</p> <p>The judgment of the trial court is re- - versed, and cause remanded, with directions to the trial court to proceed in accordance with this opinion.</p>

Error from District Court, Creek County; Mark L. Bozarth, Judge. Action by Millie Petitt and others against the Double-O Oil Company and others to cancel oil. lease. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Comanche County; Cham Jones, Judge. Action by School District No. 196, Comanche County, against Ben McGee, as County Treasurer of Comanche County, in mandamus to compel the said County Treasurer to turn over to the plaintiff $858.29 in the hands of such treasurer; School District No. 67 being later made a party defendant. On a trial of the case to the court without a jury, the peremptory writ of mandamus was awarded. Defendants appeal.

<p>(Syllabus.)</p> <p>Appeal and Error — Review—Failure of Defendant in Error to File Brief.</p> <p>In an ‘action appealed to this court, where the plaintiff in error filed brief showing ■service upon the defendant in error and no brief is filed by the defendant in error and no reason given showing why the defendant in error has not filed brief, this court is not required to search the record to find some theory upon which the judgment below may be sustained; but, where the brief filed by the plaintiff in error reasonably sustains the assignments of error, the court may reverse the judgment in accordance with the prayer of the petition in error.</p>

Error from District Court, McClain County; F. B. Swank, Judge. Action by Mary F. Wolfe against Julius L. Burtschi and another for recovery of land; Ejanett Shields and J. C. Hybarger being made parties to action. Judgment for Wolfe and Shields, and BurtscM and another bring error.

<p>Error from District Court; Lincoln County; Chas. B. Wilson, Jr., Judge.</p> <p>Action for personal injuries by Irene Teel, a minor, by her stepfather and next friend, H. W. Spraker, against the St. Louis & San Francisco Railway Company. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Mayes County; Preston S. Davis, Judge. Action by George Moran against James S. Wilson for damages for failure to accept seed under sale contract. Judgment for plaintiff, and defendant brings error.

Error from District Court, Hughes County; E. F. Lester, Assigned Judge. Action by Roy Donahoo and four others, by their guardian .and next friend, M. C. Burrell, to recover damages for the wrongful death of their father, J. A. Donahoo, against the St. Louis-San Francisco Railway Company, a corporation. Verdict and judgment for plaintiffs, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Review—Necessity for Motion for New Trial.</p> <p>A party cannot have errors of law occurring at the trial reviewed by this court, unless he has.made a legal and sufficient motion for a new trial, presenting the matter complained of to the trial court.</p> <p>2. Appeal and Error — Persons Entitled to Appeal.</p> <p>It is necessary, in order to maintain an appeal or writ of error, that appellant shall be injuriously affected or aggrieved by 'the judgment, order, or decree complained of; therefore, one cannot appeal from a decision, however erroneous, which does not affect his substantial rights.</p> <p>3. Equity — Powers—Scope of Relief.</p> <p>A court of equity, looking beyond the mere form of things to their substance, has power to decree such relief to the parties as appears just and right and as best calculated to protect their rights as justified under the pleadings and evidence.</p> <p>4. Same — Multiplicity of Suits.</p> <p>The spirit of the Code of Procedure requires that, in so far as possible, all controversies and equities concerning a particular subject-matter shall be determined in one proceeding.</p>

Original proceeding by the State, on the relation of H. E. Ketehum, for a writ of prohibition to prevent the District Court of Tulsa County and the judge thereof from further proceeding in an action wherein C. L. Kimble is plaintiff and the Red Diamond Oil Company, a common-law trust, operating under a declaration of trust, Albert P. McBride, Jesse P. McBride, I. E. McBride, J. S. Hale, and Gustaf A. Anderson, trustees, are defendants, and W. L. Larkin is receiver, and…

<p>(Syllabus.)</p> <p>1. Continuance — Application — Showing of Diligence.</p> <p>In an application for continuance it is not sufficient to allege that due diligence has been used, but the facts constituting due diligence must be set forth in order that the court, may determine whether due diligence has been used.</p> <p>2. Appeal and Error — Judgment—Sufficiency of Evidence.</p> <p>Where a case is tried to the court and the evidence reasonably tends to support the judgment, such judgment will not be disturbed on appeal.</p>

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>. Action by C. Y. Semple against the Garrison Coal Company for breach of contract for sale of wheat. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Nowata County ; Conn Linn, Judge. Actions by L. A. Keys against the Texas Company and against the 'Prairie Oil & Gas Company to recover royalties. Various persons made parties, among them Frank C. Elliott, original allottee of the land, who, through guardian, filed cross-action claiming the royalties and asking cancellation of various conveyances affecting the land. Judgment for Elliott and David Etchen, and : others bring error.

Error from Superior Court, Okfuskee County; John L. Norman, Judge. Action by Sam Callahan against L. C. Taylor and Thomas Bass for possession of land. Judgment for plaintiff, and defendants bring error.

Error from District Court, Muskogee County; R. P. deGraffenreid, Judge. Action by G. W. Benge et al. against Jennie Reece et al. for possession of a three-sevenths interest in certain Indian land. Judgment for plaintiffs, and the defendant named brings error.

Error from District Court, Okmulgee County ; M. L. Bozarth, Judge. Action in replevin by George T. Guernsey and C. L. Kimble, receivers of the Independence Brick Company, against the Henryetta Spelter Company and others. Judgment for plaintiffs, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Taxation — Banks—Mode of Assessment.</p> <p>In assessing state or national banks, the assessment is not against the corporation upon its moneyed capital, surplus, and undivided profits, but the tax is levied against the shares of stock in the hands of stockholders, and the officers of the corporation act as the agent of the stockholders, both in listing the shares of stock for taxation and in paying the taxes levied against said shares of stock.</p> <p>2. Same — Valuation of Shares of Stock.</p> <p>The shares of stock in a state or national bank are to be assessed at their true value, which may, or may not, coincide with their book value.</p> <p>3. Same — Deduction of Amount Invested in Exempt Securities.</p> <p>In determining the value of shares of stock in a national or state bank for the purpose of taxation, no deduction is to be made on account of the capital of the corporation invested in securities which are exempt from taxation.</p>

Error from District Court, Wagoner County; Chas. G. Watts, Judge. Action toy A. White and W. W. Waters against the Tullahassee Realty Company and others for appointment of receiver of the corporation and other relief. Judgment for defendants, and plaintiffs bring error.

Error from District Court, Pottawatomie County; John L. Coffman, Assigned Judge. Quo warranto by the State, on the relation of Clyde Pitman, County Attorney, against N. G. McCarter and others attacking legality of consolidation of certain school districts. Judgment for plaintiff, and defendants bring error.

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. Action by C. F. Burkholder against the Okmulgee Coal Company and another to set aside sale of mining property and subject same to payment of judgment. Judgment for defendants, and plaintiff brings error.

Error from District Court, Washington County; Preston A. Shinn, Judge. Action by Minnie Armstrong against Prank Phillips and others to cancel deed and recover land. Judgment for defendants, and plaintiff brings error.

Error from District Court, Jefferson County ; Cham Jones, Judge. Action by the State, on the relation of Ben E. Saye, County Attorney, to forfeit One Hudson Super-Six Automobile; Lester Keeter intervening as claimant. Judgment for State forfeiting automobile, and claimant appeals.

<p>Appeal from ruling of the State Board of Equalization in the matter of the protest of A. E. Bendelari, agent, of gross production tax for 1919.</p>

<p>Appeal from the ruling of the State Board of Equalization in the matter of the protest of the U. S. ‘Smelting, Refining & Mining Company of its gross production tax for 1919.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Review — Necessity - for Motion for New Trial.</p> <p>Sections 5085 and 5036, Revised Laws of 1910, requiring motion for a new trial to be filed within three days after the verdict or decision is rendered and to be made in writing, are mandatory;'and, in the absence-of the showing that the party filing said motion has been unavoidably prevented from doing so within the time fixed by the statute, this court will not consider errors occurring at the trial. Clark et al. v. Caldwell, 74 Oklahoma, 181 Pae. 285-.</p> <p>2. Appeal and, Error — Dismissal—Time for Proceedings.</p> <p>Where plaintiff in error fails to file his appeal in this court within six months from the date of the rendition of the judgment or order appealed from, as required by chapter 18, page 35, Session Laws of 1910-11 (section 5255, Bunn’s Ann. Supp. to the Revised Laws of Oklahoma), the same will he dismissed for want of jurisdiction.</p> <p>3 Indians — Determination of Heirship of Deceased Aliotte.es by Secretary of the Interior Conclusive — Issuance of Patent to Heirs.</p> <p>By authority of the provisions of section 6 of the act of the Congress approved May 8, 1906, 34 Stat. L. 182, 183, and the act of June 25, 1910, 36 Stat. L. 855, which was made applicable to Oklahoma by the act of Congress of February 14, 1913, the Secretary of the Interior was vested with authority to ascertain the legal heirs of deceased Indians and cause to be issued to said heirs, in their name, a patent in fee simple for the lands being held in trust by the United States for the original allottees, and the action of the Secretary of the Interior in determining the legal heirs of such deceased Indians in accordance with the authority granted is conclusive and final.</p> <p>4. Deeds — Cancellation—Gross Inadequacy of Consideration — Presumption of Fraud.</p> <p>In an action to cancel a deed, where the evidence discloses that the same was obtained from a man nearly 100 years of age, who was a member of the Citizen Band of Pottawatomie Indians, uneducated, could speak but very little English, unable to write; that the interest in the lands conveyed was of the value of $2,000, for a consideration of $50 — held, in such a case the inadequacy of price is so gross as to shock the conscience of the court and establish a strong presumption of fraud, and that such conveyance should be canceled.</p>

Error from District Court, Jefferson County; Cham Jones, Judge. Action by the Aetna Bldg. & Loan Association against Virginia Elizabeth Hahn in person and as administratrix of the estate of C. A. Hahn, deceased, on note and mortgage. Judgment for defendant, and plaintiff brings error.

Error from District Court, Rogers County; C. W. Mason, Judge. Action between H. W. Blakeslee and Mary L. Young and another for cancellation of conveyance. From the judgment, the former brings error.

Error from Superior Court, Pottawatomie County; Leand'er G. Pitman, Judge. Action by R. J. Burke against the Chicago, Bock Island & Pacific Railway Company to recover damages sustained by reason of shipment of freight arriving in bad condition. Judgment for the plaintiff, and defendant appeals.

Error from District Court, Atoka County; J. H. Linebaugh, Judge. From an order of the district court refusing to set aside forfeiture of appearance bond of Charley White, his sureties, Henry Massey and others, bring error.

<p>Error from District Court, Murray County ; F. B. Swank, Judge.</p> <p>Action between the L. D. Powell Company and J. H. Casteel. From the judgment, the former brings error.</p>

<p>Error from District Court, Rogers County ; W. J. Campbell, Judge.</p> <p>Action by the City of Cluremore against the Southwestern Surety Insurance Company on indemnity bond. Judgment for plaintiff, and from action of court in granting new trial, plaintiff brings error.</p>

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by the Maple Leaf Oil Company against the Producers’ Supply Company for damages for injury to leasehold estate. Judgment in favor of plaintiff, and defendant brings error.

<p>Error from District Court, Creek County; Gaylord R. Wilcox, Judge.</p> <p>Action by J. A. Helton against the Continental Refining Company for damages for pollution of stream. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from Superior Court, Okmulgee County; R. E. Simpson, Judge.</p> <p>Action by W. A. Prince against the King Coal Company for damages. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Garfield County ; James B. Oullison, Judge. Action by B. E. Cottrell against W. E. Cogdall and others to recover a share in certain partnership assets. Judgment in favor of plaintiff, and defendant appeals.

<p>Appeal from the ruling of the State Board of Equalization in the matter of the protest of the St. Louis Smelting & Refining Company of its gross production tax for 1919.</p>

<p>Error from County Court, Creek County; J. Y. Frazier, Judge.</p> <p>Action for damages by A. B. Cox against the First National Bank of Mounds. Judgment for plaintiff and defendant appeals.</p>

<p>(Syllabus.)</p> <p>1.Limitation of Actions — Action by State to Enforce Liability of Shareholder in Failed Bank.</p> <p>The statute of limitations does not run against the state in an action to enforce the statutory liability of the shareholder in an insolvent bank taken over by the State Bank Commissioner, together with its assets, for me purpose of realizing upon the same in the interest of the depositors of said bank, and to reimburse the bank guaranty fund for the sum paid out to said depositors or creditors.</p> <p>2. Banks and Banking — Insolvency of State Bank — Liability of Stockholder.</p> <p>The presumption of liability on shares of stock in an insolvent bank, arising from the presence of a person’s name on the stock register, is rebutted ‘by evidence that a bona fide sale of the stock had been made, and that the vendor had performed every duty which the law imposed in order to secure the transfer on the registry of the bank.</p> <p>3. Same — Effect of Bona Fide Sale of Stock —Failure to Transfer on Bank’s Books.</p> <p>Upon a reasonable eonstructtion of the statute imposing liability upon shareholders for the debts of state banks, and for all the objects intended to be accomplished by the provisions imposing liability on shareholders for such debts, the responsibility of the defendant ceased upon the surrender of certain stock certificates to the cashier of the bank, properly indorsed to the party to whom the shareholder had sold his stock, with the request that such officer make a transfer of the stock, 'upon the books of the bank, and where such cashier promised to comply with such request, and afterwards informed the shareholder that said request had been complied with, and such shareholder, who was at the time a director of the bank, tendered his resignation as such to the officers of the bank, informed them that he had sold and transferred his stock and that he could no longer act as a director, and such shareholder’s connection with the bank thereafter ceased, although such transfer of stock was not in fact made upon the books of the bank.</p>

<p>Error from District Court, Oklahoma County; Geo. W. Clark, Judge.</p> <p>Action by Alferetta Denton against the First State Bank of Oklahoma City, for damages for malicious prosecution. Judgment for plaintiff and defendant brflngjs error.</p>

Error from District Court, Payne County; John P. Hickam, Judge. Action by A. A. Bay against the City of Cushing for damages resulting from pollution of stream. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to File Brief— Dismissal.</p> <p>Where the plaintiff in error has failed to file brief within the time required by the rules of this court, or within the time allowed by order of this court, his appeal will be dismissed.</p>

Error from County Court, Cotton County; J. C. Norman, Judge. Proceedings by the State to confiscate one Ford sedan automobile under provisions of the prohibition law; W. M. Boswell, owner of the car, intervening. Judgment for the State, and intervener brings error.

<p>Error from District Court, Woodward County; J. C. Robberts, Judge.</p> <p>Action by William T. Brant against Frank J. Brankle for money obtained by fraud. Judgment for defendant, and plaintiff brings error.</p>

<p>Appeal from Order of the 'State Corporation Commission.</p> <p>Upon complaint of West Bros, and others, order issued by Corporation Commission relating to operations of the Planters’ Cotton & Ginning Company and assessing a fine against the company, and the company appeals.</p>

Error from Superior Court, Creek County; Gaylord R. Wilcox, Judge. Action by Bul’ah and Thelma Green, by P. J. Green, their guardian, against the Gypsy Oil Company, a corporation, for damages for death of their father. Judgment for plaintiffs and defendant brings errror.

Error from District Court, Nowata County; W. J. Campbell, Judge. Appeal by Ada Harris and Henry Harris from an order confirming sale of real estate under execution upon judgment in favor of the Cherokee State Bank of Lenapah.

<p>Error from Superior Court, Creek County; Gaylord R. Wilcox, Judge.</p> <p>Action in mandamus by the State, on the relation of G. M. Parker, against W. E. Nicodemus, Mayor, and Katherine Williams Burke, City Clerk of the City of Drumright, to compel issuance of pool hall license. Peremptory writ of mandamus granted, from which the defendants appeal.</p>

Error from District Court, Woods County; W. C. Crow, Judge. Action by the J. I. Case Threshing Machine Company against W. H. Barney and others on notes and chattel mortgage. Judgment for defendants, and plaintiff brings error.

Error from District Court, Le Flore County; W. H. Brown, Judge. Action by A. G. Doshier against the Kansas City Southern Railway Company to recover damages for the killing of a cow. Judgment for the plaintiff, and defendant appels.-

<p>(Syllabus.)</p> <p>Master and Servant — Workmen's Compensation — Refusal of Industrial Commission to Modify Award — Reversal.</p> <p>For the reasons stated in the opinion, the action, of the commission complained of is reversed, and the cause remanded, with directions to modify the award as prayed for.</p>

Error from District Court, Texas County; W. C. Crow, Judge. Action by the Phoenix Insurance Company, of Hartford, Conn., agaiDst Emil Hall and others, partners under firm name of Tryone Lumber Company. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Tulsa County; Con Linn, Judge.</p> <p>Action by A. A. Small against Benjamin E. Bice and Thomas D. Lyons. Judgment for defendants, and plaintiff brings error.</p>

<p>Error from County Court, Rogers County; Edward Jordan, Judge.</p> <p>Proceedings to confiscate automobile; Otto Scwake, owner, intervening. Prom judgment of forfeiture, intervener brings error.</p>

<p>(Syllabus.)</p> <p>1. Corporation Commission —Rate-Making —Notice to Parties Affected — Necessity.</p> <p>Rate-making being a legislative power, notice to parties affected by an order of the Corporation Commission temporarily increasing gas rates upon application of a public service company need not be given unless specifically required by the statute.</p> <p>2. Same — Waiver of Notice Required by Statute.</p> <p>Where a party is entitled by statute to notice, in a particular manner, of a rate-making order made by the Corporation Commission; he may waive the statutory manner of service by appearing and participating in the proceedings in which the order is made.</p> <p>3. Same — Power to Prescribe Temporary Rates.</p> <p>The rate-making power of .the 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>4. Same — Nature of Rate-Malting Power.</p> <p>The power to regulate rates and charges rendered the public by public service corporations is inherent in the state, and is a necessary attribute of sovereignty.</p> <p>5. Constitutional Law — State Powers — Rate-Making.</p> <p>■Section 7, article 18, of the Constitution of ■ Oklahoma, expressly prohibits the surrender by the state government of the power to regulate the charges for public services.</p> <p>6. Gas — Rate Regulation — Corporation Commission — Powers of City Charters.</p> <p>The supreme .legislature of the state having delegated the exclusive power of regulating rates for gas furnished by public utilities to the Corporation Commission, the state has such a sovereign interest in this subject of legislation as to preclude the cities of the state from entering this field by charter provisions or otherwise.</p>

Error from District Court, Washington County; R. B. Boone, Judge. Action by P. D. Lindsay against the Missouri, Kansas & Texas Railway Company for personal injuries. On motion of plaintiff the trial court granted a new trial on the ground of the smallness of the verdict, and the defendant brings error.

Error from District Oourt, Rogers County; W. J. Campbell, Judge. Action by J. C. Eaton against E. P. Young and M. O. Swan, to recover • damages for breach of a contract. Judgment for the plaintiff, and defendants appeal.

<p>(Syllabus.)</p> <p>1. Compromise and Settlement — Validity— Settlement Between Partners.</p> <p>Where two parties, having engaged in business for several years as partners, agree upon a settlement of their business transactions and enter into a written contract of settlement wherein one of the partners to the settlement acknowledges an indebtedness in a certain amount to the other partner, such a contract of settlement is conclusive upon the parties in the absence of fraud or mistake clearly established by the party- seeking to avoid the contract of settlement.</p> <p>2. Same — Action on Note — Defense—Demurrer to Evidence.</p> <p>In an action by plaintiff against defendant, as indorser upon a promissory note, where the defendant admitted the execution of the note, the transfer and indorsement thereof, but filed a counterclaim against the plaintiff alleging that the plaintiff was indebted to him in the sum of $30,000 by reason of ’the defendant having paid to the plaintiff $30,-000 through mistake in settling with the plaintiff and accounting to him' for 'the proceeds of the sale of certain oil properties sold by the defendant, part of the property sold being owned jointly by the plaintiff and defendant and in part by the defendant individually, and the evidence, in the action disclosed that about two years after the sale of the properties by the defendant the plaintiff and the defendant entered into a written contract of settlement in which, the defendant acknowledged himself, on account of past transactions including the sale of the property, indebted to the plaintiff in the sum of $30,000, and the evidence showed that the contract was fairly entered into, and the defendant wholly failed to introduce any testimony tending to establish fraud or mistake in entering into the contract of settlement, and at the close of the testimony of the de-rendant attacking the contraer of settlement a demurrer was filed to defendant’s testimony — Held, that the trial court erred in overruling the plaintiff’s demurrer to the defendant’s testimony, and under the evidence as presented it was the duty of the trial court to sustain the demurrer of the plaintiff to the defendant’s testimony and instruct the jury to return a verdict in favor of the plaintiff for the amount found to be due from the evidence.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by Close Brothers- against the Board of Oommissn evs <>f Oiciaboma Ooujnty to recover part of penalties collected on certain paving warrants. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Taxation — Gross Production Tax— Validity of Statute.</p> <p>The validity of the act approved March 11, 1915, and being article 2, subdivision A, section 1, chapter 107, Session Laws 1915, and amending section 7464, Revised Laws 1910, is affirmed by authority of case of In re Gross Production Tax of Wolverine Oil Co. (No. 7426), found in 53 Okla. 24, 154 Pac. 362.'</p> <p>2. Same — Case Overruled in Part — Nature of Tax.</p> <p>The holding in the above cited case that a gross production tax as provided in said provisions is an occupation tax and not a property tax, is overruled so far as material *and in conflict with the holding in the case of In re Protest of Skelton Lead & Zinc Company’s Gross Production Tax for 1919, decided in opinion by Chief Justice Harrison, April 5, 1921, 81 Okla. 134, 197 Pac. 495.</p> <p>This is an original action filed in the Supreme Court of the state of Oklahoma to determine the validity of a portion of the act approved March 11, 1915, being an act entitled:</p> <p>“An Act To Provide a Direct and Indirect System of Taxation, Article 1. Dire, ¡ System' of Taxation — 'Amendments—’being a portion of tbe Session. Laws of 1915, chapter 107, House Bill Ño. 84, and covering mining and gross revenue tax, and tbe part involved herein’being article 2, subdivision A, section 1, amending section 7464, Revised Laws 1910. Approved March 11,'1915. Emergency declared thereunder. Declared to be effective and in force from and after its passage and approved.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Dismissal—Failure to Comply With Court Order.</p> <p>Where plaintiff in error fails and refuses to comply with an order of this court and does not offer a reasonable excuse for such failure, a motion to dismiss will be sustained and the appeal dismissed.</p>

Error from District Court, Sequoyah Coun-ty; John H. Pitchford, Judge. Action by Charles' Tootle against W. W. Payne and others for possession of land and damages. • Judgment • for defendants, and plaintiff brings . error.

<p>(Syllabus.)</p> <p>Appeal and Error — Briefs—Citation of Authority.</p> <p>. A plausible, but not convincing, argument m the brief, unsupported by citation of authority, is not sufficient to overcome the presumption indulged by the Supreme Court m favor of the correctness of the judgment of the trial court.</p>

' Error from District Court, Grady County; Will Linn, Judge. Action by C. W. Harper and another against Harris James and others to cancel deed. Judgment for defendants, and.plain,.tiffs bring error.

<p>Error from District Court, Cotton County; Cham Jones, Judge.</p> <p>Action by R. J. Edwards against School District No. 222, Cotton County. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Payne County; John P. Hickam, Judge. Action by Maggie Luke against the city of Cushing for damages from pollution of stream. Judgment for plaintiff, and defendant brings error.

<p>Error from Superior Court, Muskogee County; Guy' E. Nelson, Judge.</p> <p>Action toy D. M. Bernath and Harry Marco-vitz, partners, doing, 'business as Marcovitz Bros., with garnishment against Ike Kolosky and others. Judgment toy default against garnishees was set aside, and plaintiffs bring error.</p>

<p>Error from District Court, Logan County; John P. Hickam, Judge.</p> <p>Action by Frances Chestnut against the Knights and Daughters of Tabor and Jurisdiction on fraternal insurance policy. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Kay County; J. W. Bird, Judge. Action by Jesse C. Feagins and Annie Feagins against L. McKinlay to cancel and remove as a cloud an oil and gas lease. Judgment for plaintiffs decreeing cancellation of the lease, and defendant appeals.

Error from District Court, Ellis County; T. P. Clay, Judge. Action by J. G. Arbuthnot against Berk-ley Dawson for the recovery of money. Yerdict and judgment in favor of the plaintiff, and defendant appeals.

Error from District Count, Cleveland County; F. B. Swank, Judge. Action by Alla May Cornelius against Benjamin F. Cornelius for divorce. Judgment for plaintiff as to property rights, and defendant brings error.

Error from District Court, Garfield County; James B. Cullison, Judge. Action by E. J. Cowles against the Logan Oil & Gas Company to enforce labor lien; in-terpleas by the Guaranty State Bank of Drumright and Chas. L. Tague. Judgment for the bank, and Tague brings error.

Error from County Court, McClain County; Geo. F. Johnson, Judge. Proceedings 'by - the State to forfeit automobile used to convey intoxicating liquors, in which Elmo Hoskins, by Nora G. Hoskins, guardian, intervened as owner. Judgment of forfeiture, and intervener brings error.

-'¡¡Error, from. County Court, Rogers County; Edward' Jordan, -Judge.- ;• ' - ■ . ■' Action to forfeit to the State of Oklahoma on-e Baby Grand, five passenger, Chevrolet automobile. The State Bank . of Collins-ville appears as interpleader. Judgment forfeiting the automobile and against the claims of the interpleader. The State Bank of Collinsville appeals.'

<p>Error from County Court, Rogers County. Edward Jordan, Judge.</p> <p>Action to forfeit to the state of Oklahoma One Overland Roadster automobile. Morgan Brothers and Mary E. Shuey appear as interpleaders. Judgment forfeiting the automobile and against the claims of the in-terpleaders. Morgan/ Brothers' and Mary E. Shuey appeal.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to Filé Brief— - Reversal.</p> <p>Where the defendants in error fail to file a brief and have 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>

<p>(Syllabus.)</p> <p>1. Divorce — Grounds—Abandonment by Wife.</p> <p>Where the wife leaves the home of the husband and takes up her abode with her parents and refuses to return or live with the husband for a period of more than one year, the same amount's to abandonment within the meaning of subdivision 2 of section 4962, Revised Laws 1910; and where the evidence fails to disclose any good cause or reason for the wife leaving said home and refusing to live with her husband, the husband is entitled to a divorce upon the grounds of abandonment.</p> <p>2. Divorce — Appeal—Sufficiency of Evi- ' dence — Reversal.</p> <p>In a divorce action where the judgment of the trial court is clearly against the weight of the evidence, said judgment will •be reversed on appeal;</p> <p>3. Appeal and Error — Settlement of Case-Made — ‘Waiver as to Timé.</p> <p>Where due notice is given of the time and place that a case-made will be presented to the trial judge for settlement and signature and the party upon whom said notice is served appears at the time and place designated in the notice, and suggests no amendments and makes no objection to the signing and settlement of the ease-maide on said date, although the time fixed therein for presenting said case-made to the judge for signing and settlement may be at a time earlier than it could be presented and signed, held, the voluntary appearance of the party at the settlement without objection operates as a waiver regarding the time when said case-made may be settled.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to File Brief— Dismissal.</p> <p>Where plaintiff in error has filed no brief as required by rule 7 of this court (47 Okla. vi. 165 Pac. vii), and given no excuse for not filing the same, it will be presumed he has abandoned his appeal, and when reached on submission the appeal will be dismissed.</p>

Error from District Court, . Oklahoma County; John W. Hay son, Judge. Action by John H. Bellis against R. M. Crissman and others to recover on a bond. A demurrer to plaintiff’s evidence was sustained, and plaintiff appeals.

<p>(Syllabus.)</p> <p>1. Landlord and Tenant — Duty of Land- . lord to Keep House in Safe Condition— Merchant Tenant.</p> <p>Where a landlord leases to one tenant the first story of a two-story building, retaining the second story, which he leases to other tenants and agrees with the lessee of the first story to keep other portions of said building in such condition and repair that the stock of goods belonging to the lessee of the first story shall not be damaged by the elements, there is no obligation resting upon the lessee of the first story to notify the landlord of any defective condition of the roof of said building. It is the duty of the landlord to keep the roof of said building in such repair that the tenant of the first story, who has no charge or control over the remaining portions of said building, shall npt suffer any loss or damage to his stock of goods by reason of water leaking through the ropf of said building when it rains.</p> <p>2. Same — Action by Tenant for Damages to Goods — Instruction.</p> <p>Under the facts and evidence in this case it was not error to give instruction No. 4.</p> <p>3. Same — Defensive Evidence — Admissibility.</p> <p>Where the defendant offered to prove by a witness that at the time of the rain complained of said witness saw tubs and pans placed in some of the rooms in the second story of the building and immediately above jthe storeroom of plaintiff, which tubs and pans caught the major portion of the water dripping through the' roof, but that a small quantity of water was not caught but leaked through the store of the plaintiff, held, that it was not error to refuse the proffered testimony. The words “major portion” and “small quantity” are relative terms, and do not tend to disprove the fact that the plaintiff suffered • damages as alleged.</p> <p>4. Witnesses ■— Cross-Examination ■— Scope.</p> <p>A defendant may no.t be permitted to make out his defense by the cross-examination of the plaintiff or his witnesses on matters not brought out on direct examination.</p>

<p>(Syllabus.)</p> <p>1. Judgment — Conclusiveness—Demurrer to Pleadings.</p> <p>A judgment or decree rendered on demurrer .to a material pleading on the ground that the facts therein stated aré insufficient in law is conclusive of the' matters and things confessed by the demurrer as a verdict finding the same facts to be true; and such a judgment or decree, unappealed from becomes a final judgment or decree upon thf merits. Corrugated Culvert Co. v. SimpsoD Tp., 54 Okla. 178, 151 Pac. 854.</p> <p>2. Judgment — Res Judicata — Matters Coin-cluded.</p> <p>The judgment of a court of competent jurisdiction upon the merits is conclusive between the parties .and those in privity with them, and' the facts therein adjudicated can never thereafter be contested between them in another action merely upon a different theory where the primary purpose and effect of the subsequent action is the same as that of the former action and where the material facts of the sublsequent action were, or might have been, presented as constituting the claim or defense in the former action.</p> <p>3. Same — Enforcement of Mortgage Lien.</p> <p>Where a party brings an action to foreclose a real estate mortgage executed for the purpose of securing the payment of a specific indebtedness, and a demurrer is filed by the . defendants in the action to the petition of the plaintiff on the ground that the petition does not state a cause of action, and the trial court renders judgment sustaining the demurrer of the defendants, and the plaintiff in open court announces his intention to stand upon his petition, prays for an order of appeal to the Supreme Court, but- fails to prosecute his appeal, permits the judgment sustaining the demurrer and dismissing his action to become- final, held to be res adjudi-cata in a subsequent action wherein the plaintiff seeks to establish an equitable! lien upoln the same property described in the mortgage and to subject said property to the payment of the same indebtedness as pleaded in the former action.</p> <p>.4. Subrogation —. Payment by Mortgagee of Prior Mortgage and Judgment Lien.</p> <p>Where the proceeds of a loan, secured by a mortgage, are used to pay a prior mortgage' and judgment lien upon the property mortgaged, and said mortgage and judgment lien are' released of record; the mortgagee furnishing the money to pay such mortgage and judgment lien, being in no way obligated to pay the same, and there being no agreement that such mortgagee be substituted to the rights of the mortgagee or judgment creditors, the doctrine of subrogation in such a situation has no application.</p>

Error from District Court, Tulsa County ; Owen Owen, Judge. Action 'by the Skelly Oil Corrtpany against the Globe Oil Company and others. From order . appointing a ■ receiiyer Jot property involved, plaintiff brings; error.

<p>Error from District Court, Tulsa County; Conn Linn, Judge.</p> <p>Action by Charles E. Potter, administrator of the estate of G. E. Potter, deceased, against T. A. Dillinger, J. W. Young, and Irene Jones, as executrix of the last will of W. P. Ewing, deceased. Judgment for plaintiff, and defendants bring error.</p>

Original proceedings in mandamus instituted in this court. Action for peremptory writ of mandamus brought by the State of Oklahoma at the relation of S. P. Freeling, Attorney General, against W. R. Taylor, O. A. Cargill, T. J. Bodine, A. E. Bockoven, James F. Beaty, Anna Burke Love, and J. N. Abernathy, constituting and composing the Excise Board of Oklahoma County, State of Oklahoma.

<p>Error from District Court, Wagoner County; R. P. deGraffenried, Judge.</p> <p>Action between Henry Secrest and the First State Bank of Coweta, From the judgment, the former brings error.</p>

Proceedings before the Corporation Commission against the Missouri, Kansas & Texas Railway Company to require said railway company to construct and maintain certain undergrade crossings in Atoka County. From this order, the railway company appeals.

Error from District Court, Beaver County; John A. Spohn, County Judge. Action by Bernardine S. Wiles and another against Clifton C. Cope and another to obtain an injunction. Temporary injunction granted against defendants. Defendants appeal.

<p>(Syllabus.)</p> <p>1. Torts — Right to Recover for Wrong.</p> <p>One who is injured by the wrongful act of another may recover any pecuniary loss sustained by reason of such, injury.</p> <p>2. Nuisance — Statutory Definition.</p> <p>Section 4250, Rev. Laws 1910, defines a nuisance as follows:</p> <p>“A nuisance consists in unlawfully doing an act, or omitting to perform a duty, which act or omission either:</p> <p>“First, annoys injures, * or endangers the comfort, repose, health or safety of others; or, Second, offends decency; or, Third, unlawfully interferes with, obstructs or tends to obstruct, or renders dangerous for passage, any lake or navigable river, stream, canal or basin, or any public park, square, street or highway; or, Fourth, in any way renders other persons insecure in life, or in the use of property.”</p> <p>3. Same — Private Nuisance — Right to Damages.</p> <p>Where the facts show that a lawful business is being conducted in such manner as to constitute a private nuisance, causing substantial injury to comfort, health, or ' property, the aggrieved' party may recover compensation for the injury sustained.</p> <p>4 Appeal and Error— Review — Verdict— Sufficiency of Evidence.</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 the finding of the jury will not be disturbed on appeal.</p>

<p>(Syllabus.)</p> <p>1. Elections — Illegality of Ballots — Presumption and Burden of Proof.</p> <p>Where an election is held by duly appointed officers, the presumption is that the votes received and counted by them are legal, and the burden is on the party attacking the same to show itheir illegality.</p> <p>2. Same.</p> <p>Where it is sought to review the validity of an election on the ground of illegal voting, those seeking to overcome the result as declared by the election officers have the burden of proving, not only that illegal votes were cast in sufficient number to change the result, but toy whom and for whom, or for wliat issue or question submitted, such votes were cast.</p> <p>3. Trial — Demurrer to . Evidence — Consideration.</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, and when, so considered, the evidence is insufficient to entitle the plaintiff to the relief prayed for and the defendant presents a demurrer thereto, it is the duty of the trial court to sustain the demurrer and dismiss the plain tiff’s petition.</p> <p>4. Elections — iContest for Office — Judgment — -Affirmance.</p> <p>Record examined, and the judgment of the trial court affirmed.</p>

<p>Original action by Associated Employers’ Reciprocal and E. L. Robinson, petitioners, against State Industrial Commission and Basil D. McClain, respondents, to reverse award made by the State Industrial Commission in favor of Basil D. McClain.</p>

<p>(Syllabus.)</p> <p>1. Wills — Probate—Jurisdiction—Statute.</p> <p>'Wills must be proved, and letters testamentary or of administration granted: First. In the county of which the decedent was a, resident at the time of his death, in whatever place he may have died. Second. In the county in which the decedent may have died, leaving estate therein, he not being a resident of the state. Third. In the.county in which any part of the estate may be, the decedent having died out of the state, and not resident thereof at the time of his death. Fourth. In the county in which any part of the estate may be, the decedent not being a resident of the state, but dying within it and not leaving estate in the county in which he died. Fifth. In all other cases, in the county where application for letters is first made. Section 6193, Revised Laws of Oklahoma, 1910. ! ■</p> <p>•2. Same — Ancillary Probate of Domiciliary Will — County Court.</p> <p>Under the laws of this state the county court is not vested with jurisdiction to allow the ancillhry probate of a domiciliary will based on a foreign probate. In the absence of a law authorizing such jurisdiction it cannot be conferred by agreement.</p> <p>3. Evidence — Parol Evidence to Impeach Records — Action to Quiet Title — Domicile of Ancestor.</p> <p>When a party to an action offers record evidence to establish his title to real estate, and such record evidence shows that his ancestor, and under whom he claims title, was domiciled in Beckham county, Oklahoma, at the time of his death, in the absence of fraud, accident, or mistake, he cannot impeach the record 'by parol proof that his ancestor was domiciled in Nebraska at the time of his death.</p>

<p>Error from District Court, Kay CotiPty; Wm. M. Bowles, Judge.</p> <p>Action by Joseph W. Wilson, A. A. McFallj and Charles M. Baird against B. E. LaDow & Company to quiet title. Judgment for plaintiffs, and defendant appeals.</p>

Error from District Court, Tulsa County; Redmond S. Cole, Judge. Action by James A. Stephenson and others against F. A. Young for balance of purchase price of corporation stock. Judgment for plaintiffs, and defendant brings error.

Error from District Court, Tulsa County; N. E. McNeill, Judge. Action by Nellie R. Schrader against the Sand Springs Park, a corporation, and others, for personal injuries.. Judgment for plaintiff against the defendant named, and it brings error.

Error from District Court, McIntosh County; R. W. Higgins, Judge. Action by .Silas A. Hollinshed against A. L. Mills, receiver of the Ft. Smith & Western Railway Company, for negligent destruction of wagon and team. Judgment for plaintiff .and defendant brings error.

Error from District Court, Murray County; F. B. Swank, Judge. Action by the Jones-Everettt Machine Company against Wiiliam J. Scott on account and to foreclose materialman’s lien. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Appeal and Error — Time for Objections —Form of Verdict — Replevin.</p> <p>In an action of replevin the jury found generally) for the plaintiff. At ‘the time of the ;trial the animal was in the posses-, sion of the defendant. The verdict did not describe the animal or fix its value. . No objection was made to the form of the verdict until the next day after it was filed, when it was assigned as error in the motion for a new trial. Held, that no timely objection to tbe form of the verdict having been made, no reversible error is presented.</p> <p>2. Replevin — Judgment—Value of Property —Form of Verdict — Waiver.</p> <p>In an action of replevin, where the property was in the possession of the defendant 'at the time of the trial, and the verdict was for the plaintiff, but failed to fix the value of -the property, and no timely objection was made to the form or substance of tbe verdict, and there being no conflict in the evidence as to tbe value of tbe property, it was not prejudicial error for the court to render judgment against tbe defendant for the value of tbe p.róper.ty. in tbe event it should not be returned to the plaintiff.</p> <p>3. Replevin — Demand—Costs.</p> <p>In order to maintain an -action of re-plevin, even where the original taking was not tortious or wrongful, a demand for possession of the property is not q condition precedent; but where the defendant was rightfully in possession and there was no evidence of demand, he- is- entitled to costs, upon a tender of the property to the plaintiff, but if he does not tender the property to the plaintiff by answer or plea and contests the action, the writ will be a sufficient demand, and defending the action a refusal, and costs should be taxed against the defendant.</p> <p>4.Appeal and Error — Review — Verdict Sufficiency, of Evidence. '</p> <p>In a law action, where there is competent evidence reasonably tending to support the verdict of ¡the jury, and no prejudicial errors of law are shown in the instruction of the court, or its ruling upon * Questions of law presented during the trial, the verdict and finding of the jury are conclusive upon appeal.</p>

<p>(Syllabus.)</p> <p>1. Pleading — Amendment of Petition— Change in Caption.</p> <p>Plaintiff instituted an action against O. D. 'Smith & Co. Service of Isumimons was had upon O. D. Smith and A. C. Enochs. The defendant Smith filed an answer containing' a general denial for .himself, and an allegation that there was no.such firm, individual, or corporation as O. D. Smith & Co. The plaintiff dismissed his action against A. C. Enochs, and was granted leave to change the caption of the petition by striking therefrom the words “& Co.” Held, not error, as the amendment did not substantially change plaintiff’s claim, and it is not shown that any prejudice resulted to the defendant by reason of the amendment.</p> <p>2. Appeal atad Error —. Review — Questions of Fact — Verdict—Negligence.</p> <p>The law is well settled that what is or what is not negligence in a particular case is generally a question for the jury, and where the jury has returned a verdict, and there is competent evidence reasonably tending to isupport the verdict, and the instructions of- the court to. the jury fairly state the law arising upon the issues raised by the pleadings and the evidence, the judgment rendered upon the verdict will not be disturbed by the Supreme Court.</p>

<p>Error from District Court, Carter County: W. P. Freeman, Judge.</p> <p>Action by Virginia Johnson against E. B. Johnston and others to cancel deed. Judgment for defendants, and plaintiff brings error.</p>

<p>(Syllabus.)</p> <p>1. Conversion — Right of Action — Demand,</p> <p>In an action for damages for wrongful conversion, demand is not a necessary prerequisite to the commencement of the action, where the act of conversion has been consummated and demand would be a useless act.</p> <p>2. Pleading — Petition—Sufficiency on Demurrer.</p> <p>On a demurrer to a petition as defective, in that it does not state facts sufficient to constitute a cause of action, the petition must be liberally construed, and all its allegations taken as true for the purpose of the demurrer.</p> <p>3. Trial — Demurrer to Evidence.</p> <p>When a demurrer is interposed to the evidence of plaintiff and there is competent evidence reasonably tending to support the allegations of the petition, it is not error to overrule such demurrer.</p> <p>4. Trial — Direction of Verdict — Decision on Motion.</p> <p>The question presented to a trial court in the motion to direct a verdict is whether, admitting the truth of all the evidence that has been given in favor of the party against whom the action is contemplated, together with such inferences and conclusions as may be reasonably drawn therefrom, there is enough competent eyidence to reasonably sustain a verdict should the jury find in accordance therewith.</p> <p>5. Appeal and Error — Review—Instructions —Prejudicial Error.</p> <p>Requested instructions of the defendant which were refused by the trial court, examined, and held, that in each instance the instructions either failed to state the question of law involved correctly, or that the same was properly submitted to the jury by the trial court, and that therefore the refusal of the court to give such requested instructions was not prejudicial error.</p> <p>6. Conversion-Instructions.</p> <p>Instructions, considered as a whole, held to correctly state the law and fairly submit the issues to the jury, arising upon the proof.</p> <p>7. Appeal and Error — Discretionary Rulings —New Trial.</p> <p>A motion for new trial on the ground of newly discovered evidence is addressed to the sound discretion of the trial court, and where the record does not show an abuse of such discretion, the court’s action on such motion will not be disturbed by the Supreme Court.</p> <p>8. Appeal and Error — Review—Verdict— Sufficiency of Evidence.</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 instrfictions 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>

Error from District Oourt, Muskogee County ; E. A. Summers, Judge. Action by Allie Sharum against A. H. Sharum for damages for instigating assault and battery. Judgment for plaintiff, and defendant brings error.

<p>Error from -Superior Court, Okmulgee County; R. E. -.Simpson, Judge.</p> <p>Action by Andy Obialero against the Hen-ryetta Spelter Company to abate nuisance and for damages. Erom the judgment, both parties bring error.</p>

<p>Error from District Court, Love County; Thomas W. Champion, Judge.</p> <p>Action by Sherwood Gaines against J. E. Montgomery in ejectment. (C. E. Morris, intervener). Judgment against plaintiff, and he brings error.</p>

<p>(Syllabus.)</p> <p>Appeal and Error — Failure to File Brief— Dismissal.</p> <p>When a ease is pending in this court and is set for hearing on the regular printed docket, and the plaintiff in error fails to file brief in compliance with rule No. 7, of this court, under said rule this court may exercise its discretion and dismiss the appeal for failure to file .brief.</p>

Error from District Court, Payne County; John P. Hicham, Judge. Action by Delbert Holt against Thad Spencer and others for damages for personal injuries. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>Appeal and Error — ¡Review—Failure of Defendant in Error to File Brief.</p> <p>In an action appealed to this court, where the plaintiff in error filed brief showing Service upon the defendant in error and no brief is filed by the defendant in error and no reason given showing why the defendant in error has not filed brief, and the brief of the plaintiff in error reasonably supports his assignments of error, this court is not required to search the record to find some theory upon which the judgment of the trial court may be sustained, but this court will reverse the judgment in accordance with the prayer of the petition in 'error.</p>

Error from District Cour.t, Mayes County; Preston S. Davis, Judge. Action by Charles E. Schaff, as receiver of the property of the Missouri, K. & T. Railway Company, against O. J. Borum, County Treasurer, to recover taxes alleged to have been illegally assessed against property of the plaintiff. Judgment for defendant, and -plaintiff x appeals.

Proceedings by the Standard Paving Company and J. T. Lantry against the Atchison, Topeka & Santa Fe Railway Company and others for adjustment of freight rates. From order of the Commission, the railway companies appeal.

<p>Error from District Court, Stephens County; Cham. Jones, Judge.</p> <p>Erom judgment in favor of C. C. Richards, B. E. Horn and J.- S. Mullen bring error.</p>

Error from County Court, Oklahoma County; W. R. Taylor, Judge. Proceeding bv the ^ ('.pj-i-ain personal property as contraband under the prohibition laws; Jack Stanley and others intervening as owners or lienholders. Judgment for the State, and interveners bring error.

Error from District Court, Creek County; Ernest. B. Hughes, Judge. Action in ejectment by B. L. Wilkinson'and Eugene B. Smith against A. H. Stone and others. Judgment for defendants, and plaintiffs bring error.

<p>(Syllabus.)</p> <p>Trial — Demurrer to Evidence — Consideration.</p> <p>One interposing a demurrer to tbe evidence admits all facts which the- evidence tends to prove, and all the inferences or conclusions which may be reasonably and logically drawn therefrom. Therefore^ where a petition states a cause, or when the evidence and all the inferences reasonably deducible • therefrom fairly sustain a cause of action and the proof fairly sustains same, it is error to sustain the demurrer to the evidence.</p>