Volume 83 — Oklahoma Reports

<p>(Syllabus.)</p> <p>1; Trial — Motion to Direct Verdict — Consideration.</p> <p>A motion by the defendant for a directed verdict at the close of the plaintiff’s evidence presents to the trial court the question whether, admitting the truth of the evidence which has been given in favor of the plaintiff, together with such inferences and conclusions as may be reasonably drawn from it, there is enough competent evidence to reasonably sustain a verdict, should the jury find in accordance therewith. Where the evidence is conflicting and the court is asked to direct a verdict, all facts and inferences in conflict with the evidence against which -the action is to be taken must be eliminated entirely from consideration, and totally disregarded, leaving for consideration that evidence which is favorable to the party against whom the motion is leveled. If upon such consideration, there appears to be sufficient evidence to support a verdict for the plaintiff, it is not error to overrule the motion to direct a verdict for the defendant.</p> <p>■* 2. Appeal and Error — Review — Requisites of Instructions! — Reversal.</p> <p>It is the duty of a trial court to give, upon his own motion, proper instructions substantially covering the issues and the evidence produced at the trial of any cause, and it is fundamental error for it to fail so to do; and when an inconsistent instruction has been given, and after an examination of the entire record this court finds that there is a probability that the giving of said inconsistent instruction has probably resulted in a miscarriage of justice, this court will reverse said cause and grant a new trial.</p> <p>3. Appeal and Error — Time for Objection— Variance — Waiver.</p> <p>A variance between the pleadings and the evidence at a trial where the question of such variance is not raised at the time of the in troduction of the evidence and exception saved, but is raised for the first time on appeal in the appellate court, will be held in the appellate court to be waived and review of such alleged error will be refused by the appellate court.</p> <p>4. Same — Objection to Remarte of Counsel</p> <p>Where remarks of an attorney are objected to and no request m'ade of the trial court to withdraw from the consideration of the jury the objectionable remarks, consideration of the same will be refused by the appellate court on appeal, and the same will be held to have been waived; especially so when the objectionable remarks are voluntarily withdrawn by the attorney making the same.</p>

<p>Error from Superior Court. Muskoslee County: Guy P. Nelson. Judge.</p> <p>Action by M. A. Munding against A. B. Currants: First National Bank of Siloam Springs. Arkansas, intervener. Judgment for plaintiff and against intervener. Inter-vener appeals.</p>

<p>(Syllabus.)</p> <p>1. Army and Navy — Soldiers’ Relief Act— Stay of Action During Military Services —Codefendants.</p> <p>“Any stay of any action, proceeding, attachment, or execution, ordered toy any count under the provisions of this act may, except as otherwise provided, be ordered. for the period of military service and three months thereafter, or any part of such period, and subject to such terms as may be just whether as to payment in installments of such amounts and at such .times as the court inay fix or otherwise. Where the person in military service is a codefendant with others, the plaintiff may, nevertheless by leave of court, proceed against the others.” Act of March 18, 1918, chap. 20, section 204, 40 Stat. (section 10321, Barnes’ Federal Code, 1919).</p> <p>2. Same — Effect of Dismissal as to Code-fendant in Military Service — Refusal of Continuance.</p> <p>Where a person in the military service is a codefendant with others and the other defendants ash for a continuance of the cause under the act of March 18, 1918, supra, and thereupon the. plaintiffs dismiss the action with prejudice as against such person in the military service and the court refuses to grant the continuance, in the absence of an abuse .of discretion or a showing of prejudicial error, the order of the court refusing to grant the continuance will not be reversed on appeal.</p> <p>3. Pleading — Judgment on Pleadings — Refusal.</p> <p>Where the petition of the plaintiff clearly states a cause of action, and the reply contains simply a general denial of the allegations set forth in the answer, and the opening statement of the plaintiff does not show a state of facts which would preclude plaintiff’s right of recovery, it is not error for the court to refuse to render judgment in favor of the defendants on the pleadings and opening statement of the plaintiff.</p> <p>4. Appeal and Error — Record—Showing of Error — Record Evidence — Affidavit for Continuance.</p> <p>Where only a portion of an affidavit for a continuance is read to the jury, and the record fails to show why the Cither portion of the affidavit was not read, and no demand was made to read the other portion of the affidavit by the party offering the same as evidence, such record does not show that error was committed by the trial court because the other portion of the affidavit was not read to the jury.</p> <p>5. Appeal and Error — Necsssity for Prejudice — Amendment of Pleadings.</p> <p>Where the defendants ash leave of court to amend their answer to conform to the proof on a certain issue, and the trial court submits the issue to the jury under appropriate instructions, but refuses defendants’ request to amend the answer, the court has thereby treated the answer as amended so far as the submission of the case to the jury is concerned, and no prejudicial error was committed by refusing to permit defendants to make the interlineations in the answer.</p> <p>6. Master and Servant — Action for Negligent Death of Mine Employe — Instruc- ■ tions — Sufficiency.</p> <p>The instructions examined; held,-that they fairly cover the case and state the law.</p>

Error from District Court, Tulsa County; Redmond S. Cole, Judge. Action for specific performance, upon agreed statement, by the Board of Education of the City of Tulsa against the Atlas Life Insurance Company. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>1. Municipal Corporations — Power to Issue Securities — Legislative Authority.</p> <p>Municipal corporations cannot issue bonds or other like securities unless the power to do so is conferred by legislative authority either express or clearly implied.</p> <p>2. Same — Charter Powers — AJse of Street Improvement Bonds.</p> <p>Record examined, and held, that section 16, art. 9, of the city charter does not con fer power upon the city to issue street improvement bonds for the construction of street intersections and alley crossings where the city elects to pay the same out of the general revenues of the city.</p>

Error from District Court, Garfield County ; James B. Cullisdn, Judge. Action by Ray Boston against James W. Lusk, William C. Nixon, and William B. Biddle, as receivers of the St. Louis & San Francisco Railroad Company, a corporation, to recover damages for loss sustained by fire resulting from the negligent acts of the servants, agents, and employes of the defendants. Judgment for plaintiff, and defendants appeal.

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by Sam I. Hynds & Company against B. Jacobs for damages for failure to deliver cotton sold. Judgment for plaintiff, and defendant brings error.

Error from District Court, Oklahoma County; James I. Phelps, Judge. Action by W. R. Muhlhausen against J. B.. Klein for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus.)</p> <p>L Brokers — Judgment for Commission— Sufficiency of Evidence.</p> <p>Evidence examined, and held to be sufficient to support the verdict of the jury.</p> <p>2. Trial — Instructions—Refusal of Requests —Repetition.</p> <p>It is not error to refuse instructions requested, where the instructions, so far as they correctly state the law applicable to the case, are covered by the instructions given by the court.</p> <p>3. Trial — Instructions—Sufficiency — Construction.</p> <p>The instructions of the court should be considered as a whole and in their entirety, and no particular paragraph thereof should be singled out and given an interpretation which some other paragraph clearly shows was not intended to be placed upon it.</p> <p>4. Corporations — 'Venue of Actions Against —Process.</p> <p>O. brought suit in Grady county against a domestic corporation which had its principal office and place of business in Garfield county, and obtained service of summons upon the president of the corporation in Grady county. Held, the court had jurisdiction of the corporation, the president of the corporation being in Grady county, not' “going, returning, or attending in obedience to any subpoena,” nor being in Grady county, through any artifice, trickery, or fraud, or the procurement of the plaintiff.</p>

Error from District Court, Craig County, Preston S. Davis, Judge. Action by Malinda Élton and another against Charles E. Schaff, receiver of the Missouri, Kansas & Texas Railway Company, for damages for negligent death of husband of plaintiff named. Judgment for defendant, and plaintiffs bring error.

Error from Superior Court, Okmulgee County; H. R. Christopher, Judge. Action by Thomas Harvey Scott against Sammy Taylor, Jr., a minor, and others. Judgment for plaintiff, and defendant named brings error.

Error from District Court, Major County; James B. Cullison, Judge. Action 'by the State on the relation of Ben Smith, County Attorney of Blaine County, and others against Louesa A. Specht, County Superintendent of Major County, for mandamus. Judgment for defendant, and plaintiffs bring error.

<p>(Syllabus.;</p> <p>1. Injunctibn — Indirect Contempt — Violation of Injunction Affecting Private Rights.</p> <p>Where a complaint charges a person with the violation of an injunction or restraining order made 'by a court or judge of this state, which injunction order was issued either for the protection of, or enforcement of a private right, and the violation of such order was not committed in the presence of the court, such a complaint charges an indirect contempt, and not a direct contempt.</p> <p>2. Jury — Jury Trial — Constitutional Right —Indirect Contempt.</p> <p>Under section 25, art. 2, Constitution of Oklahoma, a person charged with an indirect contempt shall, upon demand, and before penalty or punishment is imposed, be entitled to a trial by jury as to the guilt or innocence of the accused.</p> <p>3. Habeas Corpus — Indirect Contempt — Refusal of Jury Trial — Invalidity of Orders.</p> <p>When a person is charged with an indirect contempt and has demanded a jury trial and such demand has been refused by the trial court, any order made by such trial court adjludging the accused guilty of contempt or attempting to commit him to jail or which imposes any other penalty, is void.</p> <p>4.Habeas Corpus — Scope of Inquiry.</p> <p>The inquiry of the state Supreme Court on writ of. habeas corpus is not limited to a consideration of the question of jurisdiction of the person and the subject-matter, but the jurisdiction of the court to rendér the particular judgment or issue the process is a proper subject of inquiry.</p>

Original proceedings in habeas corpus. Writ allowed. This is a companion case of E. F. Blanchard against J. W. Bryan and M. E. Bryan, No. 12074, 83 Okla. 33, 200 Pac. 444, and is decided upon the authority of that case.

Error from County Court, Tulsa County; H. L. Standeven, Judge. Action by the State of Oklahoma to forfeit one Paige touring car No. 92,052, W. J. McNeil, claimant. Judgment of forfeiture in favor of the State. Claimant brings error.

<p>(Syllabus.)</p> <p>Appeal and Error — Jurisdiction — Time for Appeal.</p> <p>Under the act of the Legislature approved February 14, 1911, eh. 18,</p> <p>Session Laws 1911, pg. 35, and the act of the Legislature approved the 23rd day of March, 1917, ch. 219, Session Laws of 1917, pg. 403, this court is without jurisdiction to entertain an appeal unless commenced by filing the record of the case by transcript or case-made and petition in error in this court within six months after the rendition of the judgment or final order from which the appeal is taken. Ham et al. v. Yeasey, 79 Okla. 133, 191 Pae. 1094; Hall v. Bank of Commerce of Okmulgee, 80 Okla. 40, 193 Pac. 990.</p>

Error from District Court, Greek County;' Mark L. Bozarth, Judge. Action by Clara Boucher and others against the Mutual Life Insurance Company on life insurance policy. Judgment for plaintiffs, and defendant brings error.

Error from District Court, McClain County; F. B. Swank, Judge. Action by A. R. LeRoy, administrator of estate of M. F. Le Roy, against C. F. Meadows and others on promissory notes. Judgment for defendants, and plaintiff brings error.

<p>('Syllabus.)</p> <p>1. Master and Servant — Workmen's Compensation Law — “Hazardous Occupation” —Teamster for Road Grader.</p> <p>D. was .engaged in liauling water for a steam engine used in pulling a road grader in 'the construction of a public highway. The team driven by D. became frightened at the noise made by the engine and ran ■away. D. was thrown, from the wagon and injured. Held, that D., at the time of the injury, was engaged in a hazardous occupation as contemplated by the Workmen’s . Compensation Act.</p> <p>2. Same — Finality of Award by Industrial Commission — Action by Commission to Recover Award — Issues.</p> <p>The award made by the Industrial Commission under the Workmen’s Compensation Act becomes final and conclusive, unless appealed from as therein provided; and in an action instituted by the commission as provided in the act to recover the amount of the award so made, the only question to be considered by the trial court in the absence of fraud is whether or not the commission fiad jurisdiction in the premises.</p>

Error from District Court, Oklahoma County; Geo. W. Clark, Judge. Action by Frank Goyette against .1. E. Whitehead and Julia A. Whitehead for possession and partition of real estate. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>Appeal and Error — Time Jor Perfecting Appeal — Dismissal.</p> <p>Where a petition in error is not filed in this court until after the expiration of six months from the date of final judgment or order appealed from, this court has no jurisdiction lover the subject-matjter, and thie appeal will be dismissed.</p>

<p>('Syllabus,.)</p> <p>Appeal and Error — Dismissal—Moot Questions.</p> <p>Where an oil and gas lease by its terms expires while an action is pending for the cancellation thereof, and no practical relief can be gained by a decision, the case becomes mooted, and will be regarded as abstract and hypothetical, and not necessary for decision, and will be dismissed.</p>

<p>Error from County Court, Kiowa County; J. C. Carpenter, Judge.</p> <p>Action by Townley Metal & Hardware Company against W. R. Patterson. Judgment for plaintiff, and defendant brings error.</p>

<p>(Syllabus.)</p> <p>1. Prosecuting Attorneys — Duties of County Attorney — Submission of Issues on Agreed Statement of Facts.</p> <p>By the provisions of section 1554, Rev. Laws 1910, it is made the duty of the county attorney to appear in the district, superior, and county courts of his comity and prosecute and defend on behalf of the state or county all actions or proceedings in which the state cir county is interested or a party and he may submit the issues involved on an agreed statement of fact.</p> <p>2. Judgment — Vacation—Grounds—Fault of Attorney.</p> <p>It is the general rule that neither ignorance, mistake, nor the misapprehension of an attorney, not occasioned by the adverse party, is any ground for vacating a judgment or granting a new trial.</p> <p>3. Same — Negligence of Attorney.</p> <p>The negligence of a party is no ground for new trial or for vacating a judgment, and the negligence of the attorney is the negligence of the party.</p> <p>4. Same — Time for Proceedings to Vacate —Statute.</p> <p>By the provisions o,f section 5274, Rev. Laws 1910, proceedings to vacate or modify a judgment for fraud practiced by the successful party in obtaining said judgment, or for unavoidable casualty or misfortune preventing the party from prosecuting Qr defending, must be commenced within two years after the judgment was rendered, unless the party entitled to commence such proceedings be an infant, or a person of unsound mind, and then such proceedings must be commenced within two years after the removal of such disability.</p>

Error from District Court, Muskogee County; R. P. deGraffenried, Judge. Action by E. 0. Chapman and Mary H. Dean against J. A. Peterman, Anna Peter-man, and Elmer Peterman, to recover damages for breach of warranty, instituted in the justice court, taken on change of venue to the City Court of Muskogee. From a judgment rendered in that court in favor of the plaintiffs, the defendants appealed • to the district court.

Error from District Court, Beaver County; W. C. Crow, Judge. Action by David Boese against Walter M. ' Childress and another for specific performance of contract to sell land. Judgment °r_ defendants and plaintiff brings error.

<p>. (Syllabus.)</p> <p>1. Process — Service of Summons — Sufficiency.</p> <p>Under section 4711, Rev. Laws of Oklahoma, 1910, service made upon the defendant by leaving a copy of the summons at the usual place of residence of said defendant with his daughter-in-law, she being over the age of 15 years, and permanently residing in the home of said defendant, is sufficient to confer jurisdiction upon the court.</p> <p>2. Appeal and Error — Findings—Conclusiveness — Process — Action to Set Aside Sheriff’s Deed.</p> <p>In an action seeking to set aside a sheriff’s deed based upon a judgment regular on its face, where the sheriff’s return shows personal service of summons, the general finding of the trial court in favor of the defendant carries with it the finding that service was made in the former action as shown by the return, and such finding will not be disturbed on appeal, unless the same is clearly against the weight of the evidence.</p>

Error from District Court, Cotton County; Cham Jones, Judge. Action by Bertie Emma Potter, now Renner, and Bertha Edna Hauser against Isaac E. Shannon and wife to quiet title. Judgment for plaintiffs, and defendants bring error.

Error from District Court? Nowata County; C. W. Mason, Judge. Action by Zell Robinson, nee Cochran, against J. C. Reed and others to cancel deed for fraud. Judgment for plaintiff, and defendants bring error.

Error from District Court, Choctaw County; G. M, Barrett, Judge. Separate actions by Luther Carter against G. M. Patterson and o.thers, and against J. P. Ward and others, to recover real estate. Judgment for plaintiff in each ease, and defendants appeal.

<p>(Syllabus.)</p> <p>L Master and Servant — Workmen’s Compensation-Finality of Decisions of Industrial Commission.</p> <p>•By the provisions of section 10 of the Workmen's Compensation Law (chapter 14, Session Laws 1919) the decision of the State Industrial Commission is made final as to all questions of fact; but this is so only when there is some evidence to support such decision, and where there is absolutely no evidence to support such finding and decision, the same may be reviewed as a matter of law.</p> <p>2.' Same — Proceeding Before Commission —Burden of Proof.</p> <p>In a proceeding before the State Industrial Commission, seeking compensation for an alleged injury, the burden of proof is upon the claimant to show by the evidence that the injury complained of was accidental and arose out of and in the course of his employment,</p> <p>3. Same — Award of Commission — Evidence.</p> <p>Evidence examined, and held, that there is no evidence to support the award.</p>

Error from District Court, Osage 'County; Preston A. Shinn, Judge. Motion by Lucy N. Button and others to “quash attachment” whereby property of a nonresident had been subjected to debt at suit of J. A. Maker. Motion overruled, and movants bring error.

<p>Error from District Court, Carter County; W. F. Freeman, Judge.</p> <p>Action by Guy T. Ledbetter and Lola Led-better against the St. Louis & San Francisco Railroad Company and the Oklahoma, New Mexico & Pacific Railway Company for damages to premises. Judgment for plaintiffs, and defendants bring error.</p>

Error from District Court, Muskogee County; Irwin Donovan, Special Judge. Action .by the Territorial Trust & Surety Company against the Missouri Yalley Bridge & Iron Company and others to foreclose deed of trust. Judgment for defendant named, and plaintiff brings error.

Error from District Court, Creek County; Lucien B. Wright, Judge. Action 'by Austin E. Anthis against the Sullivan Oil & Gas Company and another to cancel an oil and gas lease. Judgment for defendants, and plaintiff 'brings error.

<p>Error from District Court, Okmulgee County; Mark L. Bozarth, Judge.</p> <p>Action by Henry Meinholtz against the Henryetta Gas 'Company. Judgment for defendant, -and plaintiff brings error.</p>

Error from District -Court, Tulsa County; Owen Owen, Judge. Action by Louisa Brown against E. R. Minshall and others to recover interest in land. Demurrer of the defendants to the ■plaintiffs’ petition sustained. Judgment entered dismissing the action of the plaintiff.

Error from District Court Tulsa County; Owen Owen, Judge. ■Action by Willie Berryhill against E. it. Minshall, J. F. 'Sweeny, Lewis R. Lewis, Howard W. Phillips, and Prairie Oil & Gas Company, in ejectment and ¡for an accounting. Judgment for plaintiff and defendants bring error.

Error from District Court, -Oklahoma County; Edward D. Oldfield. Judge. Three separate actions by the State and the State Auditor, on relation of the Attorney general, to enforce inheritance tax against the respective estates of William L. Harkness. Charles W. Harkness. and Harry S. Harkness, deceased. From adverse judgments, plaintiffs bring error.

Error from District Court, Comanche-County; Cham Jones, Judge. In the matter of probate of last will and testament of Abraham Kindt, deceased; B. M. Parmenter and others, executors. Upon appeal by Josiah Kindt and another to district court from action of county court admitting will to probate, such action was. affirmed, and they bring error.

'- Error from District Court, Garvin' County; Alvin Fi P'yeatt, ’ Special Judge. , , Actjon by ,R. A, Inman, administrator, and others ..against .the.-Western, National: Rank, a .corporation,- of Fort Worth, Texas, to cancel deeds,-etc. Judgment,for defendant, and plaintiffs appeal.

Error from District Court, Oklahoma County; John W. Hayson, Judge. Proceedings to confiscate certain furniture as being used in connection with sale of in- toxicating liquors; intervention by the Doe & Bill Furniture Company and another, claiming furniture as mortgagee and owner. Judgment of confiscation, and interveners bring error.

Error from District Court, Tulsa County; Redmond 6. Cole, Judge. Action by B. E. Caruthers against John H. Meyers for damages for personal injuries. Judgment for plaintiff, and defendant brings error.

Error from County Court, Woodward County; Clyde H. Wyand, Judge. Proceedings by -the state to forfeit automobile used in transporting intoxicating liquors, with intervention by the owner, C. W. Sutton, and the Gentry Motor Company. From judgment of forfeiture, Sutton et al. bring error, making the state and the Gentry Motor Company defendants in error.

<p>Error from District Court, Jefferson County; Cham Jones, Judge.</p> <p>Action by Nelson Cooper and V. Bronaugh against C. A. Faulkner, G. A. Faulkner, and J. S. Mullen. Judgment for plaintiff, and defendants appeal.</p>

<p>(Syllabus.)</p> <p>Appeal and Error >— Review — . Failure of Plaintiff in Error to File Brief.</p> <p>Where the plaintiff in error does not appear and fails to file brief, as required by Supreme -Court rule No. 7, and it appears -that he gave a supersedeas bond and the record shows that the appeal is without mer-</p> <p>it, this count will -affirm the judgment and render judgment upon the supersedeas bond.</p>

<p>Error from District Court, Kingfisher County; J. C. Robberts, Judge.</p> <p>Action by Edward Baker against Emma Vadder to vacate judgment of partition. Judgment for defendant, and plaintiff brings error.</p>

Error from District Court, Carter County; John D. Coffman, Assigned Judge. Action toy Welsley Lester et al. against C. R. Smith et al. to recover 120 acres of land. Judgment for the -defendants, and plaintiffs appeal.

Error from District Court, Tulsa County; Owen Owen, Judge. Action by R. D. Winsbip, doing business under tbe name R. D. Winsbip & Company, against Oklahoma Petroleum & Gasoline Company, a corporation. Judgment for plaintiff, and defendant brings error.

Error from District Court, Pontotoc County; J. W. Bolen, Judge. Action by B. F. Johnston against the Clement Mortgage Company to recover for alleged usury paid. Judgment for plaintiff, and defendant brings error.

Error from District Court, 'Custer County ; Thomas A. Edwards, Judge. Action by School District No. 24 of Custer County against Elizabeth Renick, County Superintendent of Public Instruction of Custer County, asking for an injunction against the defendant in her official capacity. Injunction denied. Plaintiff appeals.

<p>(Syllabus.)</p> <p>1. Railroads — Industrial Switches — Farm as “Industry.”</p> <p>Under section 33 of art. 9 of the Constitution of Oklahoma a farm may come within the term “other industry.”</p> <p>2. Same — Business to Justify Switch — Power of Corporation Commission.</p> <p>Under said section of the Constitution the Corporation Commission is not justified in issuing an order to reauire a railway company to maintain a switch for the benefit of any person, firm, or corporation, owning or operating any coal. lead, iron or zinc mine, or any sawmill, grain elevator or other industry, unless it appears from the showing made that the amount of business produced by suqh mine, sawmill, elevator or other industry is sufficient to justify the same.</p> <p>3. Corporation Commission — Orders — Presumption of Reasonableness.</p> <p>The prima facie presumption of the rea-' sonableness, justness, and correctness of an order of the Corporation Commission, obtaining by reason of section 22, art. 9, of the Constitution, applies only to the facts found by the Commission, or established by evidence upon which the Commission failed to make a finding; and, where a fact material to the reasonableness, justness, and correctness of an order is lacking in the finding of facts made by the Commission, and is not supplied by the evidence, the presumption obtaining by reason of said section does not apply, and on review in this court such order eannot be sustained.</p> <p>4. Railroads — Industrial Switch for Farm.— Order — Sufficiency of Evidence.</p> <p>,The evidence in this case examined, and held it fails to show that the amount of business which would be produced is sufficient to justify maintaining the switch.</p> <p>5. Same — Temporary Switch — Right of Railroad to Remove.</p> <p>When a person seeking to have a switch put in by a.railway company for his benefit accepts the terms of a letter in writing that he will pay a certain amount of the expense incurred in installing such switch, under the terms of the letter, which clearly states that the switch is temporary and shall be removed in six months, no equity arises in his favor to compel the railway company to continue to maintain such switch after the expiration of the time for which It was installed, because of the expenditure of money made by such person.</p>

Petition by W. M. Gulager and others before the State Board of Equalization, against the Muskogee Gas & Electric Company, seeking an increase in the assessed valuation of the property of said company. Petition dismissed, and petitioners appeal.

<p>Error from District Court, Choctaw County; C. E. Dudley, Judge.</p> <p>Action on guardian’s bond by Zegar Williams, Stephen Williams, Pearlie Williams, Myrtle Williams, Isham Williams, and Annie Williams, minors, by their guardian, Israel Williams, against the 'Southern Surety Company and Eastman Roberts. Judgment for plaintiffs, and defendant Surety Company brings error.</p>

<p>(Syllabus.)</p> <p>1. New (Trial — Grounds—Smallness oí Damages — Statute.</p> <p>Section 5043, Rev. Laws 1010, which provides that a new trial shall not -be granted on account of the smallness of the damages, in an action for an.injury to the person or reputation, nor in any other action where the-damages shall equal the actual pecuniary injury sustained, denies the right to grant a new trial in the kind of actions therein named on account of the smallness of the damages awarded.</p> <p>2. Appeal and Error — Harmless Error — Statute.</p> <p>Section 6005, Rev. Laws 1910, provides: “No judgment shall he set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence, or as to error in any matter of pleading or procedure, unless, in the opinion of the court to which application is made,, after an examination of the entire record, it appears that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.”</p> <p>3. Same — Conduct of Jury--€ommunicatijon with J.udget</p> <p>After a careful examination of the entire record, held that, in the opinion of the court, it does not appear that the errors complained of in the second assignment of error probably resulted in a miscarriage of justice, or constitute a substantial violation of a constitutional or statutory right.</p> <p>4. Same — Necessity for Prejudicial Error.</p> <p>While it is undoubtedly true that no communication whatever affecting the decision of the cause ought to take place between the judge and the jury after the cause has been presented to them unless in open court in the manner prescribed by the statute, it is also true that is is not every irregularity which will render the ve’-dict void, arid warrant setting it aside. This, as we have seen, denends upon another and additional «wnoiru erqtinp namely, whether the -irregularity is of such a nature as to affect the imnorti-alitv purity, and regularity of the verdict itself.</p>

Error from District Court, Bryan County: Jesse'M. Hatchett, Judge. Action by J. F. Mackey against Jack Ay-cock and Jesse Womack to enjoin obstruction of public bigbway. Judgment for defendants, and plaintiff brings error.

<p>Error from District Court. Canadian County; John W. Hayson, Judge.</p> <p>Action on note by the El Reno State Bank against C. H. Krumm and another. Judgment for plaintiff, and defendant named brings error.</p>

Error from District Court, Atoka County; J. H. Linebaugh, Judge. Action by E. D. Miller against Lee M'e-Brayer and others for rents and injunetional relief. Judgment for plaintiff, and defendants bring error.

Error from District Court, Logan County; 0. C. Smith, Judge. ' Mandamus by the State, on the relation of A. Y. Dinwiddie, County Attorney of Lo gan County, against R. E. Estus, County Clerk, and Frank Bond, County Treas., to compel attestation and registration of certain warrants. Judgment for relator, and respondents bring error.

<p>(Syllabus.)</p> <p>1. Attorney and Client — Disbarment Proceeding. — Referee’s Report — Conclusiveness.</p> <p>The report of a referee appointed to take evidence and report his findings of fact and conclusions of law in a disbarment proceeding is not conclusive as to either the findings o,f fact or the conclusions of law, but is accoilded every reasonable presumption of being correct. The burden is on the party attacking it, but it is to be freely set aside by the court if found to be incorrect.</p> <p>2. Same — Presumption of Innocence — Burden of Proof.</p> <p>In a proceeding to disbar an attorney at law, such attorney is presumed to be innocent of-the charges preferred and to have performed his duty as an officer of the court in accordance with his oath, and the evidence in support of the charges must satisfy the court to a reasonable certainty that the charges are true and warrant a judgment of disbarment.</p> <p>3. Same — Grounds for Disbarment in General.</p> <p>The law does not demand that every technical infraction of the law by an attorney shall require his disbarment, although an attorney should endeavor .to observe -literally the law, but it is those infractions of duty that involve moral turpitude and evince a depraved character that render such attorney untrustworthy and a reflection upon the bar and the court, as an attorney thereof, that demand his disbarment.</p> <p>4. Same — Sufficiency of Proof.</p> <p>In an action to disbar an attorney his guilt must be clearly proven, although the proceeding is a civil action.</p> <p>5.Same —- Delayed Settlement with Client for Money Collected — Judgment of Reprimand.</p> <p>It is the duty of an attorney, after collecting money for his client, to settle with his client at once, and although he has made a complete settlement with his client, if he failed to do so within a reasonable time, his conduct is subject to criticism and he should be reprimanded.</p>

Error from County Court, Tulsa County; H. L. Standeven, Judge. Action 'by A. B. Morrison against the Trojan Drilling Company and others upon .stated account. Judgment for plaintiff, and defendant named brings error, making its codefendants parties defendant in error.

Error from District Court, Alfalfa County; James B Cullison, Judge. Action by Erederike Stockman against.Otto Loeser and five other defendants to recover possession of an undivided interest in real estate and for rents and profits and for partition. Judgment decreeing Otto, Fred, God-frey, and Wilhelm Loeser to be the owners of the property and denying their oodefend-ants, Minnie Christensen and Frank Loeser, and the plaintiff any of the relief prayed for.

<p>Error from County Court, Tulsa County; H. L. Standeven, Judge.</p> <p>Action in replevin by Dave Hibler against E. C. Norris. Judgment for plaintiff, and defendant brings error.</p>

<p>Error from District Court, Seminole County; J. W. Bolen, Judge.</p> <p>Action for possession of land by Mark Ingram against Thomas and Rhoda Turman. Judgment for plaintiff, and defendants bring error.</p>

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Action by KICK Medicine Company against C. W. Harrington, as principal, J. Krouch, P. S. Douglas, and A. C. Neel, as guarantors, to recover on account against C. W. Harrington. Judgment for the plaintiff against F. S. Douglas. Motion for new trial sustained. Plaintiff appeals.

<p>Error^from District Court, Pittsburg Coun-ty; R. W. Higgins, Judge.</p> <p>Action by the City National Bank of Mb-Alester against Sarah J. Edwards on promissory note. Judgment for plaintiff, and defendant brings error.</p>

Error from District Court, Lincoln County; Chas. B. Wilson, Jr., Judge. Action by K. Jacobs against William.M. Rosebaugh and wife to rescind contract for sale of land. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>1.Indians — Allotments — Finality of Decisions of Federal Tribunals.</p> <p>The Commissioner to the Five Civilized Tribes, the Commissioner of Indian Affairs, and the Secretary of the Interior are primarily vested with the duty of allotting lands to members of Ithe Five Civilized Tribes who show themselves entitled there-, to, and their action in making such allotments will not be disturbed by the courts, unless it clearly appears that such officers have committed some material error of law, or that misrepresentation and fraud were practiced upon them, or that they were chargeable with fraud, or committed such gross error in their findings of fact that such findings practically amount to fraud.</p> <p>2. Same — Fraud or Error of Law — Jurisdiction of Courts.</p> <p>The courts will not disturb the decision of the Department of the Interior in a contest proceeding based purely upon findings of fact from the evidence submitted, where no fraud or error of law is shown-.</p> <p>3. Same — Decisions of Commission to Five Civilized Tribes.</p> <p>The Commission to the Five Civilized Tribes was a quasi judicial body, and had power, as between claimants for the same land, (to determine to which it should be allotted, and its findings of. fact, if there is evidence to support them, are binding upon the courts, and in the absence of fraud- or error of law the only inquiry the court can make is, Was there any evidence upon which to base such findings?</p>

Error from District Court, Washington -County; R. B. Boone, Judge Action Iby Levi -Carlile and another against the National -Oil & Development Company and another to cancel contract modifying oil lease -on minor’s land. Judgment for defendants, and plaintiffs bring error.

<p>Error from District Court, Oklahoma County; Frank Mathews, Assigned' Judge,</p> <p>Injunction by J. ,C. Walton, Mayor and Commissioner of Public Affairs of Oklahoma City, against Mike Donnelly, Commissioner of Finance and Accounting or Oklahoma City and others. Judgment for defendants, and plaintiff brings error.</p>

Error from District Court, Kay County; \. M. Bowles, Judge. Action by James A. Carder and another against the Blackwell Oil & Gas Company to cancel oil lease. Judgment for defendant-. and plaintiffs bring error.

Error from District Court, Washington County; Preston A. Shinn, Judge. Action -by Henry N. Barnes against the Winona Oil Company to cancel oil lease. Judgment for plaintiff, and defendant brings error. -

<p>(Syllabus.)</p> <p>Oil and Gas — Production Under Invalid Lease — Action by Landlord for Accounting — Measure of Recovery.</p> <p>Where a person in good faith enters into peaceable possession of land upon which he owns an oil and gas lease and produces oil and gas therefrom, and thereafter said lease is declared void or invalid, the measure of damages to the landlord in an action for an accounting for the oil and gas produced from said premises by the lessee is the value of the oil at the surface or in pipe line or tanks wherever the same may be, less the reasonable cost of producing the same.</p>

<p>Error from District Court, Jefferson County; Cham Jones, Judge.</p> <p>Action by Boston Mutual Life Insurance Company, a corporatióh, against Cassie Ellen Tucker and George Wilson Tucker, minor defendants, B. O. Tucker, legal guardian, Noma Simons, George Simons, P. H. Brooks, Blanche Brooks, et al., for foreclosure of real estate mortgage. Cassie Ellen Tucker and George Wilson Tucker, min- or defenuants, filed cross-petition against plaintiff and P. H. Brooks and Blanche Brooks, defendant. Judgment in favor of the plaintiff foreclosing the mortgage and judgment in favor of the defendants Cassie Ellen Tucker and George Wilson Tucker upon their cross-petition, against the defendants P. H. Brooks and Blanche Brooks, decreeing cancellation of deed. P. H. Brooks and Blanche Brooks appeal from judgment decreeing cancellation of deed.</p>

<p>Error from District Court, Nowata County; O. W. Mason, Judge.</p> <p>Action between the Nowahoma Oil & Gas Company et al. and Prank Longbone et al. From the judgment, the former bring error.</p>

<p>Error from District Court, Oklahoma County ; Edward D. Oldfield, Judge.</p> <p>Action by Guy J. Turner against American National ISank to recover an deposit slip; consolidated with action by O. M. Keys Commission Company against American National Lank, Guy J. Turner, et al. From adverse judgment, Turner brings error.</p>

<p>Error from District Court, Atoka County; J. H. Linebaugh, Judge.</p> <p>Action between J. B. Butler and Meady Chateau et al. From the judgment 'the former brings error.</p>

<p>(■Syllabus.)</p> <p>Appeal and Error — Case-Made—Necessity for Filing in Office of Trial Court Clerk — Dismissed.</p> <p>A case-made filed in this court which does not show that it has been filed in the office of the clerk of the trial court is a nullity, and where such a case-made remains in this court after the expiration of the statutory time, in which to perfect an appeal, on motion the appeal will be dismissed.</p>

<p>Error from District Court, McIntosh County; Harvc L. Melton, Judge.</p> <p>Action by the Missouri, Kansas & Texas Railway Company and its receiver against the City of Eufaula and certain city officers and others, for injunction against enforcement of special .assessments for certain paving. Judgment for defendants, and plaintiffs bring error.</p>

Error from District Court, Oklahoma County; John W. Hayson, Judge. Action by O. P. Vail against the Chicago, Rock Island & Pacific Railway Company fo.r damages for failure to furnish cars. Judgment for plaintiff, and defendant brings error.

<p>('Syllabus.)</p> <p>1. Trial — Conversion of Chattels by Mortgagee — Demurrer to Evidence — Determination.</p> <p>In an action against a chattel mortgagee for wrongful conversion of mortgaged property, it is not error to overrule a demurrer to the evidence where it strongly tends to show the taking and selling of the mortgaged property was wrongful.</p> <p>2. New Trial — Right to — Absence of Prejudicial Error.</p> <p>In an action by mortgagor against mortgagee for wrongful conversion of mortgaged property, where there are no substantial errors committed in the admission or rejection of testimony, nor in other proceedings, and the issues made by the pleadings are properly submitted to the jury, and no substantial errors as to any part of the proceedings are made to appear, it is not error to overrule motion for new trial.</p> <p>3. Chattel Mortgages — Conversion — Instructions — Effect of Undisputed Facts.</p> <p>In an action for wrongful conversion of mortgaged property, where the undisputed facts show, as a matter of law, that the taking of the property and conversion of same were wrongful, it is not error for the court to instruct the jury that, as, a matter of law, the taking was wrongful, and that the only thing left for the jury to determine was the extent of plaintiff’s damages, if any, and the amount, if anything, he should recover.</p> <p>4. Chattel Mortgages — Conversion—Wrongful Taking of Chattels by Mortgagee.</p> <p>Where the undisputed facts show that the taking and conversion of mortgaged property were done under the following circumstances : First, by refusing to accept any payment unless all was paid; second, by informing mortgagor -that he had better turn the property all over to him, mortgagee, and get out oí it the best be could; third, by informing the mortgagor that if he did not turn all of the property over to mortgagee, he would start criminal proceedings; fourth, by starting criminal proceedings and having mortgagor arrested and put in jail for an alleged criminal charge, which there was evidence to sustain; fifth, by taking possession of the property under a void order of replevin, and, in the meantime, selling such property and appropriating the proceeds to the mortgagee’s own benefit — such circumstances constitute a wrongful i conversion.</p> <p>5. Same — Exemplary Damages.</p> <p>In an action for wrongful conversion the mortgagor may recover exemplary damages for such wrongful conversion, in addition to the actual damages sustained.</p> <p>6. Appeal and Error — Review — Verdict— Damages for Conversion and Malicious Prosecution.</p> <p>Where there are two causes of action, one for damages for wrongful conversion and one for damages for malicious prosecution and imprisonment, and the evidence in each cause of action is sufficient to sustain the verdict, the judgment will not be reversed, although the verdict be general.</p>

Error from District Court, Comanche County; Cham Jones, Jitdge. Action by Charles H. Shaw against S, N. Cross for malicious prosecution, etc. Judgment for defendant, and plaintiff brings error. '

Error from District Court, Okmulgee County; Mark L. Bozarth, Judge. Action by Dan Hawkins and Beatrice Hawkins against A. Corbit and Joe Bryant (o cancel certain deeds affecting the title to the homestead of the plaintiffs. Judgment for defendants, and plaintiffs appeal.

<p>Appeal from the Corporation Commission.</p> <p>From order of Corporation Commission readjusting the electricity rates of the Okla-liomt Gas & Electric Company, the company appeals.</p>

Error from District Court, Oklahoma County; James I. Phelps and Edward D. Oldfield, Judges. Action by J. T. Johnston against Nancy E. Baldoek for specific performance of contract to sell real estate. Judgment for defendant, and plaintiff brings error. Also action by Nancy E. Baldoek against J. T. Johnston and wife in forcible entry and de-tainer for possession of same real estate. Judgment for plaintiff, and defendants bring error.

<p>Error from District Court, Okmulgee County; Lucien B. Wright, Judge.</p> <p>Action by Taylor Hardridge against Frank P. Lamb, M.' M. Alexander, and others, to recover real estate and quiet title, with answer and cross-petition by defendant Alexander, and answer thereto by defendant Lamb. Judgment for defendants against plaintiff, and judgment for defendant Alex- - ander against defendant Lamb, and the latter brings error.</p>

<p>(Syllabus.)</p> <p>1. Appeal and Error — Review—Equity Case.</p> <p>In an equity case this court will examine the record, consider the evidence, and render, .or cause to be rendered, such judgment as the trial court should have rendered, but will not interfere with the judgment of the lower court, unless the same is clearly against the weight of the evidence.</p> <p>2. Oil and Gas — Lease—Extension by Development.</p> <p>Where an oil and gas lease contains a provision that it shall remain in force for a term of one year from its date, and so long thereafter as oil or gas, or either of them, is produced from said land by the lessee, it is a condition precedent to the extension of the lessee's right to continue operations beyond the one year that oil or gas should bo found upon the premises in paying quantities, within one year from the date of the lease.</p> <p>3. Same.</p> <p>When gas in paying quantities was found upon the leased premises within one year from the date of said lease, the lessee thereby became vested with a limited estate in the leased premises for further operations in accordance with the terms of the lease, and such right, once vested by discovery of gas in the upper sand, will not be lost if the lessee continues to drill deeper in search of oil or gas in a lower sand, although he does not find oil or gas on the lower sand, within the limitations prescribed by the lease, and if oil or gas in paying quantities is found in the lower sand he is not required to produce gas from the upper sand, but if oil or gas in paying quantities be not found in the lower sand, production from the upper sand could not long he deferred without incurring the penalty of abandonment or forfeiture if forfeiture be prescribed.</p> <p>4. Same — Action to Cancel Lease — Judgment — Affirmance.</p> <p>Evidence examined, and held, that the judgment of the trial court, not being clearly against the weight of the evidence, will not bé disturbed.</p>

Error from District Court, McIntosh County; Mark L. Bozarth, Judge Quo warranto by the State, on the relation of E. 1. O’Reilly, County Attorney of McIntosh county, against June B. King et al., officers of consolidated school district No. 1. Judgment for relator and respondents King and Prater bring error.