Volume 88 — Oklahoma Reports

Error from Superior Court, Muskogee County; Guy F. Nelson, Judge. Action by W. R. Fetterman against Robert Franklin and Thomas Franklin for specific performance of contract and to quiet title. Judgment for the defendants, and plaintiff appeals.

Error from District Court, Oklahoma County; Edward Dewes Oldfield, Judge. Action by O. E. Gunn against the Southwestern Coal Company for breach of contract, to sell coal. Judgment for plaintiff, and defendant brings error.

<p>(Syllabus./</p> <p>1. Judgment — Action to Amend Process After Three Years — Sufficiency of .Petition.</p> <p>Where, in a legal action in the district court, a judgment is rendered against the defendant, reciting that the defendant appeared not but was in default, and that tin: court, having examined the pleadings and examined the service herein, finds that duo and legal service of summons was had on the defendant, naming him, more than 42 days prior to the return date, advising him of the pendency of this action, as is required by law, by publication of notice of summons for three weeks in the G. H., a newspaper printed and of general circulation in T. county, Okla- Also, said notice notifying said defendant that judgment wou'd be asked for in the attachment herein hail on the following described tract of land, to wit: (describing the land); and gives judgment against the defendant for the amount of the plaintiff’s debt and to sustain his attachment lien and orders me land sold to satisfy the same and that .'he sheriff make to the purchaser a deed, and decreeing that the said defendant, naming him, and all persons claiming under him be forever barred from a lien upon, right, title, interest, estate, or equity of, in, or to such lands, tenements, or any part thereof, ami where the defendant, before the expiratiou of three years from the date of the judgment, filed in the district court in a separate action the instant case, which he denominates a suit in equity, to amend the affidavit for a summons by publication, and the notice of publication and the published proof thereof, and filed in said legal notion, by striking from each certain parts thereof, and such was the only relief sought aud the only relief granted by the trial court— held: (a) That such proceeding was wholly unauthorized; (b) that the petition setting up such a state of facts did not state a cause of action in favor of the- plaintiff and against the defendant., and that the trial court should have sustained the demurrer of the defendant thereto; and (c) that the judgment of the trial court be reversed, and tbe cause femanded, with direction to the trial court to sustain tbe defendant’s demurrer and dismiss the plaintiff’s suit.</p>

<p>Error from District Court, Oklahoma County; Edward D. Oldfield, Judge.</p> <p>Prom assessment of income tax by P. C. Carter, State Auditor, Sarah Rector, by her guardians, appealed to District Court. Judgment for appellant, and the State Auditor brings error.</p>

<p>i Syllabus.)</p> <p>1. Master and Servant — Workmen’s Compensation — Liability of Employer Where Compensation Has Not Been Secured by Insurance — Jurisdiction of Industrial Commission.</p> <p>Under the Workmen’s Compensation Law, c. 14, Session Laws 1919, -an employer is liable for the compensation as provided in the act where the injured employe received an accidental injury while engaged in hazardous employment -as defined in the act, and the failure of the employer to secure the payment of such compensation by providing insurance does not relieve such employer from liability for such compensation, and the Slate industrial Commission is Tested with jurisdiction to make an award to such employe.</p> <p>2. Same — Workmen’s Compensation — Findings of Fact by Commission Conclusive on Review.</p> <p>It is only where there is no evidence to sustain the findings of fact made by the industrial Commission 'Shall) (the .Supreme Court will review such findings, and, where there is any evidence to sustain the findings of fact made by the commission, the same are conclusive in this court. Record examined, and held the award be affirmed.</p>

In the matter of application of the Quintion Relief Oil & Gas Company for modification of Order No. 1867, prohibiting the burning of natural gas in the Quinton Oil Field for the purpose of manufacturing carbon black.

<p>Error from District Court, Choctaw County ; C. E. Dudley, Judge.</p> <p>Action by William Douglas Jackson and Mary Jane Jackson, against the Illinois Bankers Life Association of Monmouth, Ill., a corporation, to recover $2,000 on a life insurance policy. Judgment for plaintiffs, and defendant brings error.</p>

<p>Error from District Court, Pawnee County; Redmond S. Cole, Judge.</p> <p>Action for divlorce between Charlie W. Martin and Ida F. Martin. From the judgment, the former brings error.</p>

Error from District Court, Stephens County; Cham Jones, Judge. Action by the City National Bank of Commerce of Wichita Falls, Tex., against the Farmers’ State Bank of Comanche, Okla. Judgment for plaintiff, and the State ex rel. Roy Walcott, State Bank Commissioner, as successor to interest of defendant, brings error.

Error from District Court, Tulsa County; Owen Owen, Judge. Action by the Sapulpa State Bank against Stephen .B. Nelson upon a promissory mote. Judgment for plaintiff, and defendant brings error.

<p>Error from County Court, Oklahoma County; W. R. Taylor.</p> <p>Action between E. E. Boyngton and J. E. Dies and another. Prom the judgment, the latter being error.</p>

<p>Error from County Court, Muskogee County ; Enloe V. Vernor, Judge.</p> <p>From judgment of County Court upholding assessments of certain omitted property by the County Treasurer, Ernest Price, owner, appeals.</p>

-Error from District Court, Jefferson County ; Cham Jones, Judge. Action by Lorena B. Fleming against C. E. Drew and another on promissory note. Judgment lor defendants, and plaintiff brings error.

Error from District Court, Stephens County; Cham Jones, Judge. Action by W. C. Green and J. E. Green against Mary Renas to have warranty deed declared mortgage and for an accounting. Judgment for plaintiffs, and defendant appeals.

Error from District Court, Lincoln County ; Hal Johnson, Judge. Action by Shelt Webster and Floyd Webster, by his next Mend, Shelt Webster, plaintiffs, against Joe Slayton, defendant, to recover damages. Judgment for the defendant, and plaintiffs brings error.

<p>(Syllabus.)</p> <p>1. Negligence — Maxims.</p> <p>The maxim of the common law is sic utere tuo ut alienum non laedas — so use your own property as not to injure another — a rule that applies to corporations as well as to individuals.</p> <p>2. Same — Forms of Action.</p> <p>Trespass on the case and other forms of action predicable on negligence are within the meaning of the maxim.</p> <p>3. Same — Extent of Liability.</p> <p>While under the maxim no man is made an absolute insurer of his acts, he is liable for injury arising from a failure to act with that degree of forethought and intelligence which characterizes the conduct of prudent men in general.</p> <p>4. Same — Definition of Negligence.</p> <p>Negligence is defined to be the failure to do what a reasonable and prudent person would ordinarily have done under the circumstances, or doing what such person would not have done.</p> <p>5. Same — Ordinary Care — Jury Question.</p> <p>What constitutes ordinary care on the part of a defendant, and whether the same is the proximate cause of the injury, are questions for the jury.</p> <p>6. Same — Judgment for Damages — Sufficiency of Evidence — Harmless Error.</p> <p>Record examined, and held: (1) that the evidence reasonably tends to support the verdict and the judgment entered thereon: (2) that the remaining errors complained of are without merit or they are harmless under section 6005, Rev. Laws 1910.</p>

Error from District Court, Payne County; O. C. Smith, Judge. Action by the Carter Oil Company against W. E. Going, County Treasurer, and certain townships to recover taxes paid under protest. Judgment for plaintiff, and defendants bring error.

<p>(Syllabus.)</p> <p>1. Executors and Administrators — Presentation of Claim.</p> <p>Section 6339, Rev. Laws 1910, provides that every claim which is due when presented to the administrator, must be supported by the affidavit of the claimant or some one in his behalf, that the amount is due, that no payments have been made which are not credited, and that there are no offsets, to the knowledge of the claimant or affiant; and further provides that “when the affidavit is made by a person other than the claimant, he must set forth' in the affidavit the reason why it is not made by claimant.” Held, that where an affidavit was made by an attorney and he gave no reason why it was not made by the claimant, the claim having been rejected, an action could not be maintained thereon and a petition based on such rejected claim did not state a cause of action.</p> <p>2. Limitation of Actions — Petition Fatally Defective</p> <p>Where the petition states no cause of action whatever, the filing thereof will not arrest the running of the statute of limitations.</p> <p>3. Same.</p> <p>Where an action was brought against an executrix on a claim, the affidavit supporting whiehi was fatally defective, and because thereof the plaintiff dismissed his action without prejudice, presented another claim to the executrix, which was rejected, and brought suit thereon, and where more than seven years had elapsed between the maturity of the notes constituting the claim and the filing of the second action, held, that the statute of limitations barred a recovery, and that the new action did not come within the saving provisions of section 4662, Rev. Laws 1910.</p>

<p>Error from District Court, Tulsa County.</p> <p>Action by-Nellie R. Shrader against Sand-Springs Park, a corporation. Judgment for plaintiff, and defendant appeals.</p>

Error from District Court, Carter County; Thos. W. Champion, Judge. Action by M. Gorman against J. M. Miller for damages for holding over real property. Judgment for plaintiff, and defendant appeals.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge. Action by the Union State Bank against Joseph Mayor and others on promissory notes. Judgment for defendant.’ plaintiff brings error.

<p>Error from District Court, Tulsa County; Redmond S. Cole, Judge.</p>

Error from District Court, Okfuskee County; John L. Norman, Judge. Petitions by Olivia Wolford to set aside adoption proceedings and for writ of ¡habeas corpus seeking the care and custody of minor child, Howard Clay Hughes, Jr., judgments for petitioner, and adverse parties, Lillian and Paul Kennedy, appeal.

<p>(Syllabus.)</p> <p>1. Descent and Distribution — “Advancements” — Statute.</p> <p>Tbe law governing advancements is stated in section 8130, Revised; Raws of 1910. as follows:</p> <p>“All gifts and grants are made as advancements. if expressed in the gift or grant to be so made, or' if charged in writing by the decedent by an advancement, or acknowledged in writing as such by the child or other successor or heir.</p> <p>&. Same — Accounts as Advancements— Judgment — Evidence.</p> <p>Record examined, and held, that the judgment of the trial court holding that the accounts sought to be charged against the distributive shares of the petitioners cannot be allowed as “advancements,” as defined by the foregoing section of the statute, is sufficiently sustained by the evidence.</p>

<p>Error from the Industrial Commission.’</p> <p>Action hy the Stal-ey-Fatrick Drilling Company and the United States Fidelity & Guaranty Company to review award of workman’s compensation to John C. Welch.</p>

<p>Error from District Court. Oklahoma County; Edward Dewes Oldfield, Judge.</p> <p>Action by the American National Bank against C. W. Crabtree and others on promissory note. Judgment for plaintiff, and defendants bring error.</p>